Analysis of Recent Proposals to Amend the Resource Conservation and Recovery Act (RCRA) to Create a Coal Combustion Residuals Permit Program
Released: 2013-03-19T00:00:00

Introduction

On October 14, 2011, the House passed the Coal Residuals Reuse and Management Act ( H.R. 2273 ). On August 2, 2012, the Coal Ash Recycling and Oversight Act of 2012 (S. 3512) was introduced in the Senate. Each bill would have amended the Solid Waste Disposal Act—more commonly referred to as the Resource Conservation and Recovery Act of 1976 (RCRA; 42 U.S.C. §6901 et seq.). The House subsequently incorporated the provisions of the Senate bill in Title IV of H.R. 3409, the Stop the War on Coal Act, passed in the House on September 12, 2012. The bills would have created a framework that states could use to create permit programs for the "management and disposal" of coal combustion residuals (CCRs, also referred to generally as "coal ash"). In states that did not create a program that met program specifications included in the proposed amendment, or in other specified circumstances, the Environmental Protection Agency (EPA) would have been required to implement a program.

Each bill would have added to Subtitle D of RCRA a new Section 4011, Management and Disposal of Coal Combustion Residuals. Compared to H.R. 2273 , the Senate-introduced bill (S. 3512 and Title IV of H.R. 3409) included more detailed provisions applicable to the program. However, the approach to creating state permit programs was largely the same in each bill. That approach is unique within RCRA. As a result, state permit programs implementing regulations applicable to CCR disposal, created in accordance with statutory permit program specifications, would differ from other permit programs created in RCRA.

Legislation addressing CCRs may be considered in the 113 th Congress. Analysis of selected elements of the legislation considered during the 112 th Congress is provided in this report as background for future legislation that may take a similar approach. That approach, proposed in the 112 th Congress, was to create state programs to regulate a particular type of waste (CCRs) using as its framework existing federal-state programs to regulate municipal solid waste (MSW) landfills. For that existing program, pursuant to directives in Subtitle D of RCRA, EPA promulgated federal regulatory criteria applicable to owners and operators of MSW landfills; states adopted those federal criteria and implemented them using a permit program; and EPA approved each state permit program, based on EPA's determination of whether each program was adequate to ensure facility compliance with baseline federal regulatory criteria. Further, as explicitly required by Congress, the federal criteria promulgated by EPA, applicable to MSW landfills, were required to be those necessary to "protect human health and the environment."

The approach used in the 112 th Congress bills would not have provided an explicit mandate that EPA or the states promulgate regulations applicable to CCR disposal facilities. Instead, the proposed Section 4011 would itself list Permit Program Specifications that individual states would be required to apply to "CCR structures." Using this approach to creating largely state-based programs, it is difficult to determine in advance how such statutory specifications may be interpreted by each state.

The proposed amendment would also have provided no explicit authority for EPA to directly enforce regulatory criteria applicable to CCR disposal units (short of EPA running a CCR Permit Program for a state). Such authority provided to EPA in other parts of RCRA (and in some other pollution control laws) has generally served as an incentive to states to adopt and implement federal regulatory criteria. The absence of such authority makes it difficult to anticipate the degree to which EPA may encourage states to adopt and implement a program to regulate CCRs that would comply with the Permit Program Specifications and other relevant provisions in the proposed Section 4011.

The bills considered in the 112 th Congress were proposed in the wake of a June 2010 proposal by EPA to regulate CCRs. This report provides background and selected information regarding that EPA proposal, including EPA's determination that CCRs should be regulated according to national waste management standards, rather than standards determined by individual states—as they are regulated currently. The report also describes selected elements of RCRA Subtitles C and D, relevant to both EPA's proposal to regulate CCRs and the legislative proposals to create state programs to regulate CCRs.

This report looks primarily at how state programs to regulate CCRs may be developed and implemented by a state according to directives in the bills proposed in the 112 th Congress; it does not attempt to identify detailed requirements that may be applied by a state regulatory program. Accordingly, the report does not compare provisions in House and Senate bills proposed in the 112 th Congress or provide detailed analysis of provisions in those bills, except to the extent that individual provisions may be relevant to the regulatory program a state may develop and implement to regulate CCRs.

Federal criteria applicable to MSW landfills were promulgated in 1991. State efforts to adopt the federal criteria and implement them according to an EPA-approved permit program have been largely complete for more than 15 years. In comparing the proposed approach to regulate CCRs to the now-mature and already EPA-approved state programs to regulate MSW landfills, where relevant, this report provides information regarding those existing programs as they have been implemented (e.g., with regard to enforcement authorities that EPA could have exercised, but did not). Also, to simplify the discussion in this report, potential programs to regulate CCRs are discussed in the present tense (e.g., references to programs that "may be" or "could be" created and implemented by states refer to programs that may or could have been created pursuant to bills proposed in the 112 th Congress).

Since the most recent bill passed by the House adopted provisions in the Senate bill, unless otherwise noted, any reference to "the bills," "the proposed amendment to RCRA," or "Section 4011" refers to S. 3512/Title IV of H.R. 3409 , proposed in the 112 th Congress. Provisions included throughout the bills use the term "CCR permit program" to refer to state programs to regulate CCRs. The proposed amendments to RCRA would not create a "permit program," per se (see discussion in " Provisions Relevant to Potential State CCR Permit Programs "). Instead, selected provisions in the bills would form a framework that states could use to create programs to regulate CCR management (i.e., its use or disposal). To distinguish between "permit programs" as they have been previously created in RCRA and programs that could be created pursuant to the approach taken in the proposed bills, use of the phrase "CCR Permit Program" will mean a program that could be developed, adopted, or implemented by or for a state according to provisions in proposed Section 4011. Further, since the bills were designed to result in a state-based regulatory program, discussion of CCR Permit Programs focuses primarily on the programs that may be created by states, as opposed to a program to regulate CCRs that could potentially be implemented by EPA for a state.

Background

Using Permit Programs to Implement and Enforce Regulations

State solid waste management agencies commonly require owners and operators of certain waste disposal facilities to obtain a permit as part of that state's program to ensure that those facilities will comply with applicable waste management requirements. Such permits are legally enforceable documents detailing requirements applicable to the permittee (owners and operators of a specifically regulated solid waste disposal facility) and conditions the permittee must meet to demonstrate compliance with those requirements. Requirements applicable to solid waste disposal facilities are generally promulgated by states pursuant to state laws applicable to solid waste management. State regulations applicable to waste disposal facilities may vary depending on the issues specific to the type of waste received at that facility. For example, requirements applicable to a landfill that receives construction and demolition debris would be tailored to address waste management issues that may be different from requirements applicable to a landfill that accepts industrial solid waste.

A state permit "program" is the body of authorities, activities, and procedures that the permitting authority uses to implement and enforce regulations applicable to a solid waste disposal facility. Permit programs may include, among other elements, state laws that

specify the types of facilities required to obtain a permit; provide a state agency with authority to implement the regulatory program applicable to those facilities; and authorize the permitting authority to conduct compliance inspections and to take enforcement action necessary to remedy violations of program requirements.

Exactly how state solid waste management programs have been created varies from state to state. Since all states currently have waste management laws in place, a new permit program may be created by amending existing laws to specify the entity required to operate using a permit and authorize the appropriate state agency to promulgate regulations applicable to the permittee. Once the regulations are promulgated, the authorized state agency would generally be required to take measures necessary to ensure that the newly regulated waste disposal facility operates in compliance with applicable requirements. The permit would specify those compliance requirements (e.g., daily operating procedures, facility design requirements), as well as documentation that must be maintained to prove facility compliance (e.g., inspections records, groundwater monitoring data).

Permit Programs Created Under RCRA

Under Subtitle C of RCRA, EPA has primary authority to regulate hazardous wastes from the time it is generated until its ultimate disposal. Under RCRA Subtitle D, however, states have primary authority to regulate nonhazardous solid wastes. EPA's role in the regulation of solid waste under Subtitle D has largely been to promulgate criteria applicable to sanitary landfills as necessary to identify and eliminate open dumps, prohibited under RCRA. Amendments to RCRA in 1984 required EPA to revise the sanitary landfill criteria to apply to facilities that may receive hazardous household wastes. EPA subsequently defined these facilities in regulation as municipal solid waste, or MSW, landfills.

The creation of state programs to regulate MSW landfills involved two different but related elements—the promulgation of federal regulatory criteria applicable to owners and operators of MSW landfills (at 49 C.F.R. Part 258); and a requirement that EPA approve state permit programs implementing the federal criteria. In RCRA, directives from Congress to EPA to promulgate regulations have included a broad directive that those regulations must meet a minimum "standard of protection." The standard of protection has been "to protect human health and the environment." Permit programs created under RCRA, adopted and implemented by a state, have been expected to ensure that waste disposal facilities, operating in compliance with the federal regulatory criteria, will not pose a risk to human health.

When states began to implement the federal MSW landfill criteria, states had a certain degree of flexibility in adopting the regulations according to state-specific conditions. However, EPA approval of a state permit program to implement the MSW landfill criteria was dependent on whether EPA determined that the state's program was "adequate" to ensure MSW landfill compliance with regulations that met the baseline federal standard of protection. The ultimate objective of the regulatory program was the same nationwide (i.e., to achieve a baseline standard of protection), but details regarding how each state may achieve that objective varied from state to state.

Under the Constitution, Congress has no power to compel states to exercise their sovereign authority. Thus, pursuant to pollution control laws administered by EPA (or any other laws), Congress may not require states to adopt federal regulations or require states to implement certain requirements using a permit program. However, Congress has authorized EPA to promulgate and enforce certain regulations, while simultaneously providing for conditions under which a state may be authorized or approved to adopt and enforce those regulations. Given the options of allowing EPA to enforce a federal standard at facilities in the state or adopting and enforcing the regulations themselves, states generally choose the latter.

To provide states with an incentive to adopt the federal criteria and implement them using a permit program, Subtitle D included provisions that specified narrow conditions under which EPA could directly enforce the federal regulatory criteria. More specifically, EPA was authorized to enforce the federal standards from 18 months after the MSW landfill criteria were finalized to the point at which a state adopted a program approved by EPA as adequate to enforce the federal criteria. For this purpose, EPA was explicitly authorized to use its inspection and federal enforcement authorities under Subtitle C, Sections 3006 and 3007. (EPA and state authorities to enforce the open dumping prohibition, as well as other Subtitle D authorities, provisions, and resulting regulations established under Subtitle D, are discussed in " The Federal-State Program to Regulate MSW Landfills " and in Appendix A .)

EPA promulgated the MSW landfill criteria in October 1991, but did not promulgate requirements that delineated elements of an "adequate" permit program until October 1998 (at 40 C.F.R. Part 239). Over that period EPA worked with states to develop programs that could be deemed "adequate" pursuant to RCRA. EPA could have directly enforced the MSW landfill criteria at any point after April 1993 in any state that did not yet have an EPA-approved program in place. EPA never stepped in to directly enforce the federal criteria, however.

All states now have programs determined by EPA to be adequate to implement the MSW landfill criteria. As a result, EPA authority to directly enforce the criteria may not currently be invoked by the agency since that authority is limited to states found by EPA to have an inadequate program to implement the MSW program.

Under Subtitle C, EPA has primary authority to implement and enforce the federal requirements applicable to hazardous waste treatment, storage, and disposal facilities (TSDFs). In lieu of the federal program, states can be authorized by EPA to implement regulations applicable to those facilities, including permitting those facilities. Most states have requested and received such authorization. While under certain conditions, EPA could rescind state authority to implement a previously authorized state hazardous waste management program, EPA has never done so. However, as authorized under Subtitle C, EPA has taken enforcement actions against individual TSDFs in states authorized to implement federal Subtitle C requirements.

In contrast to such programs where EPA has primary oversight and enforcement authority, EPA's authority to directly enforce the MSW landfill criteria was framed narrowly. Now that all states have approved permit programs to implement the MSW landfill criteria, EPA has no effective authority to step in and enforce federal regulatory criteria at an individual MSW landfill. EPA's only available method to directly enforce the federal landfill criteria (arguably) would be to first rescind its earlier approval of a state Subtitle D program, which the agency has never done.

A New Approach to Creating a Permit Program

CCR Permit Programs established pursuant to bills proposed in the 112 th Congress would use as their framework the existing program created under Subtitle D to regulate MSW landfills. The available legislative history accompanying the bills indicates that CCR Permit Programs are intended to be similar to existing state programs to regulate MSW landfills.

In comparing these permit programs, several differences can be identified. A unique element of the proposed amendment to RCRA would be the creation of a permit program absent a directive to EPA to promulgate standards applicable to the entity potentially regulated pursuant to the program. That is, the proposed bills include no explicit directive (to states or to EPA) to promulgate regulatory criteria or standards that would apply directly to owners and operators of disposal facilities that receive CCRs. Instead, minimum program requirements specify that the CCR Permit Program "shall apply" selected MSW landfill criteria to owners and operators of structures. According to that precondition, it is arguably implied that states that choose to adopt and implement a permit program would promulgate regulations applicable to "CCR structures." Regulations that would ultimately apply to owners and operators of CCR structures would depend on each state's interpretation of the criteria listed among the proposed Permit Program Specifications.

Although the purpose of the proposed amendment to RCRA was the creation of state permit programs to implement regulations applicable to CCR disposal, apart from using MSW landfill criteria and selected other minimum requirements that must be applied by the CCR Permit Program, there were few requirements applicable to the permit program itself. (For comparison, requirements used by EPA to determine whether state programs were adequate to enforce the MSW landfill criteria, included under 40 C.F.R. Part 239, and explicitly required elements of a CCR Permit Program, are listed in Appendix B .)

