II 

112TH CONGRESS 

2D SESSION S. 3512 

To amend subtitle D of the Solid Waste Disposal Act to facilitate recovery 

and beneficial use, and provide for the proper management and disposal, 

of materials generated by the combustion of coal and other fossil fuels. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 2, 2012 

Mr. HOEVEN (for himself, Mr. CONRAD, Mr. BAUCUS, Mr. MCCONNELL, Mr. 

KOHL, Mr. PORTMAN, Ms. LANDRIEU, Mr. BOOZMAN, Mr. MANCHIN, Mr. 

BLUNT, Mr. WARNER, Mr. JOHNSON of Wisconsin, Mr. PRYOR, Mr. 

MORAN, Mrs. MCCASKILL, Mr. ALEXANDER, Mr. NELSON of Nebraska, 

Mr. TOOMEY, Mr. NELSON of Florida, Mr. GRAHAM, Mr. CASEY, Mr. 

THUNE, Mr. WEBB, and Mr. HATCH) introduced the following bill; which 

was read twice and referred to the Committee on Environment and Public 

Works 

A BILL 

To amend subtitle D of the Solid Waste Disposal Act to 

facilitate recovery and beneficial use, and provide for 

the proper management and disposal, of materials generated by the combustion of coal and other fossil fuels. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This title may be cited as the ‘‘Coal Ash Recycling 

5 and Oversight Act of 2012’’. 


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1 SEC. 2. MANAGEMENT AND DISPOSAL OF COAL COMBUS2 TION RESIDUALS. 

3 (a) IN GENERAL.—Subtitle D of the Solid Waste Dis4 posal Act (42 U.S.C. 6941 et seq.) is amended by adding 

5 at the end the following: 

6 ‘‘SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COM7 BUSTION RESIDUALS. 

8 ‘‘(a) STATE PERMIT PROGRAMS FOR COAL COMBUS9 TION RESIDUALS.—Each State may adopt and implement 

10 a coal combustion residuals permit program. 

11 ‘‘(b) STATE ACTIONS.— 

12 ‘‘(1) NOTIFICATION.—Not later than 6 months 

13 after the date of enactment of this section (except 

14 as provided by the deadline identified under sub15 section (d)(3)(B)), the Governor of each State shall 

16 notify the Administrator, in writing, whether such 

17 State will adopt and implement a coal combustion 

18 residuals permit program. 

19 ‘‘(2) CERTIFICATION.— 

20 ‘‘(A) IN GENERAL.—Not later than 36 

21 months after the date of enactment of this sec22 tion (except as provided in subsections (f)(1)(A) 

23 and (f)(1)(C)), in the case of a State that has 

24 notified the Administrator that it will imple25 ment a coal combustion residuals permit pro26 gram, the head of the lead State agency responVerDate Mar 15 2010 01:55 Aug 11, 2012 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3512.IS S3512

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1 sible for implementing the coal combustion re2 siduals permit program shall submit to the Ad3 ministrator a certification that such coal com4 bustion residuals permit program meets the 

5 specifications described in subsection (c). 

6 ‘‘(B) CONTENTS.—A certification sub7 mitted under this paragraph shall include— 

8 ‘‘(i) a letter identifying the lead State 

9 agency responsible for implementing the 

10 coal combustion residuals permit program, 

11 signed by the head of such agency; 

12 ‘‘(ii) identification of any other State 

13 agencies involved with the implementation 

14 of the coal combustion residuals permit 

15 program; 

16 ‘‘(iii) a narrative description that pro17 vides an explanation of how the State will 

18 ensure that the coal combustion residuals 

19 permit program meets the requirements of 

20 this section, including a description of the 

21 State’s— 

22 ‘‘(I) process to inspect or other23 wise determine compliance with such 

24 permit program; 


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1 ‘‘(II) process to enforce the re2 quirements of such permit program; 

3 ‘‘(III) public participation proc4 ess for the promulgation, amendment, 

5 or repeal of regulations for, and the 

6 issuance of permits under, such per7 mit program; and 

8 ‘‘(IV) statutes, regulations, or 

9 policies pertaining to public access to 

10 information, such as groundwater 

11 monitoring data; 

12 ‘‘(iv) a legal certification that the 

13 State has, at the time of certification, fully 

14 effective statutes or regulations necessary 

15 to implement a coal combustion residuals 

16 permit program that meets the specifica17 tions described in subsection (c); and 

18 ‘‘(v) copies of State statutes and regu19 lations described in clause (iv). 

20 ‘‘(C) UPDATES.—A State may update the 

21 certification as needed to reflect changes to the 

22 coal combustion residuals permit program. 

23 ‘‘(3) MAINTENANCE OF 4005(c) OR 3006 PRO24 GRAM.—In order to adopt or implement a coal com25 bustion residuals permit program under this section 


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1 (including pursuant to subsection (f)), the State 

2 agency responsible for implementing a coal combus3 tion residuals permit program in a State shall main4 tain an approved program under section 4005(c) or 

5 an authorized program under section 3006. 

6 ‘‘(c) PERMIT PROGRAM SPECIFICATIONS.— 

7 ‘‘(1) MINIMUM REQUIREMENTS.— 

8 ‘‘(A) IN GENERAL.—A coal combustion re9 siduals permit program shall apply the revised 

10 criteria described in paragraph (2) to owners or 

11 operators of structures, including surface im12 poundments, that receive coal combustion re13 siduals. 

