Ensuring Federal Enforceability of the Management of Coal Combustion 

Byproducts Consistent With Preserving Beneficial Uses 

In developing Federal coal combustion byproduct (CCB) regulations, it is critical that 

EPA ensure environmental protection without adversely affecting CCB beneficial use. 

RCRA requires that EPA consider the impact on beneficial uses in evaluating its 

regulatory options for CCBs. See RCRA § 8002(n)(8). EPA and the States have 

recognized that regulating CCBs as hazardous waste under Subtitle C would adversely 

impact their beneficial use. On the other hand, regulation of CCBs under RCRA Subtitle 

D would not adversely impact CCB beneficial use, while at the same time allowing for 

the development of federal regulations that would ensure that CCBs are managed in a 

manner protective of human health and the environment. 

EPA Has Ample Authority to Enforce Subtitle D CCB Rules – EPA’s imminent and 

substantial endangerment provision (RCRA § 7003) can be used to ensure compliance 

with facilities that pose any threat from CCB management due to a failure to comply with 

applicable Subtitle D regulations. This provision authorizes EPA to issue a unilateral 

administrative order or to seek injunctive relief to abate any situation involving the past 

or present management of any solid or hazardous waste that "may present an imminent 

and substantial endangerment to health or the environment." 42 U.S.C. § 6973(a). The 

threshold for EPA to use this authority is low. Courts have interpreted this provision 

broadly, recognizing that EPA's determinations of the factual circumstances that 

constitute an imminent and substantial endangerment are entitled to substantial 

deference. See Steven G. Bradbury (Principal Deputy Ass't Atty. Gen.) Letter to Daniel 

J. Dell'Orto (Principal Deputy General Counsel Dep't of Defense) (Dec. 1, 2008). This 

low bar for taking enforcement action against endangerment risks, buttressed by 

deference to EPA's acumen in identifying those risks, creates a potent combination for 

enforcing Subtitle D CCB regulations through RCRA § 7003. 

EPA also has separate enforcement authority under the federal Clean Water Act and the 

federal Surface Mining Control and Reclamation Act to ensure that facilities manage 

CCBs in accordance with these additional federal controls. 

 

State Enforcement Authority Under RCRA Subtitles C & D – The States would have 

primary enforcement authority for violations of federal Subtitle D CCB rules, just as they 

would for any hazardous waste rules applicable to CCBs (contrary to some suggestions, 

Subtitle C regulation of CCBs would not give EPA direct enforcement authority over 

CCBs; that authority would remain with RCRA authorized States). The States have the 

necessary tools to fully implement and enforce federal Subtitle D CCB regulations, a 

conclusion that EPA agreed with in its 2000 CCB Regulatory Determination. 

Subtitle D Regulation is the Preferable Policy Option – The regulation of CCBs as 

non-hazardous waste – i.e., federal Subtitle D controls implemented by the States and 

backstopped by EPA's broad enforcement authorities under RCRA's imminent and 

substantial endangerment provision – would ensure the safe management of CCBs 

while allowing for their continued beneficial use (which is now a $1 billion annual industry 

for CCB use in Portland cement). Under this option, EPA could proceed directly against 

any facility that violates CCB regulations in any way that poses a potential threat to 

health or the environment. Regulating CCBs as a hazardous waste, on the other hand, 

would have an adverse impact on CCB beneficial use and would not provide EPA with 

any more meaningful enforcement authority than that which is already available under 

RCRA Subtitle D.