Under this structure, statutory provisions listed in the proposed Permit Program Specifications would serve as both the framework states may use to create regulations applicable to the entity required to obtain a permit, and any required elements of the permit program itself. Compared to other programs created under federal pollution control laws, this is an approach—possibly complex in practice—to creating a regulatory program that does not clearly distinguish the purpose of federal regulations that meet a minimum standard of protection from permit programs used to implement and enforce those regulations.

Creation of a state program to regulate a particular type of waste, according to statutory provisions in federal law, without detailed federal regulations or guidance, would be a novel approach in RCRA. That a RCRA program has never been authorized or established by Congress using such an approach does not mean that this new approach would not meet a particular objective. The proposed bills, however, did not include a specific statement of the objective of a CCR Permit Program—with the exception of the broad statement in the bill's preamble that it is to "facilitate recovery and beneficial use and provide for the proper management and disposal" of CCRs.

This report compares state programs to regulate CCR disposal, created pursuant to program specifications included in the proposed amendment to RCRA, to existing federal-state programs to regulate MSW landfills. Since the proposed program to regulate CCRs was intended to be state-implemented, this report focuses primarily on elements of a regulatory program that may be created, adopted, and implemented by a state according to program specifications included in the proposed amendment. In comparing that proposed program to the existing program to regulate MSW landfills, there are various ways the programs could differ—with regard to implementation and enforcement. The report compares three program elements: (1) the flexibility provided to states in implementing the proposed Permit Program Specifications; (2) the standard of protection state regulations may provide; and (3) EPA's potential role in program implementation. This report explains existing federal-state programs to regulate MSW landfills, as well as risks EPA has identified as specific to the management of CCRs.

With regard to potential state regulations applicable to CCR structures, as noted above, a CCR Permit Program created pursuant to the proposed bills would be required to apply several minimum requirements and selected MSW landfill criteria to CCR structures. A state may promulgate regulations according to its interpretation of those statutory provisions and how those criteria cited should be applied to CCR structures in the state.

In federal pollution control laws, ambiguities are subject to EPA (and potentially court) interpretation. In contrast, any ambiguities or requirements not specified in the proposed CCR bills would be subject to state (and potentially court) interpretation. For example, criteria that must be applied to CCR structures using a CCR Permit Program include selected MSW landfill criteria—primarily the technical criteria such as operational and design criteria and groundwater monitoring requirements. However, program specifications do not include criteria comparable to "general" standards in the MSW landfill criteria. Those general standards define "applicability" (to whom the regulations apply), specify deadlines for facility compliance, and clarify requirements applicable to existing versus new facilities, among other elements. Since those standards are necessary to implement a program, states would likely include them in their own CCR Permit Program. State inclusion of those criteria would likely vary from state to state.

Decisions regarding the applicability of state regulations and compliance deadlines that existing facilities would be required to meet would be particularly relevant in determining the degree to which a state program may protect human health from risks specific to CCR disposal. In listing Permit Program Specifications, however, the bills did not explicitly require a CCR Permit Program to apply criteria to CCR structures that would be intended to achieve a specific standard of protection. If promulgated in accordance with existing state solid waste management laws, regulations applicable to CCR structures may meet standards of protection determined by each state, in accordance with that state's interpretation of potential risk to human health from CCR disposal. Such an approach to regulating a waste differs from existing state programs to regulate MSW landfills—programs adopted and implemented by each state to assure that each regulated MSW landfill will comply with regulations designed to meet a baseline level of protection.

EPA's oversight role in state implementation of a CCR Permit Program, pursuant to the approach in the proposed bills, would be substantially different from EPA's typical role in the oversight of permit programs created in federal pollution control law. Pursuant to the bills, in a state that chooses to implement a CCR Permit Program, EPA would be required to provide notice to a state regarding "deficiencies" in its program, with regard to certain program elements. For example, EPA would be required to notify and provide states with an opportunity to remedy deficiencies if, at any time, EPA determines the state is not implementing a CCR Permit Program that meets Permit Program Specifications delineated in the bills. Since those specifications do not include an explicit deadline for fully implementing the program (e.g., issuing permits and assuring facility compliance with applicable regulations), it cannot, as a practical matter, be determined in advance when EPA might evaluate state programs for deficiencies. However, once a state began implementing a CCR Permit Program, EPA could review that state's program at any time; could potentially find certain program elements deficient; and, within a narrow range of conditions specified in the bills, would then be required to implement a CCR Permit Program.

The bills' requirement that EPA identify certain state program elements that may be "deficient" involves the use of a term not found in the RCRA statute, and thus lacking a history of interpretation. As a result, it is difficult to anticipate how EPA would respond to such a mandate. In contrast, with regard to existing state programs to regulate MSW landfills, Congress required EPA to determine whether each state program was "adequate." EPA subsequently interpreted that mandate to mean that it was required to determine whether each state program was adequate to ensure that regulated facilities would operate in compliance with regulatory criteria that met a baseline level of protection. Unlike "deficient," the term "adequate" now has decades of agency interpretation providing a mature understanding of its precise meaning for evaluating state programs.

Some have argued that by requiring EPA to implement a CCR Permit Program for a state under specific conditions, the bills would provide EPA with authority to backstop state programs. Under current law, the term "backstop authority" is not formally defined in statute or regulation, and whether EPA is said to have backstop authority or not has no legal consequence. Nonetheless, the term has been widely used to refer to explicit authority provided to EPA to enforce standards at individual facilities in a state authorized by EPA to implement and enforce federal standards. Reference to EPA backstop authority has been made with regard to RCRA, the Clean Air Act, and the Clean Water Act. For example, under RCRA Subtitle C (42 U.S.C. §6928(a)), EPA is authorized to enforce standards of performance at individual facilities in a state even after the agency has authorized the state to implement and enforce such standards. Section 111(c) of the Clean Air Act (42 U.S.C. §7411(c)) provides EPA with comparable enforcement authority. In this sense of the term, the bills would not provide EPA with authority to backstop state programs to regulate CCR facilities.

Administrative and Legislative Proposals to Regulate CCRs

Despite its recent decline in demand, coal remains the dominant fuel for electricity generation in the United States, and is expected to continue to be well into the future. In 2011, electricity generating units in the United States burned more than 900 million tons of coal. CCRs are the inorganic material remaining after pulverized coal is burned at electric utilities and independent power producers. According to industry estimates, in 2011, as much as 130 million tons were generated, making CCRs one of the largest waste streams in the United States.

Disposal of CCRs on site at individual power plants may involve decades-long accumulation of waste—with hundreds of thousands, if not millions, of tons of dry ash (in a landfill) or wet ash slurry (in a surface impoundment) deposited at the site. On December 22, 2008, national attention was turned to risks associated with managing such large volumes of CCRs when a breach in a surface impoundment pond at the Tennessee Valley Authority's (TVA's) Kingston, TN, plant released 1.1 billion gallons of coal fly ash slurry, covering more than 300 acres, damaging or destroying homes and property. TVA estimates that cleanup will continue into at least 2014 and will cost $1.2 billion.

The incident at Kingston drew attention to the potential for a sudden, catastrophic release related to the structural failure of a surface impoundment. However, EPA has determined that a more common threat associated with CCR management is the leaching of contaminants likely present in the waste, primarily heavy metals, resulting in surface or groundwater contamination. The Kingston release also brought attention to the fact that the management of CCRs is essentially unregulated at the federal level.

EPA found that many state solid waste management programs adequately regulate CCR landfills, but identified gaps in those programs with respect to the regulation of CCR surface impoundments (particularly existing surface impoundments). EPA determined that national standards applicable to the management of CCRs destined for disposal are needed. In June 2010, EPA proposed two options to regulate CCRs pursuant to its current authorities under RCRA Subtitles C and D. In reaction to concern over the potential impacts of implementing either EPA regulatory option, the proposals to amend RCRA were introduced in the 112 th Congress.

EPA Proposals to Regulate the Disposal of CCRs

According to industry estimates, almost 80% of CCRs generated in 2011 was managed in a way that involved land application of the material. Such management practices included CCR disposal in landfills, surface impoundments, or mines (as minefill); and use as structural and embankment fill and as a soil amendment, among others. EPA has identified a number of conditions under which such land applications of CCRs may pose a threat to human health.

EPA also identified certain protective measures that may be implemented that would minimize or largely eliminate risks from CCR disposal. Many of the measures reduce risks that may be broadly applicable to the operation or design of other types of waste disposal facilities, such as MSW landfills. However, EPA identified other protective measures that would address risks specific to the management of CCRs. In particular, EPA found that surface impoundments pose a significant risk of contaminant leaching when CCRs are placed in an unlined unit, but that risk can be largely eliminated through the use of a composite liner system. Surface impoundments also pose a risk of structural failure. Given the potentially large volume of liquid waste impoundments may contain, structural failure could result in a catastrophic release of coal ash slurry. The potential for structural failure could be minimized by various means, including ensuring that the units meet certain design standards and are inspected regularly.

CCR disposal facilities are currently subject to limited federal regulation. Instead, they are regulated by individual states. In a continuing effort to determine whether CCRs should be subject to federal requirements established under RCRA, EPA has gathered data on CCR use and disposal for more than 30 years. In the past 10 years, EPA has found that states appear to be regulating CCR landfills to a greater extent than they had in the past. However, based on available data, EPA determined that a majority of states with CCR surface impoundments did not appear to require facility owner/operators to implement protective measures typically deemed necessary to protect human health from risks associated with contaminant migration. As a result of potential risks tied to CCR management, documented cases of damages attributed to improper disposal practices, and concern over potential gaps in state regulatory programs to regulate CCRs, particularly surface impoundments, EPA determined that national standards were needed to protect human health from risks specific to CCR management (i.e., its disposal and certain uses).

EPA options to regulate CCRs, however, are limited under its current authorities in Subtitles C and D. Pursuant to the Bevill exclusion, CCRs are explicitly excluded from the Subtitle C requirements, unless or until EPA determines that such requirements are warranted (EPA efforts with regard to directives included in the Bevill Amendment are summarized in Appendix C ). Accordingly, EPA has two options: (1) it could determine, reversing previous rulings, that hazardous waste regulation is warranted for CCRs, and promulgate regulations under Subtitle C, or (2) it could promulgate standards applicable to CCR landfills and surface impoundments under its Subtitle D authority (as necessary to allow states to enforce the prohibition on open dumping under RCRA Subtitle D).

On June 21, 2010, EPA proposed for public comment two options to regulate CCRs pursuant to those Subtitle C and D authorities. Under the Subtitle C option, EPA would reverse a previous regulatory determination to exempt CCRs from the hazardous waste requirements and, instead, list the material as a "special waste." Subtitle C requirements applicable to CCR management would include strict standards applicable to CCR land disposal. EPA assumed that power plants that dispose of CCRs on-site would continue to do so, but would upgrade their facilities as necessary to ensure compliance with land disposal standards applicable to owners and operators of TSDFs—standards that EPA tailored to address issues specific to CCRs. Pursuant to its existing authorities under Subtitle D, EPA's second regulatory option would be to promulgate national standards applicable to landfills and surface impoundments that receive CCRs. The proposed standards are structured similarly to regulatory requirements applicable to MSW landfills, supplemented to reflect requirements specific to the management of CCRs (discussed in " Proposed EPA Standards to Address Risks Specific to CCR Management ").

According to EPA, if implemented as proposed, each regulatory option would result in a similar level of protection. However, each option would result in regulatory programs with a substantially different scope and potential for enforcement. Adoption and enforcement of the Subtitle C "cradle to grave" regulations would involve stricter waste management standards implemented at a higher cost to both industry and state waste management agencies. Implementing the Subtitle D option would establish standards applicable only to owners and operators of CCR landfills and surface impoundments (i.e., it would create a regulatory program applicable only to the CCR "grave," not every stage of CCR management). In contrast to its broad authority to enforce Subtitle C requirements, EPA could promulgate the Subtitle D standards, but would have limited authority to enforce them. If finalized, EPA could encourage states to adopt and enforce the Subtitle D standards, but would have no authority to enforce the standards directly.

Selected elements of EPA's proposed Subtitle C and D requirements, applicable specifically to waste disposal units that may receive CCRs, are summarized in Table 1 .

EPA's proposal drew comments from industry groups, environmental and citizen groups, state agency representatives, individual citizens, and some Members of Congress. Although public comments varied, opposition to the Subtitle C option was largely due to concerns that it would be costly to implement to both states and industry; be too restrictive; stigmatize the material by labeling it "hazardous," adversely affecting its potential for reuse; and restrict uses of the material that involve land-based applications of CCRs, due to the land disposal restrictions applicable to hazardous wastes.

Opposition to the Subtitle D option stemmed from various concerns, many of which were centered on EPA's lack of authority to directly enforce the standards—authority that would likely be necessary to encourage states to adopt and enforce them. Given the argument by many states that the material is being managed sufficiently under current state regulatory programs, environmental and citizen groups have expressed doubts over the degree to which states would adopt new standards, resulting in the promulgation but not the implementation of any new requirements to ensure protection of human health.

This report provides information regarding EPA's proposals to regulate CCRs only insofar as such detail is helpful to clarify risks associated with CCR management. The report does not provide a comprehensive discussion of EPA's authority to regulate CCRs, why EPA determined that national standards were necessary, details of EPA's proposals, or opposition to them. That information is provided separately in CRS Report R41341, EPA's Proposal to Regulate Coal Combustion Waste Disposal: Issues for Congress , by [author name scrubbed].