14 ‘‘(B) STRUCTURAL INTEGRITY.— 

15 ‘‘(i) ENGINEERING CERTIFICATION.— 

16 A coal combustion residuals permit pro17 gram shall require that an independent 

18 registered professional engineer certify 

19 that— 

20 ‘‘(I) the design of structures is in 

21 accordance with recognized and gen22 erally accepted good engineering prac23 tices for containment of the maximum 

24 volume of coal combustion residuals 


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1 and liquids appropriate for the struc2 ture; and 

3 ‘‘(II) the construction and main4 tenance of the structure will ensure 

5 dam stability. 

6 ‘‘(ii) INSPECTION.—A coal combustion 

7 residuals permit program shall require that 

8 structures that are surface impoundments 

9 be inspected not less than annually by an 

10 independent registered professional engi11 neer to assure that the design, operation, 

12 and maintenance of the surface impound13 ment is in accordance with recognized and 

14 generally accepted good engineering prac15 tices for containment of the maximum vol16 ume of coal combustion residuals and liq17 uids which can be impounded, so as to en18 sure dam stability. 

19 ‘‘(iii) DEFICIENCY.— 

20 ‘‘(I) IN GENERAL.—If the head 

21 of the agency responsible for imple22 menting the coal combustion residuals 

23 permit program determines that a 

24 structure is deficient with respect to 

25 the requirements in clauses (i) and 


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1 (ii), the head of the agency has the 

2 authority to require action to correct 

3 the deficiency according to a schedule 

4 determined by the agency. 

5 ‘‘(II) UNCORRECTED DEFI6 CIENCIES.—If a deficiency is not cor7 rected according to the schedule, the 

8 head of the agency has the authority 

9 to require that the structure close in 

10 accordance with subsection (h). 

11 ‘‘(C) LOCATION.—Each structure that first 

12 receives coal combustion residuals after the date 

13 of enactment of this section shall be constructed 

14 with a base located a minimum of 2 feet above 

15 the upper limit of the water table, unless it is 

16 demonstrated to the satisfaction of the agency 

17 responsible for implementing the coal combus18 tion residuals permit program that— 

19 ‘‘(i) the hydrogeologic characteristics 

20 of the structure and surrounding land 

21 would preclude such a requirement; and 

22 ‘‘(ii) the function and integrity of the 

23 liner system will not be adversely impacted 

24 by contact with the water table. 

25 ‘‘(D) WIND DISPERSAL.— 


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1 ‘‘(i) IN GENERAL.—The agency re2 sponsible for implementing the coal com3 bustion residuals permit program shall re4 quire that owners or operators of struc5 tures address wind dispersal of dust by re6 quiring cover, or by wetting coal combus7 tion residuals with water to a moisture 

8 content that prevents wind dispersal, facili9 tates compaction, and does not result in 

10 free liquids. 

11 ‘‘(ii) ALTERNATIVE METHODS.—Sub12 ject to the review and approval by the 

13 agency, owners or operators of structures 

14 may propose alternative methods to ad15 dress wind dispersal of dust that will pro16 vide comparable or more effective control 

17 of dust. 

18 ‘‘(E) PERMITS.—The agency responsible 

19 for implementing the coal combustion residuals 

20 permit program shall require that the owner or 

21 operator of each structure that receives coal 

22 combustion residuals after the date of enact23 ment of this section apply for and obtain a per24 mit incorporating the requirements of the coal 

25 combustion residuals permit program. 


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1 ‘‘(F) STATE NOTIFICATION AND GROUND2 WATER MONITORING.— 

3 ‘‘(i) NOTIFICATION.—Not later than 

4 the date on which a State submits a cer5 tification under subsection (b)(2), the 

6 State shall notify owners or operators of 

7 structures within the State of— 

8 ‘‘(I) the obligation to apply for 

9 and obtain a permit under subpara10 graph (E); and 

11 ‘‘(II) the groundwater monitoring 

12 requirements applicable to structures 

13 under paragraph (2)(A)(ii). 

14 ‘‘(ii) GROUNDWATER MONITORING.— 

15 Not later than 1 year after the date on 

16 which a State submits a certification under 

17 subsection (b)(2), the State shall require 

18 the owner or operator of each structure to 

19 comply with the groundwater monitoring 

20 requirements under paragraph (2)(A)(ii). 

21 ‘‘(G) AGENCY REQUIREMENTS.—Except 

22 for information described in section 1905 of 

23 title 18, United States Code, the agency respon24 sible for implementing the coal combustion re25 siduals permit program shall ensure that— 


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1 ‘‘(i) documents for permit determina2 tions are made available for public review 

3 and comment under the public participa4 tion process described in subsection 

5 (b)(2)(B)(iii)(III); 

6 ‘‘(ii) final determinations on permit 

7 applications are made known to the public; 

8 and 

9 ‘‘(iii) groundwater monitoring data 

10 collected under paragraph (2) is publicly 

11 available. 

12 ‘‘(H) AGENCY AUTHORITY.— 

13 ‘‘(i) IN GENERAL.—The agency re14 sponsible for implementing the coal com15 bustion residuals permit program has the 

16 authority to— 

17 ‘‘(I) obtain information necessary 

18 to determine whether the owner or op19 erator of a structure is in compliance 

20 with the coal combustion residuals 

21 permit program requirements of this 

22 section; 

23 ‘‘(II) conduct or require moni24 toring and testing to ensure that 

25 structures are in compliance with the 


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1 coal combustion residuals permit pro2 gram requirements of this section; 

3 and 

4 ‘‘(III) enter, at reasonable times, 

5 any site or premise subject to the coal 

6 combustion residuals permit program 

7 for the purpose of inspecting struc8 tures and reviewing records relevant 

9 to the operation and maintenance of 

10 structures. 