Overview of Proposals to Amend RCRA

As noted, the approach to creating the permit program in the bills considered in the 112 th Congress differs from what is typical in federal pollution control laws administered by EPA. That it would be created using a new approach does not mean that it cannot achieve its intended purpose. Its purpose is broadly stated as "to facilitate recovery and beneficial use, and provide for the proper management and disposal" of CCRs. In accordance with that purpose, it would appear that CCR Permit Programs would be intended to result in the "proper management" of CCRs, but not restrict beneficial uses of CCRs. The bills would establish a framework that states could use to create programs to regulate CCR disposal, allow states flexibility to develop and implement the program, and specify some level of EPA oversight after states are implementing the program. Such a program would be comparable to existing state programs to implement and enforce standards necessary to ensure facility compliance with RCRA's open dumping prohibition.

Based on the construction of the proposed amendment (e.g., listing specific MSW landfill criteria that CCR Permit Programs must apply) and statements available in the legislative history, it may be assumed that state adoption and implementation of a CCR Permit Program, created pursuant to the proposed bills, are intended to result in state programs to regulate CCR disposal similarly to existing state programs to regulate MSW landfills. The creation of the latter involved a somewhat complex evolution of RCRA. In particular, federal-state programs to regulate MSW landfills were created pursuant to the 1984 amendments to RCRA Subtitle D that revised existing requirements applicable to RCRA's prohibition on open dumping.

Under Section 4011 in the proposed bills, states would create CCR Permit Programs using statutory criteria drawn from regulatory criteria previously created pursuant to RCRA. However, proposed Section 4011 includes no provisions that would explicitly require either EPA or states to promulgate regulations directly applicable to owners and operators of disposal facilities that receive CCRs (regulations the permit program would be expected to implement). Instead, the Permit Program Specifications would cite selected existing federal regulatory criteria applicable to MSW landfills (in 40 C.F.R. Part 258) and five requirements drawn from EPA's June 2010 Subtitle D proposal that a CCR Permit Program would be required to apply. According to that precondition, it is arguably implied that states choosing to adopt and implement a CCR Permit Program would promulgate regulations applicable to "CCR structures." Regulations promulgated by a state that would ultimately apply to owners and operators of CCR structures would depend on each state's interpretation of the criteria listed among the proposed Permit Program Specifications (though EPA and possibly court review would impose a check on unreasonable state interpretations).

As proposed, apart from the potential for EPA to issue guidance or technical assistance, state CCR Permit Programs would likely be created with no involvement from EPA—with regard to either required elements of the program itself or the regulations that would be implemented by the permit program. In contrast to other RCRA permit programs, EPA would have a substantially different role in program implementation and enforcement.

By way of comparison, existing state programs to regulate landfills that receive MSW involved the following actions by EPA and states with regard to program creation, implementation, and enforcement:

EPA revised existing regulatory criteria applicable to sanitary landfills to apply to owners and operators of MSW landfills. In the regulations promulgated by EPA, they are defined as minimum national criteria to ensure protection of human health and the environment. Owner/operators of MSW landfills were required to comply with the criteria within two years. Within 18 months after EPA promulgated the MSW landfill criteria, states were required to adopt and implement a permit program to implement the criteria or risk EPA enforcement of the criteria at facilities in the state. States either adopted the federal criteria exactly or used them as a model to create their own requirements applicable to MSW landfills. EPA determined whether state programs were adequate to ensure facility compliance with the federal criteria. That is, state regulations applicable to MSW landfill owner/operators and their programs to enforce those standards were required to be adequate to ensure that owner/operator compliance with the state requirements would not pose a threat to human health from risks common to waste disposal (e.g., contamination of groundwater above levels determined to be safe for humans). From the deadline for a state to adopt and implement a permit program (18 months after EPA promulgated the MSW landfill criteria) until that state had an approved ("adequate") permit program in place, EPA was authorized to directly enforce the federal regulatory criteria at facilities in the state. By providing EPA with authority to enforce federal criteria, states were encouraged to adopt, implement, and enforce the federal criteria. Once a program was approved by EPA, states had primary authority to implement and enforce their own program to regulate MSW landfills. EPA had limited authority to intervene.

A CCR Permit Program would draw from selected elements of existing state programs to regulate MSW landfills, but with different roles for states and EPA and a different timetable for program implementation (the required elements of the CCR Permit Program are discussed in " Proposed CCR Legislation Amending RCRA ," below). Not later than six months after bill enactment, each state would be required to notify EPA whether it will adopt and implement a CCR Permit Program. Not later than three years after bill enactment, participating states would be required to submit to EPA certification that their CCR Permit Programs meet the Permit Program Specifications delineated in proposed Section 4011(c). Based on both explicit and implicit directives in the proposed amendment to RCRA, EPA and state roles and authorities to create, implement, and enforce requirements applicable to CCR structures appear to be as follows:

Participating states would interpret provisions in Section 4011, particularly the Permit Program Specifications, and develop regulations based on their interpretation. There is no explicit directive in the bills that the requirements applied via the permit program be those necessary to protect human health (i.e., meet a federal standard of protection). Requirements adopted by the state would likely meet a state-determined standard of protection. States would determine when owner/operators would be required to comply with the requirements implemented via the permit program and when they would issue permits. Participating states would certify that they have a program in place within three years of enactment of proposed Section 4011, including a legal certification that the state has "fully effective statutes or regulations necessary to implement a coal combustion residuals permit program that meets the [statutory] specifications." States would presumably promulgate regulations applicable to CCR structures. Deadlines for compliance and details regarding program applicability would not be known until states promulgate regulations that would be implemented by the permit program. EPA would be required to notify states if they did not meet the deadlines to notify the agency whether they intended to implement a program, or to submit to EPA their program certification. At any time after a state is implementing a CCR Permit Program (e.g., is issuing permits and enforcing permit conditions), EPA would be required to identify and notify a state of any deficiencies in meeting the Permit Program Specifications. EPA would not be explicitly required to identify as a program "deficiency" program elements outside the required Permit Program Specifications (e.g., compliance deadlines or details regarding program applicability that may be included in state regulations or in state procedures to implement those regulations), and arguably could not. If a state fails to remedy program deficiencies identified by EPA within the time frame negotiated between the state and EPA, the agency would be required to implement a permit program for a state. The time frame for that could vary depending on the compliance deadlines established by the state. If EPA did implement a CCR Permit Program in a state, it is not clear whether the agency would be obligated to implement and enforce state requirements or EPA would promulgate federal criteria necessary to implement the CCR Permit Program, in accordance with its broad authority to promulgate regulations necessary to carry out its functions under RCRA.

Under this construct, EPA and state roles would be substantially different in developing, implementing, and enforcing requirements applicable to CCR structures compared to their respective roles and authorities to implement and enforce requirements applicable to MSW landfills. Also, CCR Permit Programs created pursuant to proposed Section 4011 would be implemented in accordance with program definitions (e.g., "deficiencies"), procedures (e.g., EPA review of state programs to identify program deficiencies at any time after states are implementing the program, rather than determining program adequacy to ensure compliance with a federal standard), and standards of protection (e.g., a presumption that states would develop programs according to a state-determined standard) that differ from other permit programs implemented by states under RCRA.

Congress may create a permit program for any constitutionally authorized purpose. By drawing primarily from the existing federal regulations applicable to MSW landfills, state adoption of a CCR Permit Program appears to be intended to result in state implementation of programs to regulate CCRs comparable to existing state programs to regulate MSW landfills. Given that potential purpose, a direct comparison of key elements of each program is helpful.

Existing Standards Relevant to a CCR Permit Program

A CCR Permit Program, created pursuant to the proposed bills, would draw from certain existing federal regulations and requirements, and proposed federal standards. In particular, required elements of a CCR Permit Program would draw from existing federal regulatory criteria applicable to owners and operators of MSW landfills (at 40 C.F.R. Part 258); selected EPA requirements for state permit programs implementing the MSW landfill criteria (at 40 C.F.R. Part 229); and selected standards applicable to CCR landfills and surface impoundments included in EPA's June 2010 proposal to regulate CCRs, under its Subtitle D option. To determine the degree to which a CCR Permit Program created under Section 4011 may resemble state programs to regulate MSW landfills, it is helpful to outline how those state programs to regulate MSW landfills were created and implemented and to recognize the purpose of selected details of those regulations.

The Federal-State Program to Regulate MSW Landfills

One of RCRA's key goals is to prevent contamination associated with waste disposal, if at all practicable, rather than simply remedy it after discovery. Consistent with that goal, Congress has required EPA to promulgate regulations applicable, among other things, to facilities that may receive hazardous household wastes (subsequently defined in regulations as MSW landfills) under Subtitle D. Provisions in RCRA that required EPA to promulgate those regulations included certain minimum requirements that EPA was to include in the final regulations, as well as a broad standard of protection the regulations were required to achieve.

The Hazardous and Solid Waste Amendments of 1984 (HSWA; P.L. 98-616) amended RCRA Subtitle D to address an issue almost identical to the one currently applicable to CCRs—that is, the need to regulate a waste excluded from Subtitle C requirements. In developing the amendments, Congress recognized that an explicit exemption from the Subtitle C requirements did not mean that disposal of those wastes did not pose potential risks to human health and the environment. For example, household waste is exempt from Subtitle C requirements. However, in its amendments to RCRA, Congress recognized that disposal facilities that accept such waste may need to comply with standards that were more detailed than the broad criteria applicable to sanitary landfills. Rather than subject household waste to the full gamut of "cradle to grave" Subtitle C regulations, Congress took an approach that could be implemented under Subtitle D. That approach resulted in more detailed regulations than those applicable to sanitary landfills, and included a stronger enforcement mechanism to ensure consistent state conformance with the national standards.

HSWA amended Subtitle D to add Section 4010, in which Congress directed EPA to study the extent to which the Subtitle D guidelines and criteria applicable to solid waste management and disposal facilities, including landfills and surface impoundments, were adequate to protect human health and the environment from groundwater contamination. Within three years, EPA was required to report the results of its study to Congress, as well as any recommendations the agency made based on the study findings. Further, EPA was required to revise the sanitary landfill criteria to apply to facilities that may receive hazardous household wastes. Congress explicitly required EPA to revise the existing sanitary landfill criteria to be

those necessary to protect human health and the environment and may take into account the practicable capability of such facilities. At a minimum such revisions for facilities potentially receiving such wastes should require ground water monitoring as necessary to detect contamination, establish criteria for the acceptable location of new or existing facilities, and provide for corrective action as appropriate.

Once EPA promulgated the revised criteria, each state was required to "adopt and implement a permit program or other system of prior approval and conditions, to assure that each solid waste management facility within such state which may receive hazardous household waste ... will comply with the [the newly revised] criteria."

EPA was required to determine whether each state developed an adequate permit program. As a result of those directives, EPA promulgated the "Criteria for Municipal Solid Waste Landfills," in 49 C.F.R. Part 258, and "Requirements for State Permit Program Determination of Adequacy," in 40 C.F.R. Part 239. The landfill criteria and required elements of an "adequate" permit program were developed and implemented using data and information gathered over a more than 20-year period. Over that time, working cooperatively with states, EPA has identified risks to human health from waste management, regulatory criteria that effectively address those risks, and regulatory programs adequate to ensure facility compliance with those regulatory criteria.

The MSW Landfill Criteria

In cooperation with individual states, among others, EPA established minimum national criteria applicable to MSW landfills. The criteria are those necessary to protect human health and the environment from risks associated with the disposal of MSW in a landfill. Generally, risks to human health from waste management activities pertain to the potential for hazardous contaminants (e.g., toxic constituents) in that waste to be released from the site of deposition and to migrate off-site.

To identify risks specific to the management of MSW in a landfill, during the public rulemaking process, EPA gathered data regarding the types of waste common to those landfills, the contaminants likely present in MSW, and protective measures to control human exposure to those contaminants, among other factors. In 1991, the agency promulgated the following requirements applicable to MSW landfills:

General standards—delineated the purpose of the regulations; detailed compliance deadlines and specific regulatory criteria applicable to existing facilities (generally within two years of the rules being finalized); and detailed definitions of terms used in the regulations. Included in those general standards, it is specified that the criteria apply directly to owners and operators of facilities that meet the regulatory definition of an MSW landfill. Location restrictions—applicable primarily to new units and lateral expansions of existing units. Existing units located in certain restricted locations were required to close. Operating criteria—daily requirements applicable to both new and existing units. Design criteria—applicable primarily to new units. Groundwater monitoring and corrective action requirements—applicable to all units, but also intended to ensure that existing units that did not meet necessary design criteria would identify and respond to contaminant migration within a certain time frame. Closure/post-closure care—applicable to any unit upon closure. Financial assurance criteria—applicable to any unit, to ensure the owner/operator is able to clean up contamination, if necessary.

As finalized by EPA, the MSW landfill criteria are intended to apply to facilities that dispose of largely "dry" waste. That is, they do not address issues specific to liquid waste accumulation in surface impoundment ponds. New MSW landfills were required to ensure compliance with the standards before they began operation. Owner/operators of existing facilities that did not comply with applicable criteria by deadlines specified by EPA would be in violation of RCRA's prohibition on open dumping.

As required by Congress, the MSW landfill criteria establish minimum federal standards that take into account the practical capability of owners and operators and ensure that MSW landfills are designed and managed in a manner that is protective of human health. Each standard in the MSW landfill criteria is designed to be implemented by the owner or operator, with or without oversight or participation by a regulatory agency (e.g., an approved state permit program). That is, owner/operators of regulated disposal units were required to comply with applicable criteria by the applicable deadlines, regardless of whether a state had adopted the federal criteria or had a program in place to implement and enforce those criteria.

States were not precluded from adopting regulations more stringent than the federal criteria. However, in requiring the criteria to meet a specific standard of protection, facility compliance with the minimum national standard was intended to achieve a consistent level of protection from threats specific to improper management of MSW.