11 ‘‘(ii) MONITORING AND TESTING.—If 

12 monitoring or testing is conducted under 

13 clause (i)(II) by or for the agency respon14 sible for implementing the coal combustion 

15 residuals permit program, the agency shall, 

16 if requested, provide to the owner or oper17 ator— 

18 ‘‘(I) a written description of the 

19 monitoring or testing completed; 

20 ‘‘(II) at the time of sampling, a 

21 portion of each sample equal in vol22 ume or weight to the portion retained 

23 by or for the agency; and 


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1 ‘‘(III) a copy of the results of 

2 any analysis of samples collected by or 

3 for the agency. 

4 ‘‘(I) STATE AUTHORITY.—A State imple5 menting a coal combustion residuals permit 

6 program has the authority to— 

7 ‘‘(i) inspect structures; and 

8 ‘‘(ii) implement and enforce the coal 

9 combustion residuals permit program. 

10 ‘‘(J) REQUIREMENTS FOR SURFACE IM11 POUNDMENTS THAT DO NOT MEET CERTAIN

12 CRITERIA.— 

13 ‘‘(i) IN GENERAL.—In addition to the 

14 groundwater monitoring and corrective ac15 tion requirements described in paragraph 

16 (2)(A)(ii), a coal combustion residuals per17 mit program shall require a surface im18 poundment that receives coal combustion 

19 residuals after the date of enactment of 

20 this section to— 

21 ‘‘(I) comply with the require22 ments in clause (ii)(I)(aa) and sub23 clauses (II) through (IV) of clause (ii) 

24 if the surface impoundment— 

25 ‘‘(aa) does not— 


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1 ‘‘(AA) have a liner sys2 tem described in section 

3 258.40(b) of title 40, Code 

4 of Federal Regulations; and 

5 ‘‘(BB) meet the design 

6 criteria described in section 

7 258.40(a)(1) of title 40, 

8 Code of Federal Regula9 tions; and 

10 ‘‘(bb) within 10 years after 

11 the date of enactment of this sec12 tion, is required under section 

13 258.56(a) of title 40, Code of 

14 Federal Regulations, to undergo 

15 an assessment of corrective meas16 ures for any constituent identi17 fied in paragraph (2)(A)(ii) for 

18 which assessment groundwater 

19 monitoring is required; and 

20 ‘‘(II) comply with the require21 ments in clause (ii)(I)(bb) and sub22 clauses (II) through (IV) of clause (ii) 

23 if the surface impoundment— 

24 ‘‘(aa) does not— 


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1 ‘‘(AA) have a liner sys2 tem described in section 

3 258.40(b) of title 40, Code 

4 of Federal Regulations; and 

5 ‘‘(BB) meet the design 

6 criteria described in section 

7 258.40(a)(1) of title 40, 

8 Code of Federal Regula9 tions; and 

10 ‘‘(bb) as of the date of en11 actment of this section, is subject 

12 to a State corrective action re13 quirement. 

14 ‘‘(ii) REQUIREMENTS.— 

15 ‘‘(I) DEADLINES.— 

16 ‘‘(aa) IN GENERAL.—Except 

17 as provided in item (bb), sub18 clause (IV), and clause (iii), the 

19 groundwater protection standard 

20 for structures identified in clause 

21 (i)(I) established by the agency 

22 responsible for implementing the 

23 coal combustion residuals permit 

24 program under section 258.55(h) 

25 or 258.55(i) of title 40, Code of 


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1 Federal Regulations, for any con2 stituent for which corrective 

3 measures are required shall be 

4 met— 

5 ‘‘(AA) as soon as prac6 ticable at the relevant point 

7 of compliance, as described 

8 in section 258.40(d) of title 

9 40, Code of Federal Regula10 tions; and 

11 ‘‘(BB) not later than 

12 10 years after the date of 

13 enactment of this section. 

14 ‘‘(bb) IMPOUNDMENTS SUB15 JECT TO STATE CORRECTIVE AC16 TION REQUIREMENTS.—Except 

17 as provided in subclause (IV), the 

18 groundwater protection standard 

19 for structures identified in clause 

20 (i)(II) established by the agency 

21 responsible for implementing the 

22 coal combustion residuals permit 

23 program under section 258.55(h) 

24 or 258.55(i) of title 40, Code of 

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1 stituent for which corrective 

2 measures are required shall be 

3 met— 

4 ‘‘(AA) as soon as prac5 ticable at the relevant point 

6 of compliance, as described 

7 in section 258.40(d) of title 

8 40, Code of Federal Regula9 tions; and 

10 ‘‘(BB) not later than 8 

11 years after the date of en12 actment of this section. 

13 ‘‘(II) CLOSURE.—If the deadlines 

14 under clause (I) are not satisfied, the 

15 structure shall cease receiving coal 

16 combustion residuals and initiate clo17 sure under subsection (h). 

18 ‘‘(III) INTERIM MEASURES.— 

19 ‘‘(aa) IN GENERAL.—Except 

20 as provided in item (bb), not 

21 later than 90 days after the date 

22 on which the assessment of cor23 rective measures is initiated, the 

24 owner or operator shall imple25 ment interim measures, as necVerDate Mar 15 2010 01:55 Aug 11, 2012 Jkt 019200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S3512.IS S3512

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1 essary, under the factors in sec2 tion 258.58(a)(3) of title 40, 

3 Code of Federal Regulations. 

4 ‘‘(bb) IMPOUNDMENTS SUB5 JECT TO STATE CORRECTIVE AC6 TION REQUIREMENTS.—Item (aa) 

7 shall only apply to surface im8 poundments subject to a State 

9 corrective action requirement as 

10 of the date of enactment of this 

11 section if the owner or operator 

12 has not implemented interim 

13 measures, as necessary, under 

14 the factors in section 

15 258.58(a)(3) of title 40, Code of 

16 Federal Regulations. 

17 ‘‘(IV) EXTENSION OF DEAD18 LINE.— 

19 ‘‘(aa) IN GENERAL.—Except 

20 as provided in item (bb), the 

21 deadline for meeting a ground22 water protection standard under 

23 subclause (I) may be extended by 

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1 siduals permit program, after op2 portunity for public notice and 

3 comment under the public par4 ticipation process described in 

5 subsection (b)(2)(B)(iii)(III), 

6 based on— 

7 ‘‘(AA) the effectiveness 

8 of any interim measures im9 plemented by the owner or 

10 operator of the facility under 

11 section 258.58(a)(3) of title 

12 40, Code of Federal Regula13 tions; 

14 ‘‘(BB) the level of 

15 progress demonstrated in 

16 meeting the groundwater 

17 protection standard; 

18 ‘‘(CC) the potential for 

19 other adverse human health 

20 or environmental exposures 

21 attributable to the contami22 nation from the surface im23 poundment undergoing cor24 rective action; and 


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1 ‘‘(DD) the lack of avail2 able alternative management 

3 capacity for the coal com4 bustion residuals and related 

5 materials managed in the 

6 impoundment at the facility 

7 at which the impoundment 

8 is located if the owner or op9 erator has used best efforts, 

10 as necessary, to design, ob11 tain any necessary permits, 

12 finance, construct, and 

13 render operational the alter14 native management capacity 

15 during the time period for 

16 meeting a groundwater pro17 tection standard in sub18 clause (I). 

19 ‘‘(bb) EXCEPTION.—The 

20 deadlines under subclause (I) 

21 shall not be extended if there has 

22 been contamination of public or 

23 private drinking water systems 

24 attributable to a surface im25 poundment undergoing corrective 


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1 action, unless the contamination 

2 has been addressed by providing 

3 a permanent replacement water 

4 system. 

5 ‘‘(iii) SUBSEQUENT CLOSURE.— 

6 ‘‘(I) IN GENERAL.—In addition 

7 to the groundwater monitoring and 

8 corrective action requirements de9 scribed in paragraph (2)(A)(ii), a coal 

10 combustion residuals permit program 

11 shall require a surface impoundment 

12 that receives coal combustion residu13 als after the date of enactment of this 

14 section to comply with the require15 ments in subclause (II) if the surface 

16 impoundment— 

17 ‘‘(aa) does not— 

18 ‘‘(AA) have a liner sys19 tem described in section 

20 258.40(b) of title 40, Code 

21 of Federal Regulations; and 

22 ‘‘(BB) meet the design 

23 criteria described in section 

24 258.40(a)(1) of title 40, 


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1 Code of Federal Regula2 tions; 

3 ‘‘(bb) more than 10 years 

4 after the date of enactment of 

5 this section, is required under 

6 section 258.56(a) of title 40, 

7 Code of Federal Regulations, to 

8 undergo an assessment of correc9 tive measures for any constituent 

10 identified in paragraph (2)(A)(ii) 

11 for which assessment ground12 water monitoring is required; and 

13 ‘‘(cc) is not subject to the 

14 requirements in clause (ii). 

15 ‘‘(II) REQUIREMENTS.— 

16 ‘‘(aa) CLOSURE.—The struc17 tures identified in subclause (I) 

18 shall cease receiving coal combus19 tion residuals and initiate closure 

20 in accordance with subsection (h) 

21 after alternative management ca22 pacity for the coal combustion re23 siduals and related materials 

24 managed in the impoundment at 

25 the facility is available. 


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1 ‘‘(bb) BEST EFFORTS.—The 

2 alternative management capacity 

3 shall be developed as soon as 

4 practicable with the owner or op5 erator using best efforts to de6 sign, obtain necessary permits, fi7 nance, construct, and render 

8 operational the alternative man9 agement capacity. 

10 ‘‘(cc) ALTERNATIVE MAN11 AGEMENT CAPACITY PLAN.—The 

12 owner or operator shall, in col13 laboration with the agency re14 sponsible for implementing the 

15 coal combustion residuals permit 

16 program, prepare a written plan 

17 that describes the steps necessary 

18 to develop the alternative man19 agement capacity and includes a 

20 schedule for completion. 

21 ‘‘(dd) PUBLIC PARTICIPA22 TION.—The plan described in 

23 item (cc) shall be subject to pub24 lic notice and comment under the 

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1 scribed in subsection 

2 (b)(2)(B)(iii)(III). 