State Programs to Implement the MSW Landfill Criteria

Congress intended states to be the primary entities to implement and enforce federal standards applicable to waste management activities subject to the open dumping prohibition established under Subtitle D. However, amendments to Subtitle D in HSWA created a role for EPA in state adoption and implementation of the MSW landfill criteria. HSWA added a paragraph applicable to "Control of Hazardous Disposal" in Section 4005. That paragraph includes provisions that directed states to adopt a permit program to implement the MSW landfill criteria, and required EPA to assess each state program. In particular, the 1984 amendments to Section 4005 required

each state, within 18 months of EPA promulgating the MSW landfill criteria, to adopt and implement a permit program or "other system or prior approval and conditions" to assure that each solid waste management facility within the state that may receive MSW will comply with the MSW landfill criteria (or risk EPA enforcement of the criteria, as discussed below); and EPA to determine whether each state "developed an adequate program" (i.e., a program adequate to assure facility compliance with the MSW landfill criteria); that determination could be made in conjunction with EPA's decisions to approve, disapprove, or partially approve state solid waste management plans.

EPA subsequently promulgated "Requirements for State Permit Program Determination of Adequacy," in 40 C.F.R. Part 239, also referred to as the State Implementation Rule (SIR). The SIR includes the following four subparts:

General —specifies the purpose and scope of the program and defines key program terms. State Program Application —lists required components of program application, including detailed information that must be provided by a state in the narrative description of its program and required components of the state's legal certification of program requirements. Requirements for Adequate Permit Programs —details minimum permitting requirements, compliance monitoring authority, and enforcement authority a state would need to demonstrate to EPA before the program could be deemed adequate by EPA; and requires state programs to provide for citizen action in the state civil enforcement process. Adequacy Determination Procedures —includes criteria EPA would use to make its adequacy determination or to partially approve state programs, procedures states must follow if they needed to modify their programs, and criteria and procedures EPA may use to withdraw its determination of adequacy.

(Individual criteria included in the SIR and provisions in Section 4011 comparable to required elements of the SIR are listed in Table B-1 .) The resulting state permit programs were the body of laws, authorities, and procedures that comprise the state's system for regulating the location, design, operation, groundwater monitoring, closure, post-closure care, corrective action, and financial assurance of regulated MSW landfills. A state program that met the requirements in the SIR would be expected to be adequate to assure facility compliance with the MSW landfill criteria.

EPA did not intend the SIR to be a rigid set of criteria. States could regulate MSW landfills based on the federal MSW landfill criteria exactly, or could allow owners and operators to use site-specific alternative approaches to meet the federal performance standards (i.e., to protect human health and the environment). In providing a certain degree of flexibility, the SIR allowed states to adopt regulations that may not have been identical to the MSW landfill criteria. All state programs approved by EPA, however, were determined to be adequate to assure facility compliance with standards protective of human health and the environment.

EPA's determination of state program adequacy was also relevant to the agency's potential to directly enforce the MSW landfill criteria. Specifically, HSWA's new Section 4005(c) added the following provisions that specify the narrow set of conditions under which EPA would be authorized to directly enforce the open dumping prohibition at facilities subject to the MSW landfill criteria:

In any state that EPA determined did not adopt a program adequate to assure facility compliance with the MSW landfill criteria, EPA could use authorities available in Sections 3007 and 3008 in Subtitle C ("Inspection" and "Federal Enforcement" provisions in 42 U.S.C. §§6927 and 6928) to directly enforce the open dumping prohibition at MSW landfills in that state. Since the inspection and federal enforcement authorities cited apply explicitly to the management of hazardous waste, an additional provision specifies that, when drawing upon the federal enforcement authorities (§6928), the term "requirements of this subchapter" in Subtitle C would be deemed to include criteria "promulgated by the Administrator under Sections 6907(a)(3) and 6944(a)" of RCRA (i.e., the MSW landfill criteria), and the term "hazardous wastes" in the inspection provisions (§6927) would be deemed to include "solid waste at facilities that may handle hazardous household wastes" (i.e., MSW landfills).

Absent the above provisions, EPA has no authority to directly enforce the federal MSW landfill criteria or, likely, provide states with incentive to adopt and enforce the federal criteria. EPA has since approved all state programs, deeming them adequate to enforce the federal regulatory criteria. Once state programs to implement the MSW landfill criteria were approved by EPA, states have primary authority to implement and enforce their own MSW landfill criteria applicable to owners and operators of MSW landfills. States "implement" those regulations by issuing permits to owners and operators of regulated landfills that specify compliance obligations applicable to that facility.

When the SIR was finalized in 1998, EPA intended states to continue their lead role in implementing the federal MSW landfill criteria. At that point, seven years after the MSW landfill criteria had been promulgated, 40 states and one U.S. territory had already obtained full EPA approval of their permit programs. Legally, EPA could have directly enforced the federal MSW landfill criteria at any MSW landfill in a state without an EPA-approved program. However, EPA never did so. Currently, given that all states have EPA-approved permit programs, EPA has no authority to directly enforce the MSW landfill criteria (i.e., to enforce the Subtitle D open dumping prohibition at facilities subject to the MSW landfill criteria).

Proposed EPA Standards to Address Risks Specific to CCR Management

As discussed above, current state programs to regulate MSW landfills began with the promulgation of federal regulatory criteria identified by EPA as those necessary to address risks specific to the management of MSW in landfills. States then adopted those federal criteria and currently implement them using an EPA-approved permit program. MSW landfill owner/operator compliance with a permit is, hence, intended to achieve a baseline level of protection.

If state programs to regulate CCRs were intended to be similar to state programs to regulate MSW landfills, regulations or other requirements established by individual states would be designed to protect human health from risks specific to CCR disposal and use. The degree to which state regulations implemented by a CCR Permit Program may protect human health from risks specific to CCR management would then depend on

risks specific to the management of CCRs and protective measures (in the form of regulations applicable to CCR management) that could address those risks.

EPA's June 2010 proposals to regulate CCRs reflect EPA's effort to determine those risks and protective measure to address them. As discussed, EPA proposed two alternative regulations based on its existing statutory authorities in RCRA under Subtitles C and D. EPA's determination to regulate CCRs under either subtitle stems from directives included in the Solid Waste Disposal Act Amendments of 1980 (P.L. 96-482). That amendment to RCRA includes provisions commonly referred to as the Bevill Amendment or Bevill Exclusion, which are found in several RCRA subtitles, but primarily under Subtitle C. (As noted, information regarding the Bevill amendment provisions and EPA's response to directives in those amendments is provided in Appendix C .)

Under the Bevill provisions, "fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other byproduct materials generated primarily from the combustion of coal or other fossil fuels" (i.e., CCRs) were explicitly excluded from the Subtitle C requirements, pending a determination by EPA of whether such regulation was warranted. EPA's June 2010 proposal was part of the agency's ongoing effort to gather data necessary to determining whether regulating CCRs under Subtitle C is warranted. To make that determination, included among the Bevill amendment provisions, EPA was directed to prepare a detailed and comprehensive study on the adverse effects on human health and the environment, if any, of the disposal and use of CCRs. Among the study criteria, EPA was required to identify

the source and volumes of CCRs generated annually, methods of disposal and use, the potential danger, if any, to human health and the environment from those methods, and documented cases in which danger to human health or the environment from surface runoff or leachate has been proved.

In determining whether CCRs should be subject to Subtitle C requirements, EPA also used federal regulatory criteria applicable to the identification and listing of hazardous waste. Of relevance to CCRs would be whether the waste could be identified and specifically listed by EPA as hazardous waste based on its toxicity. When making that determination, EPA must consider a range of factors, some of which are similar to the study data included in the Bevill amendment. Additional factors include data regarding the nature and concentration of toxic constituents present in the waste; plausible types of improper management to which the waste could be subjected; the potential for toxic constituents to degrade and migrate from the point of deposition under plausible management conditions; and regulation by other government agencies or regulatory programs intended to address health or environmental hazards posed by a waste or toxic constituent in that waste.

Using those various criteria, EPA determined that the material is generated in large volumes annually (e.g., approximately 130 million tons in 2011); that it contains more than 40 toxic constituents, including antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, and selenium; and that those constituents can degrade and migrate from the point of deposition under certain conditions.

EPA identified common methods of disposal and use, potentially regulated under RCRA, that resulted in documented cases of damages that could cause human health concerns. Those management methods include disposal in landfills, accumulation in surface impoundment ponds, and use in land applications equivalent to landfill disposal such as the placement of large volumes of CCRs on land for use as structural or embankment fill (e.g., to contour the land at a construction site or raise a roadbed). Using EPA's quantifiable groundwater risk assessment data and information from documented CCR damage cases, EPA identified various pathways in which humans may be exposed to toxic constituents in CCRs at levels high enough to cause health concerns. The pathways under which exposure would most likely occur include the following:

contaminant leaching and migration off-site when CCRs are deposited in an unlined unit (e.g., a landfill, surface impoundment, sand pit, quarry, construction site); direct, uncontrolled discharge or release of liquid waste to surface water, as in the structural failure of a surface impoundment (e.g., the Kingston release) or as a result of run-on/runoff across the deposition site during rain/flood events; and fugitive dust emissions, when fine particulates in dried ash become airborne, as at landfills or large-scale fill operations.

Of those pathways, risk to human health was highest from contaminant leaching and migration to surface and groundwater. EPA found that risk was largely eliminated through the use of a composite liner.

Leading up to its 2010 proposal, EPA attempted to determine the extent to which

owners and operators of individual facilities may have implemented necessary protective measures, and state regulatory programs may require protective measures to control risks EPA identified as associated with CCR disposal and use.

Based on the limited data available to EPA, the agency determined that owners and operators of CCR landfills and surface impoundments are likely to install liners and groundwater monitoring systems in new CCR disposal units, but that the majority of disposal units were likely to be older and lacked liners and groundwater monitoring. Using data gathered in 2004, EPA determined that 31% of the CCR landfills and 62% of the CCR surface impoundments lacked liners, and 10% of the CCR landfills and 58% of the CCR surface impoundments lacked groundwater monitoring.

EPA found that the majority of states appeared to regulate CCR landfills adequately, but that there appeared to be gaps in state regulatory oversight of surface impoundments. The latter may be regulated under a state's dam safety program (intended to control risks related to the unit's structural integrity), but not necessarily a state's solid waste management program (intended to control risks specific to contaminant spread related to the land-based accumulation of liquid waste). For example, a 2009 survey of states found that among survey respondents, more than 60% of states required neither liners nor groundwater monitoring for surface impoundments (67% and 61%, respectively). EPA noted that the survey results are "particularly significant as groundwater monitoring for these kinds of units is a minimum for any credible regulatory regime." The majority of states responding to the survey also did not have siting controls, inspection, or structural integrity requirements for surface impoundments—requirements necessary to minimize the potential of a structural failure.

EPA further noted, however, that it lacks details regarding the manner and degree to which states are regulating the disposal and use of CCRs. To address potential gaps (i.e., to establish regulations applicable to CCR disposal and use in states that are not already regulating CCRs in a manner that protects human health), EPA's June 2010 proposal was intended to create a national standard to regulate CCRs destined for disposal. In its Subtitle D option, EPA would add to 40 C.F.R. Part 257, "Standards for the Receipt of Coal Combustion Residuals in Landfills and Surface Impoundments." Those standards would apply to solid waste disposal units, defined as follows:

CCR landfill —disposal facility or part of a facility where CCRs are placed in or on land and that is not a land treatment facility, a surface impoundment, an underground injection well, a salt dome formation, a salt bed formation, an underground mine, a cave, or a corrective action management unit. For purposes of this part, landfills also include piles, sand and gravel pits, quarries, and/or large-scale fill operations. Sites that are excavated so that more coal ash can be used as fill are also considered CCR landfills. CCR surface impoundment —facility or part of a facility that is a natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of CCRs containing free liquids, and which is not an injection well. Examples of CCR surface impoundments are holding, storage, settling, and aeration pits, ponds, and lagoons. CCR surface impoundments are used to receive CCRs that have been sluiced (flushed or mixed with water to facilitate movement), or wastes from wet air pollution control devices, often in addition to other solid wastes.

Those definitions were proposed by EPA based on findings in its groundwater risk assessment and its documentation of CCR damage cases related to CCR management in such units (see definitions of selected relevant terms applicable to waste disposal facilities under the "General Standards" listed in Table A-2 ).

To identify minimum national standards for the safe disposal of CCRs, EPA's June 2010 Subtitle D regulatory option drew primarily from the existing criteria applicable to MSW landfills under 40 C.F.R. Part 258. According to EPA, the MSW landfill criteria provide a comprehensive framework for all aspects of the disposal of wastes such as CCRs in land-based units. Further, based on its experience with the requirements, EPA stated its belief that the MSW landfill criteria represent a reasonable balance between "ensuring the necessary protection from risks of CCR disposal and the practical realities of facilities' ability to implement the criteria."

EPA tailored and supplemented the MSW landfill criteria to address threats to human health specific to CCR management. For example, the existing MSW landfill criteria were developed to be implemented in the context of a permitting program, where an overseeing authority evaluates the requirements and can adjust them, as appropriate, to account for site-specific conditions. Because there is no corresponding guaranteed permit mechanism under its Subtitle D regulatory option, EPA integrated selected regulatory criteria from 40 C.F.R. Part 265. Those criteria were for "interim status" hazardous waste TSDFs—requirements designed to apply to owners and operators of such facilities during the interim period between promulgation of the final hazardous waste regulations and the implementation of permit programs used to ensure facility compliance with those regulations. Also, EPA asserted that selected requirements applicable to TSDFs were particularly relevant in developing the proposed standards for surface impoundments, since the MSW landfill criteria did not address risks from contaminant spread associated with the accumulation of liquid waste, since criteria applicable to the management of liquid wastes are not included under 40 C.F.R. Part 258.