3 ‘‘(2) REVISED CRITERIA.—The revised criteria 

4 described in this paragraph are— 

5 ‘‘(A) the revised criteria for design, 

6 groundwater monitoring, corrective action, clo7 sure, and post-closure, for structures, includ8 ing— 

9 ‘‘(i) for new structures, and lateral ex10 pansions of existing structures, that first 

11 receive coal combustion residuals after the 

12 date of enactment of this section, the re13 vised criteria regarding design require14 ments described in section 258.40 of title 

15 40, Code of Federal Regulations, except 

16 that the leachate collection system require17 ments described in section 258.40(a)(2) of 

18 title 40, Code of Federal Regulations do 

19 not apply to structures that are surface 

20 impoundments; 

21 ‘‘(ii) for all structures that receive 

22 coal combustion residuals after the date of 

23 enactment of this section, the revised cri24 teria regarding groundwater monitoring 

25 and corrective action requirements deVerDate Mar 15 2010 01:55 Aug 11, 2012 Jkt 019200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S3512.IS S3512

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1 scribed in subpart E of part 258 of title 

2 40, Code of Federal Regulations, except 

3 that, for the purposes of this paragraph, 

4 the revised criteria shall also include— 

5 ‘‘(I) for the purposes of detection 

6 monitoring, the constituents boron, 

7 chloride, conductivity, fluoride, mer8 cury, pH, sulfate, sulfide, and total 

9 dissolved solids; and 

10 ‘‘(II) for the purposes of assess11 ment monitoring, establishing a 

12 groundwater protection standard, and 

13 assessment of corrective measures, the 

14 constituents aluminum, boron, chlo15 ride, fluoride, iron, manganese, molyb16 denum, pH, sulfate, and total dis17 solved solids; 

18 ‘‘(iii) for all structures that receive 

19 coal combustion residuals after the date of 

20 enactment of this section, in a manner 

21 consistent with subsection (h), the revised 

22 criteria for closure described in subsections 

23 (a) through (c) and (h) through (j) of sec24 tion 258.60 of title 40, Code of Federal 

25 Regulations; and 


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1 ‘‘(iv) for all structures that receive 

2 coal combustion residuals after the date of 

3 enactment of this section, the revised cri4 teria for post-closure care described in sec5 tion 258.61 of title 40, Code of Federal 

6 Regulations, except for the requirement de7 scribed in subsection (a)(4) of that section; 

8 ‘‘(B) the revised criteria for location re9 strictions described in— 

10 ‘‘(i) for new structures, and lateral ex11 pansions of existing structures, that first 

12 receive coal combustion residuals after the 

13 date of enactment of this section, sections 

14 258.11 through 258.15 of title 40, Code of 

15 Federal Regulations; and 

16 ‘‘(ii) for existing structures that re17 ceive coal combustion residuals after the 

18 date of enactment of this section, sections 

19 258.11 and 258.15 of title 40, Code of 

20 Federal Regulations; 

21 ‘‘(C) for all structures that receive coal 

22 combustion residuals after the date of enact23 ment of this section, the revised criteria for air 

24 quality described in section 258.24 of title 40, 

25 Code of Federal Regulations; 


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1 ‘‘(D) for all structures that receive coal 

2 combustion residuals after the date of enact3 ment of this section, the revised criteria for fi4 nancial assurance described in subpart G of 

5 part 258 of title 40, Code of Federal Regula6 tions; 

7 ‘‘(E) for all structures that receive coal 

8 combustion residuals after the date of enact9 ment of this section, the revised criteria for sur10 face water described in section 258.27 of title 

11 40, Code of Federal Regulations; 

12 ‘‘(F) for all structures that receive coal 

13 combustion residuals after the date of enact14 ment of this section, the revised criteria for rec15 ordkeeping described in section 258.29 of title 

16 40, Code of Federal Regulations; 

17 ‘‘(G) for landfills and other land-based 

18 units, other than surface impoundments, that 

19 receive coal combustion residuals after the date 

20 of enactment of this section, the revised criteria 

21 for run-on and run-off control systems de22 scribed in section 258.26 of title 40, Code of 

23 Federal Regulations; and 

24 ‘‘(H) for surface impoundments that re25 ceive coal combustion residuals after the date of 


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1 enactment of this section, the revised criteria 

2 for run-off control systems described in section 

3 258.26(a)(2) of title 40, Code of Federal Regu4 lations. 

5 ‘‘(d) WRITTEN NOTICE AND OPPORTUNITY TO REM6 EDY.— 

7 ‘‘(1) IN GENERAL.—The Administrator shall 

8 provide to a State written notice and an opportunity 

9 to remedy deficiencies in accordance with paragraph 

10 (2) if at any time the State— 

11 ‘‘(A) does not satisfy the notification re12 quirement under subsection (b)(1); 

13 ‘‘(B) has not submitted a certification 

14 under subsection (b)(2); 

15 ‘‘(C) does not satisfy the maintenance re16 quirement under subsection (b)(3); 

17 ‘‘(D) is not implementing a coal combus18 tion residuals permit program that— 

19 ‘‘(i) meets the specifications described 

20 in subsection (c); or 

21 ‘‘(ii)(I) is consistent with the certifi22 cation under subsection (b)(2)(B)(iii); and 

23 ‘‘(II) maintains fully effective statutes 

24 or regulations necessary to implement a 


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1 coal combustion residuals permit program; 

2 or 

3 ‘‘(E) does not make available to the Ad4 ministrator within 90 days of a written request, 

5 specific information necessary for the Adminis6 trator to ascertain whether the State has com7 plied with subparagraphs (A) through (D). 

8 ‘‘(2) REQUEST.—If the request described in 

9 paragraph (1)(E) is made pursuant to a petition of 

10 the Administrator, the Administrator shall only 

11 make the request if the Administrator does not pos12 sess the information necessary to ascertain whether 

13 the State has complied with subparagraphs (A) 

14 through (D) of paragraph (1). 