The MSW landfill criteria also do not address structural integrity issues associated with the accumulation of coal ash slurry (risks from a catastrophic release of liquid waste). To address such risks, selected proposed standards for CCR surface impoundments were modeled on the Mine Safety and Health Administration (MSHA) regulations in 30 C.F.R. Part 77. In particular, EPA drew from the MSHA mine safety standards for "water, sediment, or slurry impoundments and impounding structures" at 30 C.F.R. §77.216. EPA's decision to draw from the MSHA standards was based on its belief that records compiled by MSHA for its rulemaking (for 30 C.F.R. Part 77) and the agency's 40 years of experience in implementing those requirements provided evidence that similar requirements, applied to CCR surface impoundments, will prevent a catastrophic release of CCRs from surface impoundments, as occurred at TVA's facility in Kingston, TN, and will generally meet RCRA's mandate to ensure the protection of human health and the environment.

Taking these various issues into account, EPA's Subtitle D regulatory option reflects the framework of MSW landfill criteria (e.g., general requirements, location restrictions, operating and design criteria), but includes selected criteria drawn from MSHA standards and standards applicable to hazardous waste TSDFs, necessary to protect human health from risks unique to CCR management. The proposed standards include criteria EPA deemed necessary to control contaminant leaching and migration, particularly from the disposal of noncontainerized liquid waste, a large-scale release due to the structural failure of a surface impoundment pond, or the release of coal ash dust to the air. The following standards are among those intended to address concerns associated specifically with CCR disposal:

New disposal units (landfills and surface impoundments) would be required to be placed above the natural water table, and could not be located in wetlands, within 200 feet of a fault zone, or in a seismic impact zone. New or existing disposal units could not be located in an unstable area (e.g., a location susceptible to natural or human-induced events or forces capable of impairing the integrity of the unit). Existing facilities in an unstable area would be required to close within five years. New disposal units would be required to be constructed with a composite liner. Within five years, existing surface impoundments would be required to have solids removed and be retrofitted with a composite liner. All units would be required to comply with the groundwater monitoring requirements within one year of the effective date of a final rule; new CCR units must have groundwater monitoring systems installed before CCRs could be disposed of in the units. All units would be required to control fugitive dust emissions. All units would be required to have an independent registered professional engineer certify that the design of the run-on/runoff control system meets requirements specified in the regulations, and the owner/ operator would be required to notify the state that the design has been placed in the operating record and on the owner's or operator's publicly accessible Internet site. Owners and operators of all existing surface impoundments would be required to maintain certain information about the units (e.g., a description of the physical and engineering properties of the foundation materials on which the CCR surface impoundment is constructed), and a certification by an independent registered professional engineer that the design of the CCR surface impoundment is in accordance with current, prudent engineering practices for the maximum volume of CCR slurry and CCR wastewater that can be impounded therein and for the passage of runoff resulting from the "design storm" that exceeds the capacity of the CCR surface impoundment.

Differences between the MSW landfill criteria and EPA's proposed standards for CCR landfills and surface impoundments can be seen by comparing the two sets of standards, listed in Table A-2 .

Proposed CCR Legislation Amending RCRA

As noted, the House and Senate bills considered in the 112 th Congress would add to Subtitle D of RCRA a new Section 4011, "Management and Disposal of Coal Combustion Residuals." The bills would encourage states to create permit programs according to statutory standards included in the amendment.

Section 4011 would provide a framework for states to create permit programs to regulate CCR management. Generally, the term "permit program" refers to the body of requirements that a permitting authority (generally a state agency) uses to implement and enforce regulations. The proposed Section 4011 would not create a permit program, per se. Instead, it would provide the framework that states may be expected to use to create a permit program (i.e., regulations applicable to CCR disposal units and the program to implement and enforce those regulations). Section 4011 would provide the program specifications a state would use to create its permit program, allowing states a certain degree of flexibility to determine details regarding how the program would be implemented and to whom it would apply.

Provisions of the proposed bills discussed below are those likely to have the most impact on the development and implementation of individual state CCR Permit Programs, and EPA's potential role in oversight and implementation of those programs.

Provisions Relevant to Potential State CCR Permit Programs

To create their own programs to regulate CCRs, states would draw primarily from provisions in the proposed Section 4011 that specify State Actions, Permit Program Specifications, and Definitions in Sections 4011(b), (c), and (k), respectively. Pursuant to the State Actions provisions, states would be expected to notify EPA within six months of the bill's enactment whether they intend to adopt and implement a CCR Permit Program under Section 4011. EPA would be required to implement the program in states that choose not to do so. A CCR Permit Program could be implemented pursuant to Section 4011 only by a state that maintains an approved MSW landfill permit program or is authorized to implement the federal hazardous waste management program under RCRA Subtitle C. Using those preconditions, all states could implement a CCR Permit Program under Section 4011. It is assumed that all states in which CCRs are managed (i.e., primarily states with coal-fired power plants) would opt to implement their own program.

Within 36 months of bill enactment, states (those that notify EPA they will implement their own program) must submit to EPA a certification explaining how their program meets the Permit Program Specifications in proposed Section 4011(c). The certification would require a narrative description of the state's program explaining how the state will assure its CCR Permit Program meets program specifications. Information required to be included in the certification appears to be drawn from, but would be less detailed than, information EPA required states to provide in their application for approval of state permit programs to implement the MSW landfill criteria. (See CCR Permit Program certification requirements compared to 40 C.F.R. Part 239, Subpart B—State Program Application requirements listed in Table B-1 .)

The proposed amendment would not explicitly require the agency implementing the program (presumably states) to promulgate regulations applicable to waste disposal facilities that may receive CCRs. However, program preconditions arguably imply that states would promulgate such regulations. Specifically, the Permit Program Specifications in Section 4011(c) include two paragraphs titled "Minimum Requirements" and "Revised Criteria." The first provision listed among the Minimum Requirements specifies

IN GENERAL—A coal combustion residuals permit program shall apply the revised criteria described in paragraph (2) to owners or operators of structures, including surface impoundments, that receive coal combustion residuals. [Emphasis added.]

"[P]aragraph (2)" states the "Revised Criteria" proposed in Section 4011(c)(2). Under that paragraph, specific subparts of the MSW landfill criteria and selected individual criteria are cited. For example, the paragraph entitled Revised Criteria begins "The revised criteria described in this paragraph are ... ," followed by provisions such as

"the revised criteria for design, groundwater monitoring, corrective action, closure, and post-closure, for structures, including—for new structures and lateral expansions of existing structures ... the revised criteria regarding design requirements described in" 40 C.F.R. §258.40, except that the leachate collection system requirements in 40 C.F.R. §258.40(a)(2) do not apply to structures that are surface impoundments; "for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for air quality described in" 40 C.F.R. §258.24; "for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for financial assurance described in" 40 C.F.R. Part 258, Subpart G.

In addition to the "In General" provision (cited above), the Minimum Requirements include five provisions drawn from EPA's June 2010 proposed Subtitle D standards for CCR landfills and surface impoundments. Those proposed provisions would apply to the following:

4011(c)(1)(B) Structural I ntegrity —related to certain risks associated with a catastrophic release from surface impoundments. EPA intended those risks to be addressed, at least in part, in its "Design criteria for existing CCR surface impoundments and lateral expansions" (proposed 40 C.F.R. §257.71, included among the Design Criteria). Compared to the bills' structural integrity provisions, EPA's proposed criteria included more detailed requirements comparable to the MSHA standards (discussed above in " Proposed EPA Standards to Address Risks Specific to CCR Management " and detailed in Table A-3 in Appendix A ). 4011(c)(1)(C) Location —similar to EPA's proposed 40 C.F.R. §257.60, "Placement above the natural water table," included among the Location Restrictions criteria, intended to address risks from contaminant spread by locating units close to groundwater (see EPA's proposed criteria listed in Table A-2 ). 4011(c)(1)(D) Wind D ispersal —similar to EPA's proposed 40 C.F.R. §257.80, "Air Criteria," included among proposed Operating Criteria, intended to address issues associated with fugitive emissions of coal ash dust (see Table A-2 ). 4011(c)(1)( F ) (ii) State Notification and Groundwater Monitoring: Groundwater Monitoring —within one year of submitting its program certification to EPA, a state would require the owner or operator of each regulated "structure" to comply with the groundwater monitoring requirements listed under the Revised Criteria (at proposed Section 4011(c)(2)(A)(ii)). 4011(c)(1)(J) Requirements for Surface Impoundments That Do Not Meet Certain C riteria— related to certain risks associated with contaminant migration from unlined surface impoundments. EPA's proposed criteria at Section 257.71 would require facility owners and operators to implement standards necessary to prevent contaminant spread; the proposed provision that would be applied via the permit program would prescribe actions a state would be required to take after it was determined that contaminants had migrated from the deposition site.

In the narrative description of its program, required to be provided to EPA under the State Actions provisions, states would be required to describe their program, including "a legal certification that the state has, at the time of certification, fully effective statutes or regulations necessary to implement a coal combustion residuals permit program that meets the [Permit Program Specifications in proposed Section 4011(c)]." Coupled with the general directive included under the Minimum Requirements (discussed above), it is implied, but not explicitly required, that each state implementing a CCR Permit Program pursuant to proposed Section 4011 would promulgate regulations applicable to CCR structures modeled after the explicitly cited criteria applicable to MSW landfills (presumably modified to apply to CCR structures) and the five criteria (listed above) included under the Minimum Requirements.

Provisions cited under the Revised Criteria provisions include subparts of or specific criteria in the MSW landfill criteria pertaining to location restrictions, operating criteria, design criteria, groundwater monitoring and corrective action requirements, closure/post-closure care, and financial assurance. They do not, however, cite or separately include provisions comparable to "general" standards included in the MSW landfill criteria. Those general standards specify the intended scope, purpose, and applicability of the regulations, as well as compliance deadlines that existing facilities were required to meet. For example, the MSW landfill criteria specify criteria that will or will not apply to disposal units of a certain size, units that accept waste within a specific time frame, or that stopped receiving waste by a certain date. The general standards also define terms necessary to determine program applicability and to clarify required elements of specific criteria. (See 40 C.F.R. Part 258, Subpart A—General criteria listed in Table A-2 ). Absent the inclusion of requirements comparable to general criteria, states would have discretion to define those criteria, implicitly within reason.

The Definitions in proposed Section 4011(k) would likely affect the applicability of state regulations implemented by a CCR Permit Program. The key definition is that of a "structure." In the Permit Program Specifications, all Revised Criteria and the five relevant Minimum Requirements would apply to structures that may receive CCRs. A structure would be defined as "a landfill, surface impoundment, or other land-based unit" that may receive CCRs, with the exception of land-based units that may receive "only de minimis quantities" of CCRs "if the presence of [CCRs] is incidental to the material managed in the unit." The proposed definitions do not include details regarding what may constitute a "CCR landfill" or a "CCR surface impoundment" comparable to other federal regulations applicable to regulated waste disposal facilities (see definitions of relevant terms in Table A-2 ). Hence, whether a particular entity may be subject to CCR regulations would depend on a state's exercise of broad latitude in defining "CCR landfill" or "CCR surface impoundment."

The proposed bills would define a "coal combustion residuals permit program" as "all of the authorities, activities, and procedures that comprise the system of prior approval and conditions implemented by or for a state to regulate the management and disposal of CCR " [emphasis added]. State regulations implemented by that program would not be explicitly required to meet a federal protection standard or other minimum standard of protection, as now required of regulations under RCRA. CCR regulations promulgated under a state's own authorities would then apply to CCR structures based on meeting any standard of protection deemed appropriate by that state.

The program Minimum Requirements also include five provisions that appear to be drawn, in part, from selected "Requirements for Adequate Permit Programs" included in 40 C.F.R. Part 239, Subpart C. Those five provisions, as well as state program certification requirements specified in the State Actions provisions, comparable to "State Program Application" requirements in 40 C.F.R. Part 239, Subpart B, are listed in Table B-1 .

EPA's Potential Role in Program Oversight and Implementation

Provisions that would specify EPA roles in program oversight and potential enforcement are included in proposed Section 4011(d), "Written Notice and Opportunity to Remedy," and proposed Section 4011(e), "Implementation by Administrator." These provisions specify elements of a state's program that EPA would be required to review, as well as conditions under which EPA would be required to intervene and implement and enforce a CCR Permit Program for a state (the latter would draw from authorities in existing sections of RCRA). It is difficult to determine in advance how EPA may interpret directives regarding its role or how the proposed authorities may affect state adoption and implementation of a permit program.

There would be a number of differences between EPA's role in state implementation of a CCR Permit Program and EPA's role in approving state programs to implement the MSW landfill criteria. These differences pertain primarily to the program elements EPA would be required to review, the time frame in which EPA may be expected to provide review of substantive elements of the program, and the conditions under which EPA would have enforcement authority.

Proposed Section 4011(d) would require EPA to identify and notify a state of "deficiencies" in specific elements of its program. Program elements that could be identified by EPA as having some deficiency would include the state's obligation to submit the required notification, submit the required program certification, and maintain an approved permit program to implement the MSW landfill criteria. Those directives do not involve a substantive review of the program, only a determination that the state submitted required information at the appropriate time or continues to maintain permit programs previously approved under RCRA. The potential for EPA to review a substantive element of a CCR Permit Program is limited to a directive to EPA to notify a state and provide an opportunity to remedy deficiencies if at any time the state is not implementing a program that

meets the Permit Program Specifications in Section 4011(c) or is consistent with the narrative description of its program, included in the narrative description provided in the program certification (required in the State Actions provisions in 4011(b)), and maintains fully effective statutes or regulations necessary to implement a CCR Permit Program.