15 ‘‘(3) CONTENTS OF NOTICE; DEADLINE FOR RE16 SPONSE.—A notice provided under this subsection 

17 shall— 

18 ‘‘(A) include findings of the Administrator 

19 detailing any applicable deficiencies in— 

20 ‘‘(i) compliance by the State with the 

21 notification requirement under subsection 

22 (b)(1); 

23 ‘‘(ii) compliance by the State with the 

24 certification requirement under subsection 

25 (b)(2); 


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1 ‘‘(iii) compliance by the State with the 

2 maintenance requirement under subsection 

3 (b)(3); 

4 ‘‘(iv) the State coal combustion re5 siduals permit program in meeting the 

6 specifications described in subsection (c); 

7 and 

8 ‘‘(v) compliance by the State with the 

9 request under paragraph (1)(E); and 

10 ‘‘(B) identify, in collaboration with the 

11 State, a reasonable deadline, by which the State 

12 shall remedy the deficiencies detailed under 

13 subparagraph (A), which shall be— 

14 ‘‘(i) in the case of a deficiency de15 scribed in clauses (i) through (iv) of sub16 paragraph (A), not earlier than 180 days 

17 after the date on which the State receives 

18 the notice; and 

19 ‘‘(ii) in the case of a deficiency de20 scribed in subparagraph (A)(v), not later 

21 than 90 days after the date on which the 

22 State receives the notice. 

23 ‘‘(e) IMPLEMENTATION BY ADMINISTRATOR.— 


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1 ‘‘(1) IN GENERAL.—The Administrator shall 

2 implement a coal combustion residuals permit pro3 gram for a State only if— 

4 ‘‘(A) the Governor of the State notifies the 

5 Administrator under subsection (b)(1) that the 

6 State will not adopt and implement a permit 

7 program; 

8 ‘‘(B) the State has received a notice under 

9 subsection (d) and the Administrator deter10 mines, after providing a 30-day period for no11 tice and public comment, that the State has 

12 failed, by the deadline identified in the notice 

13 under subsection (d)(3)(B), to remedy the defi14 ciencies detailed in the notice under subsection 

15 (d)(3)(A); or 

16 ‘‘(C) the State informs the Administrator, 

17 in writing, that such State will no longer imple18 ment such a permit program. 

19 ‘‘(2) REVIEW.—A State may obtain a review of 

20 a determination by the Administrator under this 

21 subsection as if the determination was a final regu22 lation for purposes of section 7006. 

23 ‘‘(3) OTHER STRUCTURES.—For structures lo24 cated on property within the exterior boundaries of 

25 a State for which the State does not have authority 


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1 or jurisdiction to regulate, the Administrator shall 

2 implement a coal combustion residuals permit pro3 gram only for those structures. 

4 ‘‘(4) REQUIREMENTS.—If the Administrator 

5 implements a coal combustion residuals permit pro6 gram for a State under paragraph (1) or (3), the 

7 permit program shall consist of the specifications de8 scribed in subsection (c). 

9 ‘‘(5) ENFORCEMENT.— 

10 ‘‘(A) IN GENERAL.—If the Administrator 

11 implements a coal combustion residuals permit 

12 program for a State under paragraph (1)— 

13 ‘‘(i) the authorities referred to in sec14 tion 4005(c)(2)(A) shall apply with respect 

15 to coal combustion residuals and structures 

16 for which the Administrator is imple17 menting the coal combustion residuals per18 mit program; and 

19 ‘‘(ii) the Administrator may use those 

20 authorities to inspect, gather information, 

21 and enforce the requirements of this sec22 tion in the State. 

23 ‘‘(B) OTHER STRUCTURES.—If the Admin24 istrator implements a coal combustion residuals 


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1 permit program for a State under paragraph 

2 (3)— 

3 ‘‘(i) the authorities referred to in sec4 tion 4005(c)(2)(A) shall apply with respect 

5 to coal combustion residuals and structures 

6 for which the Administrator is imple7 menting the coal combustion residuals per8 mit program; and 

9 ‘‘(ii) the Administrator may use those 

10 authorities to inspect, gather information, 

11 and enforce the requirements of this sec12 tion for the structures for which the Ad13 ministrator is implementing the coal com14 bustion residuals permit program. 

15 ‘‘(f) STATE CONTROL AFTER IMPLEMENTATION BY

16 ADMINISTRATOR.— 

17 ‘‘(1) STATE CONTROL.— 

18 ‘‘(A) NEW ADOPTION AND IMPLEMENTA19 TION BY STATE.—For a State for which the 

20 Administrator is implementing a coal combus21 tion residuals permit program under subsection 

22 (e)(1)(A), the State may adopt and implement 

23 such a permit program by— 


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1 ‘‘(i) notifying the Administrator that 

2 the State will adopt and implement such a 

3 permit program; 

4 ‘‘(ii) not later than 6 months after the 

5 date of such notification, submitting to the 

6 Administrator a certification under sub7 section (b)(2); and 

8 ‘‘(iii) receiving from the Adminis9 trator— 

10 ‘‘(I) a determination, after pro11 viding a 30-day period for notice and 

12 public comment that the State coal 

13 combustion residuals permit program 

14 meets the specifications described in 

15 subsection (c); and 

16 ‘‘(II) a timeline for transition of 

17 control of the coal combustion residu18 als permit program. 

19 ‘‘(B) REMEDYING DEFICIENT PERMIT PRO20 GRAM.—For a State for which the Adminis21 trator is implementing a coal combustion re22 siduals permit program under subsection 

23 (e)(1)(B), the State may adopt and implement 

24 such a permit program by— 


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1 ‘‘(i) remedying only the deficiencies 

2 detailed in the notice provided under sub3 section (d)(3)(A); and 

4 ‘‘(ii) receiving from the Adminis5 trator— 

6 ‘‘(I) a determination, after pro7 viding a 30-day period for notice and 

8 public comment, that the deficiencies 

9 detailed in such notice have been rem10 edied; and 

11 ‘‘(II) a timeline for transition of 

12 control of the coal combustion residu13 als permit program. 

14 ‘‘(C) RESUMPTION OF IMPLEMENTATION

15 BY STATE.—For a State for which the Adminis16 trator is implementing a coal combustion re17 siduals permit program under subsection 

18 (e)(1)(C), the State may adopt and implement 

19 such a permit program by— 

20 ‘‘(i) notifying the Administrator that 

21 the State will adopt and implement such a 

22 permit program; 

23 ‘‘(ii) not later than 6 months after the 

24 date of such notification, submitting to the 


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1 Administrator a certification under sub2 section (b)(2); and 

3 ‘‘(iii) receiving from the Adminis4 trator— 

5 ‘‘(I) a determination, after pro6 viding a 30-day period for notice and 

7 public comment, that the State coal 

8 combustion residuals permit program 

9 meets the specifications described in 

10 subsection (c); and 

11 ‘‘(II) a timeline for transition of 

12 control of the coal combustion residu13 als permit program. 

14 ‘‘(2) REVIEW OF DETERMINATION.— 

15 ‘‘(A) DETERMINATION REQUIRED.—The 

16 Administrator shall make a determination 

17 under paragraph (1) not later than 90 days 

18 after the date on which the State submits a cer19 tification under paragraph (1)(A)(ii) or 

20 (1)(C)(ii), or notifies the Administrator that the 

21 deficiencies have been remedied pursuant to 

22 paragraph (1)(B)(i), as applicable. 

23 ‘‘(B) REVIEW.—A State may obtain a re24 view of a determination by the Administrator 

25 under paragraph (1) as if such determination 


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1 was a final regulation for purposes of section 

2 7006. 

3 ‘‘(3) IMPLEMENTATION DURING TRANSITION.— 

4 ‘‘(A) EFFECT ON ACTIONS AND ORDERS.— 

5 Actions taken or orders issued pursuant to a 

6 coal combustion residuals permit program shall 

7 remain in effect if— 

8 ‘‘(i) a State takes control of its coal 

9 combustion residuals permit program from 

10 the Administrator under paragraph (1); or 

11 ‘‘(ii) the Administrator takes control 

12 of a coal combustion residuals permit pro13 gram from a State under subsection (e). 

14 ‘‘(B) CHANGE IN REQUIREMENTS.—Sub15 paragraph (A) shall apply to such actions and 

16 orders until such time as the Administrator or 

17 the head of the lead State agency responsible 

18 for implementing the coal combustion residuals 

19 permit program, as applicable— 

20 ‘‘(i) implements changes to the re21 quirements of the coal combustion residu22 als permit program with respect to the 

23 basis for the action or order; or 


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1 ‘‘(ii) certifies the completion of a cor2 rective action that is the subject of the ac3 tion or order. 

4 ‘‘(4) SINGLE PERMIT PROGRAM.—If a State 

5 adopts and implements a coal combustion residuals 

6 permit program under this subsection, the Adminis7 trator shall cease to implement the permit program 

8 implemented under subsection (e)(1) for such State. 

9 ‘‘(g) EFFECT ON DETERMINATION UNDER 4005(c) 

10 OR 3006.—The Administrator shall not consider the im11 plementation of a coal combustion residuals permit pro12 gram by the Administrator under subsection (e) in making 

13 a determination of approval for a permit program or other 

14 system of prior approval and conditions under section 

15 4005(c) or of authorization for a program under section 

16 3006. 

17 ‘‘(h) CLOSURE.— 

18 ‘‘(1) IN GENERAL.—If it is determined, pursu19 ant to a coal combustion residuals permit program, 

20 that a structure should close, the time period and 

21 method for the closure of such structure shall be set 

22 forth in a closure plan that establishes a deadline for 

23 completion and that takes into account the nature 

24 and the site-specific characteristics of the structure 

25 to be closed. 


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1 ‘‘(2) SURFACE IMPOUNDMENT.—In the case of 

2 a surface impoundment, the closure plan under 

3 paragraph (1) shall require, at a minimum, the re4 moval of liquid and the stabilization of remaining 

5 waste, as necessary to support the final cover. 

6 ‘‘(i) AUTHORITY.— 

7 ‘‘(1) STATE AUTHORITY.—Nothing in this sec8 tion shall preclude or deny any right of any State to 

9 adopt or enforce any regulation or requirement re10 specting coal combustion residuals that is more 

11 stringent or broader in scope than a regulation or 

12 requirement under this section. 

13 ‘‘(2) AUTHORITY OF THE ADMINISTRATOR.— 

14 ‘‘(A) IN GENERAL.—Except as provided in 

15 subsections (d) and (e) and section 6005, the 

16 Administrator shall, with respect to the regula17 tion of coal combustion residuals, defer to the 

18 States pursuant to this section. 

19 ‘‘(B) IMMINENT HAZARD.—Nothing in this 

20 section shall be construed as affecting the au21 thority of the Administrator under section 7003 

22 with respect to coal combustion residuals. 