States would be obligated to provide information necessary for EPA to make its deficiency determination within 90 days of EPA making the request. If EPA identifies a program deficiency, the agency would be directed to collaborate with the state to establish a reasonable deadline to address it. What constitutes a "reasonable deadline" is not explicitly defined, except that it could not be "earlier than 180 days" after the date on which the state receives the notice.

The requirement that EPA identify a deficiency at any time a state is not implementing a program — as opposed to when a state is still developing its program—suggests that such a review may be anticipated at some point in the future, when EPA could determine if a program was being implemented as described in the state's program certification. Such a point in the future arguably might be after the state begins to issue permits or the state begins to enforce permit conditions.

With regard to its now-fulfilled obligations under RCRA Section 4005 (see " State Programs to Implement the MSW Landfill Criteria ," above), EPA was explicitly required to determine whether each state developed a program "adequate" to assure facility compliance with the MSW landfill criteria. In the proposed amendment to RCRA, however, EPA would be directed to notify a state of a "deficiency" if a state is not implementing a CCR program that meets statutory specifications (in proposed Section 4011(c)). How EPA would interpret the directives in proposed Section 4011(d) using this new terminology (i.e., identify "deficiencies" instead of determine program "adequacy") may not be known until EPA interprets the statutory directives and, possibly, promulgates requirements detailing criteria EPA would use to make its determination.

In the bills, EPA could identify as a deficiency program elements described in the Permit Program Specifications or included in the narrative description of a state's program. Apart from those program elements, EPA would not be explicitly required to assess other program elements (e.g., how a state defines a landfill that receives CCRs). EPA would also not be explicitly required to determine whether state regulations applicable to CCR disposal may achieve a baseline standard of protection. EPA seemingly could not conduct enforcement actions against owner/operators of CCR structures in states implementing a CCR Permit Program.

Proposed Section 4011(e) prescribes conditions under which EPA would be required to implement a CCR program for a state. For example, EPA would be required to implement a CCR Permit Program for a state if the agency identified some deficiency in that state's permit program, and the state does not remedy the deficiency within the "reasonable timeframe" negotiated between the state and EPA. Similarly, if a state governor notifies EPA of the state's intent not to implement a CCR Permit Program or the state informs EPA that it will no longer implement its program, EPA would be required to implement the CCR Permit Program for a state.

This mandate raises two possibilities for EPA. Assuming that EPA has identified a deficiency, one interpretation of the bills would require EPA to implement the state's program to regulate CCRs, except for the deficient component—the agency's only independent authority being to provide an adequate substitute for the element it found deficient. The second interpretation, which would apply both in cases of identified deficiencies and of state decisions not to implement a program at all, is that EPA could promulgate its own program applicable to CCR disposal units. If it did so, the agency's regulations would be required to consist of the Permit Program Specifications proposed at Section 4011(c), as EPA interprets those specifications. In addition, the Administrator could rely on her authority under Section 2002 of RCRA to "prescribe, in consultation with Federal, State, and regional authorities, such regulations as are necessary to carry out [her] functions under this Act."

If EPA were to implement a CCR Permit Program for a state, Section 4011(e) cites existing provisions in Subtitle D as the authorities the agency would use to implement a CCR Permit Program.

A "CCR Permit Program" Compared to State Programs to Regulate MSW Landfills

The CCR bills in the 112 th Congress did not explicitly state that state-implemented CCR Permit Programs would be intended to emulate (in their broad objectives or in specific program details) federal-state programs to regulate MSW landfills. Statements in the legislative history, however, asserted that the bills intended to facilitate the recovery and beneficial use of CCRs by creating a "state-based permit program that utilizes the framework and requirements of the existing municipal solid waste landfill permit program as an enforceable minimum federal standard for the regulation of coal ash."

The degree to which states would create, implement, and enforce programs to regulate CCRs that are similar to programs to implement and enforce regulations applicable to MSW landfills depends on various factors that cannot be determined in advance. However, certain similarities and differences can be identified. The similarities between the existing program to regulate MSW landfills and the proposed CCR program lie primarily in the requirement that a CCR Permit Program would apply selected MSW landfill criteria to owners and operators of CCR structures.

Proposed CCR Permit Program elements likely to have the most impact on state program implementation that are different from existing programs to regulate MSW landfills pertain to the following (each of which is discussed in more detail below):

The potential flexibility in state program development and implementation —in the absence of provisions comparable to general regulatory standards, applicable either to regulations that would be implemented by the permit program or to the permit program itself, it would appear that each state could determine key elements related to program implementation (e.g., program applicability) and facility compliance, at least to the degree that such state determinations did not undercut a viable state program. A state-determined standard of protection —permit programs were created previously under RCRA when Congress wanted to ensure that certain solid waste disposal facilities would be subject to regulatory criteria that achieved a minimum national standard of protection and that a permit program would be implemented to assure facility compliance with that standard. The proposed statutory criteria included among the Permit Program Specifications are not comparable, in scope or in detail, to those identified by EPA as those necessary to protect human health from risks specific to CCR disposal and use (in the June 2010 EPA proposal). Absent directives that regulations promulgated and applied to CCR structures achieve a federal standard of protection, states might promulgate and implement regulations according to a state-established standard of protection, which might vary from state to state. EPA's role in program creation and implementation —EPA would have no formal role in program development and a limited role in program implementation. Within the limited conditions and authorities specified, it is difficult to determine whether the potential for EPA to implement a CCR Permit Program for a state would serve as an incentive to states to implement a program according to the requirements specified in Section 4011.

Flexibility

Section 4011 includes no explicit directive to states or EPA to promulgate regulations applicable to CCR structures. Instead, the Permit Program Specifications in Section 4011(c) list regulatory criteria that would be applied by a CCR Permit Program. As a result, Section 4011 includes a number of provisions susceptible to varying interpretations. One such provision is the definition of "structures" that may receive CCRs. All Minimum Requirements and Revised Criteria that must be applied by a CCR Permit Program would be required to apply to "structures." It would appear that the applicability of any regulations a state would promulgate and implement using its permit program would depend on that state's definition of a structure. In defining the term as a "landfill, surface impoundment, or other land-based unit" that may receive CCRs, without further definition, the bills would afford states broad latitude in construing these terms.

By contrast, existing RCRA regulations established by EPA explicitly define terms necessary to determine the applicability of those regulations. Those definitions have included sufficient detail to allow a potentially regulated entity (the owner/operator of a particular waste disposal facility) to determine whether or what regulations may apply to their waste management activities. The definitions also indicate the type of waste disposal facilities that have been found to pose a risk to human health if not properly managed (see definitions of terms applicable to waste disposal facilities included under the "General" standards in the MSW landfill criteria and EPA's June 2010 Subtitle D proposal listed in Table A-2 ).

With regard to CCR management, EPA's proposed definition of "CCR landfill" and "CCR surface impoundment," and, hence, the applicability of its proposed Subtitle D standards, reflects the agency's assessment of risks to human health from the disposal of CCRs. Details in EPA's proposed definitions of potentially regulated units reflect risk assessment data and documented cases of threats to human health from CCR disposal in surface impoundments and landfills, as well as certain uses comparable to landfill disposal (e.g., placement on land for large-scale fill). EPA's June 2010 proposal reflected its assessment of this body of research and analysis. Some stakeholders, however, debate the appropriateness of EPA's definitions, with some arguing that EPA's definitions are too inclusive and others believing they are not inclusive enough.

While there may be debate among stakeholders regarding the appropriateness of EPA's definitions, the bills leave that issue unresolved, opening the door to a diversity of state solutions. Until states promulgate regulations that include a more detailed definition of a CCR "structure," program applicability will not be determined with specificity. Thus, the regulated universe of "owners and operators" will not be known until a state defines a structure.

Section 4011 also omits other basic program elements typically specified in regulations. For example, it would not provide explicit deadlines for many program requirements, though EPA or the courts might read reasonable deadlines into the section. Certain deadlines are specified in the Permit Program Specifications. For example, not later than one year after the state certifies it has a program in place, that state shall require the owner or operator of each regulated structure to comply with applicable groundwater monitoring requirements promulgated by the state. As noted above, however, the applicability of those groundwater monitoring requirements would depend on the state's definition of a structure.

After states promulgate regulations implementing the Section 4011 requirements and permit programs are in place, among other program elements, it could then be determined

whether states would uniformly apply permit program conditions to all CCR landfills and surface impoundments within the state's jurisdiction; when owners and operators of existing CCR structures would be required to obtain a permit and operate in accordance with permit conditions; or whether CCRs used as fill material (a use EPA identified as similar to landfill disposal) would be subject to permitting.

The absence of certain requirements among the Permit Program Specifications (e.g., compliance deadlines) does not mean that states would not establish those criteria in their own regulations applicable to CCR structures. However, given the flexibility that states would have to define several key program elements, it cannot be predicted whether state programs to regulate CCRs, developed and implemented pursuant to provisions in Section 4011, would result in the management of CCRs comparable to the existing programs to regulate MSW landfills.

The majority of the Permit Program Specifications are criteria that would be applied by the permit program (i.e., provisions related to regulations that may ultimately be promulgated by the state and implemented via the permit program). There are few provisions in Section 4011 that specify required elements of the permit program itself (see requirements in 40 C.F.R. Part 239 compared to provisions in Section 4011 apparently drawn from those requirements, listed in Table B-1 ).

The absence of certain provisions in Section 4011 comparable to requirements relevant to existing state programs to regulate MSW landfills (primarily criteria comparable to the general standards in 40 C.F.R. Part 258 and detailed requirements comparable to those in 40 C.F.R. Part 239) may be based on a belief among some that states that maintain approved permit programs under Subtitles C or D of RCRA have adequately demonstrated that they are capable of administering a permit program to regulate CCRs. EPA has not questioned whether states are capable of implementing programs to regulate CCR disposal. Instead, the agency has noted that some states do not currently have effective regulatory or permitting programs to manage CCR disposal and use (particularly with regard to the management of CCRs in surface impoundments and uses comparable to landfilling). It is not necessarily a question of a state's ability. Instead, it may be a difference in interpretation between states and EPA regarding standards necessary to ensure protection of human health. Also, whether a state has an approved MSW permit program intended to ensure compliance with the MSW landfill regulations may not be a reliable predictor of whether a state would amend its current laws or adapt its procedures to apply those requirements to the management and disposal of CCRs in structures in that state.

Standard of Protection

All existing regulations applicable to waste disposal facilities, promulgated under RCRA Subtitles C or D, were established pursuant to explicit directives from Congress that those regulations meet a particular standard of protection. When those regulations are required to be implemented using a permit program, at a minimum, the regulations were required to be those necessary to "protect human health and the environment." That generally is understood to mean regulatory criteria necessary to ensure that toxic constituents likely present in a waste, disposed of under certain conditions, will not degrade, migrate off-site, and expose humans to those constituents above levels determined to be toxic to humans (e.g., above maximum contaminant levels established under the Safe Drinking Water Act).

There is no provision in Section 4011 that explicitly requires regulations promulgated by the state and implemented by a CCR Permit Program to achieve a certain level of protection. Within the framework of RCRA, that raises the question of what changes may occur to existing state waste management programs in a state that believes it is currently regulating CCR disposal in a way that is adequate to protect human health.

Although there is no statement to this effect in the proposed bills themselves, it appears that the achievement of a level of protection comparable to that in RCRA was considered when applying the "revised criteria" to the proposed permit program under Section 4011. In particular, the House report for H.R. 2273 includes the following statement:

The Committee believes that it is not necessary for EPA to promulgate new regulations. EPA acknowledged in [its June 2010 Subtitle D] Proposed Rule that the "part 258 criteria represent a reasonable balance between ensuring the protection of human health and the environment from the risks of these wastes and the practical realities of facilities' ability to implement the criteria." The Committee expects that permit programs using the minimum Federal baseline established by this legislation will meet the standard of protecting human health and the environment.

The House report further notes that the "revised criteria" that would serve as the baseline for the proposed CCR Permit Programs consist of criteria that EPA promulgated pursuant to Section 4010(c) of RCRA that require EPA to promulgate criteria necessary to protect human health and the environment. That is, by using the MSW landfill criteria as the basis of the program, it may be expected that state implementation of a CCR Permit Program that applies those criteria would protect human health and the environment. There is no legislative history for the Senate-proposed bill. However, since it also uses the MSW landfill criteria as its framework, there may have been a similar expectation that the use of those criteria would create a permit program that would meet a similar standard of protection.

The MSW landfill criteria provide minimum national regulatory standards to ensure protection of human health, but from risks associated with the management of MSW landfills, not risks associated with CCR structures, particularly not risks specific to CCR accumulation in surface impoundment ponds or uses that are largely similar to disposal in a landfill (its use as structural fill in large-scale construction projects). Further, in its June 2010 proposal, EPA did not use the MSW landfill criteria, alone, to provide a similar level of protection for the disposal of CCRs in landfills and surface impoundments. EPA used the MSW landfill criteria as the framework for its June 2010 Subtitle D proposal. However, to meet the necessary standard of protection required under RCRA, and to address risks identified by EPA in the statutory directive included in the Bevill amendment provisions ( Appendix C ), EPA's proposal included detailed criteria necessary to address risks associated with the disposal of dry CCRs in a landfill (defined to include large-scale fill operations) and liquid slurry in surface impoundments (a category of disposal unit explicitly excluded from the definition of MSW landfills).