23 ‘‘(C) ENFORCEMENT ASSISTANCE ONLY

24 UPON REQUEST.—Upon request from the head 

25 of a lead State agency that is implementing a 


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1 coal combustion residuals permit program, the 

2 Administrator may provide to such State agen3 cy only the enforcement assistance requested. 

4 ‘‘(D) CONCURRENT ENFORCEMENT.—Ex5 cept as provided in subparagraph (C), the Ad6 ministrator shall not have concurrent enforce7 ment authority when a State is implementing a 

8 coal combustion residuals permit program. 

9 ‘‘(E) OTHER AUTHORITY.—The Adminis10 trator shall not have authority to finalize the 

11 proposed rule published at pages 35128 

12 through 35264 of volume 75 of the Federal 

13 Register (June 21, 2010). 

14 ‘‘(3) CITIZEN SUITS.—Nothing in this section 

15 shall be construed to affect the authority of a person 

16 to commence a civil action in accordance with sec17 tion 7002. 

18 ‘‘(j) MINE RECLAMATION ACTIVITIES.—A coal com19 bustion residuals permit program implemented by the Ad20 ministrator under subsection (e) shall not apply to the uti21 lization, placement, and storage of coal combustion residu22 als at surface mining and reclamation operations. 

23 ‘‘(k) DEFINITIONS.—In this section: 

24 ‘‘(1) COAL COMBUSTION RESIDUALS.—The 

25 term ‘coal combustion residuals’ means— 


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1 ‘‘(A) the solid wastes listed in section 

2 3001(b)(3)(A)(i), including recoverable mate3 rials from such wastes; 

4 ‘‘(B) coal combustion wastes that are co5 managed with wastes produced in conjunction 

6 with the combustion of coal, provided that such 

7 wastes are not segregated and disposed of sepa8 rately from the coal combustion wastes and 

9 comprise a relatively small proportion of the 

10 total wastes being disposed in the structure; 

11 ‘‘(C) fluidized bed combustion wastes; 

12 ‘‘(D) wastes from the co-burning of coal 

13 with non-hazardous secondary materials, pro14 vided that coal makes up at least 50 percent of 

15 the total fuel burned; and 

16 ‘‘(E) wastes from the co-burning of coal 

17 with materials described in subparagraph (A) 

18 that are recovered from monofills. 

19 ‘‘(2) COAL COMBUSTION RESIDUALS PERMIT

20 PROGRAM.—The term ‘coal combustion residuals 

21 permit program’ means all of the authorities, activi22 ties, and procedures that comprise the system of 

23 prior approval and conditions implemented by or for 

24 a State to regulate the management and disposal of 

25 coal combustion residuals. 


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1 ‘‘(3) CODE OF FEDERAL REGULATIONS.—The 

2 term ‘Code of Federal Regulations’ means the Code 

3 of Federal Regulations (as in effect on the date of 

4 enactment of this section) or any successor regula5 tions. 

6 ‘‘(4) PERMIT; PRIOR APPROVAL AND CONDI7 TIONS.—The terms ‘permit’ and ‘prior approval and 

8 conditions’ mean any authorization, license, or equiv9 alent control document that incorporates the re10 quirements and revised criteria described in para11 graphs (1) and (2) of subsection (c), respectively. 

12 ‘‘(5) REVISED CRITERIA.—The term ‘revised 

13 criteria’ means the criteria promulgated for munic14 ipal solid waste landfill units under section 4004(a) 

15 and under section 1008(a)(3), as revised under sec16 tion 4010(c). 

17 ‘‘(6) STRUCTURE.— 

18 ‘‘(A) IN GENERAL.—Except as provided in 

19 subparagraph (B), the term ‘structure’ means a 

20 landfill, surface impoundment, or other land21 based unit which may receive coal combustion 

22 residuals. 

23 ‘‘(B) DE MINIMIS RECEIPT.—The term 

24 ‘structure’ does not include any land-based unit 

25 that receives only de minimis quantities of coal 


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1 combustion residuals if the presence of coal 

2 combustion residuals is incidental to the mate3 rial managed in the unit.’’. 

4 (b) CONFORMING AMENDMENT.—The table of con5 tents contained in section 1001 of the Solid Waste Dis6 posal Act is amended by inserting after the item relating 

7 to section 4010 the following: 

‘‘Sec. 4011. Management and disposal of coal combustion residuals.’’. 

8 SEC. 3. 2000 REGULATORY DETERMINATION. 

9 Nothing in this Act, or the amendments made by this 

10 Act, shall be construed to alter in any manner the Envi11 ronmental Protection Agency’s regulatory determination 

12 entitled ‘‘Notice of Regulatory Determination on Wastes 

13 from the Combustion of Fossil Fuels’’, published at 65 

14 Fed. Reg. 32214 (May 22, 2000), that the fossil fuel com15 bustion wastes addressed in that determination do not 

16 warrant regulation under subtitle C of the Solid Waste 

17 Disposal Act (42 U.S.C. 6921 et seq.). 

18 SEC. 4. TECHNICAL ASSISTANCE. 

19 Nothing in this Act, or the amendments made by this 

20 Act, shall be construed to affect the authority of a State 

21 to request, or the Administrator of the Environmental 

22 Protection Agency to provide, technical assistance under 

23 the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.). 


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1 SEC. 5. FEDERAL POWER ACT. 

2 Nothing in this Act, or the amendments made by this 

3 Act, shall be construed to affect the obligations of the 

4 owner or operator of a structure (as defined in section 

5 4011 of the Solid Waste Disposal Act, as added by this 

6 Act) under section 215(b)(1) of the Federal Power Act 

7 (16 U.S.C. 824o(b)(1)). 

Æ 


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