As noted in the " Provisions Relevant to Potential State CCR Permit Programs " section, in addition to selected MSW landfill criteria, the proposed Permit Program Specifications include five provisions that appear to be drawn from EPA's proposed standards applicable to CCR disposal units. Those provisions are not, however, comparable in scope or in detail to the regulatory criteria proposed by EPA under its June 2010 Subtitle D regulatory option. Still, since selected provisions in the bills are drawn from EPA's June 2010 proposal, it appears that a CCR Permit Program would be intended to address certain risks associated with CCR disposal. However, by drawing from selected standards proposed by EPA, but not others, and allowing states flexibility to define what constitutes a CCR landfill or surface impoundment, it is unclear whether individual state CCR Permit Programs would address the same range of risks identified by EPA.

The absence of any explicit directive that the CCR Permit Program or state regulations applied by that program meet a standard of protection does not mean that a state would not require its program to achieve a state-specific standard of protection. However, when permit programs have been required to be implemented under RCRA in the past, it has been with the specific intent of assuring that waste disposal facilities will operate in compliance with baseline federal regulatory criteria that meet an explicit standard of protection. Those existing federal criteria were designed to address gaps in the protection of human health that may occur as a result of gaps in state regulatory programs. In its June 2010 proposal, EPA's primary objective was to address gaps in state programs to regulate CCRs by establishing national standards that would achieve a minimum level of protection from risks specific to CCR disposal and use.

Generally, it would be during the rulemaking process, under the Administrative Procedure Act, that EPA would provide its analysis of risk assessment data, studies, reports, and various other data used to determine regulatory criteria that it (EPA, in conjunction with state agencies and other interested stakeholders) determined are those necessary to achieve a certain national standard of protection. In its proposal to regulate CCRs, various stakeholders have disagreed with EPA's assessment of what criteria should be applied to CCRs. The administrative process, however, provides some transparency regarding how EPA arrived at its determination. It also provides a forum through which stakeholders can provide their views and supplement data EPA may draw from to form a final decision. The analytical process and technical basis for determining how and why certain requirements were selected or excluded (primarily those found in 4011(c)) in the proposed CCR Permit Program are not clear.

Questions regarding the potential standard of protection intended to be achieved by state programs to regulate CCRs are also raised when the purpose of existing state programs to regulate MSW landfills is compared to the purpose of the proposed CCR Permit Program. Under Subtitle D, states were required to adopt and implement a permit program to ensure that each solid waste management facility in the state that may receive MSW would comply with the MSW landfill criteria. EPA defined those state programs as the "authorities, activities, and procedures that comprise the state's system of prior approval and conditions for regulating the location, design, operation, ground-water monitoring, closure, post-closure care, corrective action, and financial assurance of Subtitle D regulated facilities" (i.e., a program to implement the MSW landfill criteria). Given the standard of protection the MSW landfill criteria were required to achieve, state programs implementing the MSW landfill criteria would ensure facility compliance requirements designed to protect human health.

In contrast to that existing RCRA program, the preamble in the proposed bills broadly states that the amendment to RCRA is to "facilitate recovery and beneficial use, and provide for the proper management and disposal" of CCRs. Further, a "coal combustion residuals permit program" would be defined as "all authorities, activities, and procedures that comprise the system of prior approval and conditions implemented by a state to regulate the management and disposal " of CCRs [emphasis added]. In contrast to the existing programs to regulate MSW landfills, that proposed program would not be explicitly required to ensure facility compliance with regulations that meet a baseline standard of protection. Although it could be assumed that any state permit program would be used to implement certain regulatory requirements, it could not be assumed that the purpose of those requirements would be to achieve a particular standard of protection. Further, until states begin to adopt and implement CCR Permit Programs, it cannot be determined whether states would interpret provisions in Section 4011 to mean that their programs would be required to ensure facility compliance with requirements that meet a particular standard of protection.

EPA's Role

In the bills, EPA's role in program development and oversight would be substantially different from the agency's role in other permit programs established under RCRA. EPA would be given a more limited role in development of the regulatory program for CCR facilities, compared to the existing program to regulate MSW landfills. Compared to that program, the most significant differences in EPA's role are with regard to promulgating regulations applicable to the entity required to obtain a permit, assessing state permit programs, and the potential to directly enforce some set of regulatory criteria. Table 2 summarizes EPA's statutory role in each program, and highlights selected areas in which the difference between each program may affect CCR Permit Program implementation.

As summarized in Table 2 , EPA played a significant role in developing regulations applying to MSW landfill facilities, which have been implemented by states using a permit program. Once those state permit programs were approved by EPA, however, the agency had little role in state implementation, including enforcement, of the MSW landfill criteria. In contrast, a CCR Permit Program would be implemented using regulations promulgated by states, based on their interpretation of the Permit Program Specifications in the bills. The bills would provide no formal role for EPA in this regulatory development process. Once a state is implementing a permit program, EPA would have a role in states that fail to remedy program deficiencies, but the extent of EPA's role would depend on how EPA interprets its obligation to implement a permit program.

EPA's authority with regard to state program elements found to be "deficient" involves the use of a term not found in the RCRA statute, and thus lacking a history of interpretation. It is difficult to anticipate how EPA would interpret this authority, but there appear to be at least three options:

In the first and most limited option, EPA would implement only the deficient components of a state's program. Thus, EPA might implement part of the program while the state implements other parts of the program, as occurs in other elements of RCRA. Alternatively, EPA could implement the state's entire program, with the deficient components corrected. In a second interpretation (which might apply not only in cases of identified deficiencies but also where a state decides not to implement a program at all), EPA would promulgate its own program applicable to CCR structures. In this case, the agency's regulations would be required to consist of the Permit Program Specifications in Section 4011(c), as EPA interprets those specifications. A third interpretation envisions a more proactive role for EPA. In this interpretation, rather than wait to make decisions regarding deficiencies after the fact, the Administrator might issue guidance before the states implement their programs, informing the states in advance how to avoid having CCR Permit Program elements deemed deficient. Anticipating criticism that such guidance would constitute regulations in disguise, the Administrator might actually issue regulations, using her authority under Section 2002 of the existing RCRA statute, which allows her to "prescribe, in consultation with Federal, State, and regional authorities, such regulations as are necessary to carry out [her] functions under this Act."

In this third scenario, the need to interpret statutory provisions, coupled with the authorities already given to EPA in RCRA, might inadvertently create something like the agency's traditional regulatory role, rather than limiting it. In this regard, it may be worth noting that EPA has already—in its June 2010 proposal—done much of the work of writing such regulations or guidance: it has identified the CCR management practices that it wants to address, the standards it would set, and the time frames that it considers adequate for compliance. That work might be adapted to guide the process of identifying deficiencies.

Conclusion

Pursuant to RCRA Subtitle D, EPA has been required to promulgate regulations specific to certain types of waste disposal facilities. EPA and state agency roles in implementing and enforcing those regulations were largely established in RCRA's comprehensive amendments to the Solid Waste Disposal Act in 1976 and the Hazardous and Solid Waste Amendments of 1984. One set of regulations promulgated by EPA, the criteria applicable to MSW landfills, is in 40 C.F.R. Part 258. EPA's involvement in the creation of state programs to adopt, implement, and enforce those criteria evolved during the 1990s, but largely ended in the early 2000s, when state programs deemed adequate by EPA were in place in all U.S. states and territories. These now-mature state MSW programs reflect a variety of state approaches, but share common elements. For example, those programs have similarities with regard to the following:

Regulations —the federal MSW landfill criteria at 40 C.F.R. Part 258 are those EPA determined (as part of a public rulemaking process) are necessary to protect human health and the environment from risks specific to the management of MSW in landfills; baseline federal criteria were applied to owners and operators of regulated units within two years of EPA promulgating the regulations, regardless of when states adopted the regulations or created a permit program to implement them; many states used the federal regulatory criteria as a model for their own regulations, in most cases modifying existing programs to meet the federal criteria; individual state regulations applicable to MSW landfills could vary, as long as facility compliance with those regulations would meet the baseline federal level of protection. Permit programs —state permit programs were intended to ensure facility compliance with regulations applicable to owners and operators of MSW landfills; state programs were approved by EPA based on its determination that they were adequate to ensure facility compliance (according to requirements specified in 40 C.F.R. Part 239); all states are currently implementing permit programs approved by EPA. Enforcement —EPA could directly enforce the federal MSW landfill criteria in any state that EPA determined did not have an adequate permit program; EPA has never exercised its authority to directly enforce the federal criteria, but concern over the possibility that EPA could do so likely served as an incentive to states to adopt and implement permit programs that would be deemed adequate by EPA; EPA could potentially withdraw its approval of a state program, if EPA were to receive information indicating that the program is not being implemented as originally described by a state, but EPA has not done so.

The bills considered in the 112 th Congress would use a fundamentally different framework to create state programs to regulate CCRs. The bills did not explicitly require EPA to set uniform national standards of protection or promulgate regulations applicable to CCR structures. In taking this unique approach, several questions are raised that cannot be answered until states begin to develop and implement their programs and EPA interprets its role as it would be described in the proposed bills:

How would states interpret minimum program requirements and the MSW landfill criteria listed in the bills to promulgate regulations applicable to owners and operators of CCR structures? Given the flexibility the bills would have provided states to define what constitutes a CCR "landfill," "surface impoundment," or "other land-based unit," to what specific "CCR structures" would state permit program conditions be applied? Would EPA issue guidance to clarify what it would consider a CCR "structure"? If so, how much would EPA's guidance influence states? To what extent would the bills result in states developing or revising requirements for CCR management that would go beyond current waste management requirements? When would owners and operators of CCR structures be subject to any new regulations? If a state were to promulgate new regulations, how would that state determine the level of protection that CCR structures would be required to meet? How would EPA interpret its obligation to identify program deficiencies? Would EPA identify a program as having a deficiency if EPA determined it was not adequate to ensure facility compliance with requirements necessary to protect human health? For example, would EPA identify as a deficiency a state's definition of a "CCR landfill" that EPA determined was insufficient to ensure that uses of CCRs that constitute disposal on land are regulated? When and how often would EPA identify program deficiencies? Would EPA review a program for adequacy immediately after a state certified that it had a program in place, or would it wait until years after? Would EPA make such determinations on an ongoing basis? Would EPA establish requirements (similar to 40 C.F.R. Part 239) or issue guidance to allow states to determine what EPA may identify as a program deficiency? Under a range of circumstances specified in the proposed bills, EPA would be required to implement a CCR Permit Program for a state. Given that directive, would EPA promulgate regulations applicable to CCR structures that it would then implement under those circumstances? If so, how much influence would EPA regulations have on a state's development of its own regulations? If EPA implemented a permit program for a state, what regulations would EPA implement—its own or a state's? If EPA uses its own rules, how would the agency interpret permit program requirements that would otherwise be left to states to interpret (e.g., what constitutes a CCR structure or deadlines that existing CCR structures would be required to meet)? How would EPA use its existing general authorities under RCRA and the latitude provided in the bills to interpret Section 4011 in a way that it views as necessary to ensure the viability of the state programs?

Some in Congress who have expressed concern that EPA has "overreached" its existing legislative mandates have supported legislation that would limit EPA's role in regulating CCR disposal while encouraging states to create programs to regulate the material according to conditions established in federal law (i.e., by creating a CCR Permit Program pursuant to proposed Section 4011). Supporters of this approach have suggested, given the unique conditions in each state, that such programs to regulate CCRs could be at least as effective as federal requirements that may be established by EPA under either regulatory option proposed in June 2010. Others counter that, given the potential gaps in existing state programs to regulate CCRs, a program that would continue to allow states flexibility to regulate CCR disposal as they deem necessary would not necessarily fill those gaps—potentially allowing waste management practices identified by EPA as those posing a risk to human health to continue.

In light of EPA's June 2010 proposal and uncertainty regarding the agency's future regulatory plans, it is likely that CCR legislation will be considered in the 113 th Congress. Congressional consideration of such legislation will occur in the context of ongoing concern about the impacts of current CCR facilities, changing economics for coal-fired electricity, and a range of perspectives about the appropriate role of states and EPA.

Appendix A. Selected Authorities and Directives in RCRA Relevant to CCR Management

Any waste deemed nonhazardous or explicitly excluded from the Subtitle C requirements (such as CCRs) is subject to RCRA Subtitle D. In contrast to the directive and authorities provided to EPA to promulgate and enforce standards applicable to hazardous waste, Subtitle D established state and local governments as the primary regulating and implementing entities for the management of solid waste (i.e., household garbage and nonhazardous industrial solid waste).

Under Subtitle D, states have the primary authority to implement and enforce standards applicable to the management of nonhazardous solid waste. EPA's role in regulating the management of nonhazardous solid wastes is, with certain exceptions, limited to promulgating criteria applicable to RCRA's prohibition on open dumping. That prohibition is enforceable by states or by citizens, pursuant to RCRA's citizen suit provisions. EPA's role regarding the open dumping prohibition was to promulgate regulations that contained criteria to distinguish between facilities that would be classified as "sanitary landfills" or "open dumps." At a minimum, a facility would be deemed a sanitary landfill if solid waste disposal at such a facility posed no reasonable probability of adverse effects on health or the environment. Disposal facilities that did not meet the criteria for sanitary landfills would be considered open dumps, prohibited under Subtitle D.

EPA's June 2010 Subtitle D option to promulgate standards applicable to owners and operators of landfills and surface impoundments that receive CCRs would be done pursuant to its existing authority under Subtitle D to promulgate criteria applicable to open dumping. Specifically, if finalized, the Subtitle D option would be implemented pursuant to EPA's authority under RCRA Section 4004 to identify criteria necessary to determining whether a facility should be classified as a "sanitary landfill" or an "open dump."

In 1984, the Hazardous and Solid Waste Amendments of 1984 (HSWA; P.L. 98-616) amended RCRA Subtitle D to—add Section 4010 "Adequacy of Certain Guidelines and Criteria" (42 U.S.C. §6949a); and amend the existing Section 4005, "Upgrading of Open Dumps," to include Section 4005(c), "Control of Hazardous Disposal" (42 U.S.C. §6945(c)). Pursuant to provisions in these sections, EPA promulgated the MSW landfill criteria (at 40 C.F.R. Part 258) and requirements necessary to determine the adequacy of state permit programs that implement those criteria (at 40 C.F.R. Part 239).

The manner in which the federal MSW landfill criteria were adopted, implemented, and enforced by states illustrates the limitations to EPA's authority under Subtitle D to require states to adopt, implement, and enforce federal criteria applicable to owner/operators of facilities that receive waste other than MSW. Beyond its limited authority to directly enforce the MSW landfill criteria in states without an EPA-approved permit program, EPA is not authorized to regulate any other type of nonhazardous solid waste (such as CCRs). Instead, EPA may only expand upon the landfill criteria relevant to the state-enforced prohibition of open dumping. Further, EPA has no authority to require or approve/disapprove of state solid waste permit programs applicable to facilities receiving any other type of solid waste regulated under Subtitle D.

Provisions in RCRA that prescribe EPA and state authorities to promulgate, implement, and/or enforce requirements broadly applicable to the management of nonhazardous solid waste are identified and summarized in Table A -1 .

Determining Criteria Necessary to "Protect Human Health and the Environment" Under RCRA

Under RCRA, when Congress has required EPA to promulgate regulations applicable to solid waste disposal facilities and required those regulation to be implemented using a permit program, at a minimum, those standards have been explicitly required to be those necessary to protect human health and the environment from threats specific to a particular type of waste disposal facility or units that may receive a particular type of waste. Regulatory criteria that meet that directive have been identified in the more than 30 years that EPA has gone through the public rulemaking process. With regard to waste management, necessary protections involve the identification of various factors, including, but not limited to

common methods of managing the waste—such as in a landfill or surface impoundment pond; analysis of toxic constituents—this step involves waste characterizations to identify constituents likely in the waste that may cause harm to humans, such as heavy metals; potential pathways of human exposure—the presence of toxic constituents alone is not relevant if they cannot reach humans (or the environment); pathways of exposure may include potential release to air or to water from precipitation run-on/runoff across the disposal site, or contaminant leaching to surface water or groundwater at levels that could lead to drinking water exceeding maximum contaminant levels (MCLs) established under the Safe Drinking Water Act; potential protective measures—waste management practices identified as those that may minimize human exposure to toxins below a standard specified according to federal law; such practices have included a requirement that composite liners be used at the site of deposition.

In gathering this information, EPA must rely on data provided by states and the potentially regulated industry. Much of what EPA knows now about what constitutes waste management criteria necessary to protect human health has been gleaned from the process to determine criteria applicable to hazardous waste treatment, storage and disposal facilities (TSDFs) and for MSW landfills. Final regulations represent the "minimum national standard" applicable to waste disposal facilities that, when implemented, would be expected to would achieve the standard of protection set in statute.

EPA considers risk to be the chance of harmful effects to human health or to ecological systems resulting from exposure to an environmental stressor. A stressor is any physical, chemical, or biological entity that can induce an adverse response. Stressors may adversely affect specific natural resources or entire ecosystems, including plants and animals, as well as the environment with which they interact. EPA uses risk assessments to characterize the nature and magnitude of health risks to humans (e.g., residents, workers, recreational visitors) and ecological receptors (e.g., birds, fish, wildlife) from chemical contaminants and other stressors that may be present in the environment.

Waste Management Criteria That Meet a Federal Performance Standard

Pursuant to a directive from Congress, the federal regulatory criteria applicable to MSW landfills were designed to "protect human health and the environment" from risks specific to the management of municipal solid waste in a landfill (see information included under "RCRA Section 4010a; 42 U.S.C. §6949a, Adequacy of certain guidelines and criteria," listed in Table A -1 ). Promulgated in 1991, those federal criteria (in 40 C.F.R. Part 258) have since been adopted and implemented by individual states.

In its June 2010 proposal to regulate CCRs, standards included in EPA's Subtitle D option were designed to meet the standard of protection established by Congress for sanitary landfills (requirements included under 40 C.F.R. Part 257). To meet that standard of protection, EPA's proposed standards applicable to CCR landfills and surface impoundments were designed to be those that would pose "no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility" (see information included under "§6944(a), Criteria for sanitary landfills," listed in Table A -1 ). In establishing that Subtitle D option, EPA drew largely from the existing MSW landfill criteria. However, those existing criteria would not address all risks specific to the management of CCRs in landfills and surface impoundments.

To recognize the differences between the existing MSW landfill criteria and EPA's proposed standards for CCR disposal units, Table A-2 compares each set of criteria. Listed under each column are individual requirements specifying general compliance standards (statements of purpose and scope, facility compliance deadlines, and program definitions) and regulatory criteria detailing location restrictions, operating criteria, design criteria, groundwater monitoring and corrective action, closure and post-closure care, and financial assurance. When individual requirements are largely similar, only the regulatory heading is included. When there is a significant difference between two requirements, additional information is provided to clarify that difference. Those descriptions are not intended to summarize the full range of detail in each requirement.

The most significant differences pertain to the potential regulation of surface impoundments. For example, requirements that would provide protections specific to the disposal of liquids are not included in Part 258 because bulk disposal of liquids is prohibited in MSW landfills. In comparison, EPA's June 2010 Subtitle D proposal includes various requirements intended to address issues unique to the management of CCRs, particularly the accumulation of liquids in surface impoundments and with regard to both the higher potential risk of a catastrophic release associated with a structural failure and contaminant leaching from those units.

For an example of the level of detail included in regulatory criteria, as well as an example of a requirement that EPA determined was necessary ensure that management of CCRs in surface impoundment would pose no reasonable probability of adverse effects on health or the environment, Table A-3 lists EPA's proposed "Design criteria for new CCR surface impoundments and lateral expansions" at 40 C.F.R. §257.72.

As an example of the level of detail provided in regulatory criteria, Table A-3 lists EPA's "Design criteria for new CCR surface impoundments and lateral expansions" at proposed 40 C.F.R. §257.72. As discussed in the section " Proposed EPA Standards to Address Risks Specific to CCR Management ," in EPA's assessment, the CCR damage cases and EPA's quantitative groundwater risk assessment show the need for effective liners—namely composite liners—to significantly reduce the probability of adverse effects. The proposed Subtitle D design standards would require that new landfills and all surface impoundments that have not completed closure prior to the effective date of the rule, can only continue to operate if composite liners and leachate collection and removal systems have been installed. Units would be required to be retrofitted with a liner or closed within five years of the effective date of the final rule. That is the same time frame EPA proposed under its Subtitle C alternative. EPA also proposed to require the same liner and leachate collection and removal systems as part of the Subtitle D criteria as those being proposed under its Subtitle C option. EPA noted that the technical justification for the requirements is equally applicable to the wastes and surface impoundment, irrespective of the statutory authority under which the requirement is proposed.

Appendix B. Requirements in 40 C.F.R. Part 239 and Comparable Program Elements in the Amendment to RCRA Proposed in the 112 th Congress

The State Implementation Rule (SIR), or Requirements for State Permit Program Determination of Adequacy at 40 C.F.R. Part 239, specify the requirements that state permit programs were required have to be deemed adequate by the EPA. An adequate program was one that EPA determined could ensure regulated facility compliance with the MSW landfill criteria. The requirements list the detailed information that states were required to provide to EPA, as well as the authorities, activities, and procedures a state would have to demonstrate that they had in place, before EPA would approve a state program as adequate to enforce the federal MSW landfill criteria.

Listed below are provisions included in the bills proposed in the 112 th Congress that appear to be drawn from the requirements included in 40 C.F.R. Part 239. Potential differences in program implementation can be seen when statutory requirements that would apply to a CCR Permit Program are compared to the regulatory requirements applicable to the permit program to implement the MSW landfill criteria at 40 C.F.R. Part 239 (listed in Table B-1 ). Those subsections are primarily the following:

4011(b) State Actions. Provisions pertaining to program certification include selected elements from Section 239.3, Components of Program Application and Section 239.4, Narrative Description of State Permit Program. 4011(c) Permit Program Specifications. Included under the "Minimum Requirements" in this section are five provisions (pertaining to Permits, State Notification, Agency Requirements, Agency Authority, and State Authority) that are drawn, in part, from selected individual criteria included among the Requirements for Adequate Permit Programs in Subpart C of Part 239. 4011(d) Written Notice and Opportunity to Remedy and 4011(e) Implementation by Administrator. Both sections include provisions drawn, in part, from selected elements in 40 C.F.R. §239.13, Criteria and procedures for withdrawal of determination of adequacy. 4011(k) Definitions. Proposed definitions comparable to those in 40 C.F.R. Part 239 are those for "coal combustion residuals permit program" and "permit." The applicability of a CCR Permit Program would also depend on the definition of a "structure" (at proposed Section 4011(k)(6)), which would mean a landfill, surface impoundment, or other land-based unit which may receive CCRs, but would not include any land-based unit that receives only de minimis quantities of CCRs.

Appendix C. RCRA Provisions and EPA Responses Related to Directives in the "Bevill Amendment"

As required under Subtitle C, EPA first proposed hazardous waste management regulations in 1978. In these proposed regulations, EPA identified six categories of wastes it deemed "special wastes" that would be deferred from hazardous waste management requirements until further study and assessment could be completed to determine their risk to human health and the environment. These special wastes were identified because they typically were generated in large volumes and, at the time, were believed to pose less risk to human health and the environment than the wastes being identified for regulation as hazardous waste.

In the months before the hazardous waste regulations were finalized in 1980, Congress was debating RCRA reauthorization. In February 1980, Representative Tom Bevill introduced an amendment to the pending legislation that would require EPA to defer the imposition of hazardous waste regulatory requirements for fossil fuel combustion waste until data regarding its potential hazard to human health or the environment could be determined. Representative Bevill stated that EPA's intent to regulate such waste as hazardous would discourage the use of coal and constitute an unnecessary burden on the utility industry. In anticipation of the enactment of this legislation, according to EPA, the agency excluded the regulation of fossil fuel combustion waste from its final hazardous waste regulations.

Ultimately, the Solid Waste Disposal Act Amendments of 1980 (P.L. 96-482) included provisions commonly referred to as the "Bevill Amendment" or the "Bevill exclusion." Under those provisions Congress specifically excluded CCRs from regulation under RCRA Subtitle C, pending EPA's completion of a report to Congress and regulatory determination on whether hazardous waste regulations were warranted. Pursuant to that directive, EPA was required to conduct a comprehensive study and submit to Congress a report on the adverse effects on human health and the environment related to the disposal and utilization of wastes and other byproduct materials generated primarily from the combustion of coal or other fossil fuels, including an analysis of

the source and volumes of such material generated per year; present disposal and utilization practices; potential danger, if any, to human health and the environment from the disposal and reuse of such materials; documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; alternatives to current disposal methods; the costs of such alternatives; the impact of those alternatives on the use of coal and other natural resources; and the current and potential utilization of such materials.

Further, as it deemed appropriate, EPA was required to review studies and other actions of other federal and state agencies regarding the material and invite participation by other concerned parties, including industry, with a view toward avoiding duplication of effort.

Both legislative and administrative actions regarding the potential regulation of CCRs, particularly EPA action taken in response to the Bevill directive and more recent action taken in the wake of the Kingston release, are summarized in Table C-1 .

In March 2000, EPA submitted its "Regulatory Determination on Wastes from Fossil Fuel Combustion" to the White House Office of Management and Budget, for review. In this March draft, EPA determined that CCRs warranted regulation under Subtitle C when land disposed (e.g., managed in landfills or surface impoundments). Further, EPA stated that it was considering developing national management standards that would include a contingent hazardous waste listing of CCRs under Subtitle C. That is, when the waste was managed in accordance with EPA standards, they would not be classified as hazardous waste. When improperly managed (e.g., disposed of in an unlined surface impoundment) the wastes would become a listed hazardous waste subject to tailored Subtitle C standards.

EPA recognized that its March 2000 proposal was a departure from previous opinions regarding the management of CCRs. EPA's determination that CCRs warranted regulation as hazardous waste was based, in part, on data from damage cases that showed the potential threat to human health and the environment when the waste was managed in a way that lacked basic environmental control (e.g., disposal in units with no liner or groundwater monitoring). Additionally, EPA cited new data that identified significant risks for the waste to leach arsenic, including risk to human health associated with agricultural uses of coal ash a substitute for lime.

In May 2000, after review by OMB, EPA issued a revised regulatory determination that stated its intent to leave the Bevill exclusion in place. However, EPA stated that it was convinced that national regulations under Subtitle D were warranted for CCR disposal in landfills and surface impoundments because

1. the composition of the waste had the potential to present danger to human health and the environment in certain circumstances; 2. EPA had identified proven cases of damages to human health and the environment through improper waste management; 3. while industry management practices had improved measurably, there was sufficient evidence the wastes were being managed in a significant number of landfills and surface impoundments without proper controls in place, particularly in the area of groundwater monitoring; and 4. while there had been substantive improvements in state regulatory programs, EPA identified significant gaps either in states' regulatory authorities or in their exercise of existing authorities.

Further, citing its concern regarding the potential mismanagement and inconsistent state regulation of CCRs, EPA stated that it would revise its determination if it found that a need for regulation under Subtitle C was warranted. EPA's June 2010 proposal reflects the agency's revised determination.