Proposals to Amend RCRA: Analysis of Pending Legislation Applicable to the Management of Coal Combustion Residuals
Released: 2012-06-19T00:00:00

Introduction

Coal combustion residuals (CCRs) are the inorganic material that remains after pulverized coal is burned. To establish consistent national standards to address potential threats to human health and the environment associated with improper management of CCRs destined for disposal, on June 21, 2010, the Environmental Protection Agency (EPA) proposed for public comment two regulatory options applicable to the material.

Under the first proposal, EPA would reverse previous regulatory determinations to exempt CCRs from regulation as a hazardous waste and list the material as a "special waste" pursuant to its authorities under Subtitle C of the Resource Conservation and Recovery Act (RCRA; 42 U.S.C. §6901 et seq.). Under Subtitle C, EPA has broad authority to regulate wastes it identifies as "hazardous," from its generation to its ultimate disposal (i.e., from "cradle to grave"). Under its Subtitle C option, EPA would require CCRs destined for disposal in a landfill or surface impoundment to be managed in accordance with requirements or standards applicable to hazardous waste generators; owners and operators of hazardous waste treatment, storage, and disposal facilities (TSDF); and TSDF permit programs. The Subtitle C option would create federal standards enforceable by EPA, but likely adopted and implemented (and ultimately enforced) by individual states.

Under the second proposal, EPA would promulgate national standards applicable to landfills and surface impoundments that receive CCRs, in accordance with its authority regarding the management of non-hazardous solid waste under Subtitle D of RCRA. If this option were selected, the standards would be similar to those applicable to municipal solid waste (MSW) landfills, but would take into consideration issues specific to the management of CCRs, particularly controls necessary to address the accumulation of liquid wastes in surface impoundments. In contrast to its Subtitle C option, EPA has no authority to enforce the standards it proposes under the Subtitle D option. EPA is authorized to promulgate federally enforceable waste management criteria only for MSW landfills and no other facilities that may receive non-hazardous solid wastes. Instead, EPA could finalize the proposed Subtitle D standards, but they would be enforced by states that choose to adopt and apply them to owners and operators of CCR landfills and surface impoundments.

EPA's proposal drew comments from industry groups, environmental and citizen groups, state agency representatives, individual citizens, and some Members of Congress. Concerns over the Subtitle C proposal relate to its ultimate impact in terms of implementation costs to both industry and states, energy prices, and CCR recycling opportunities. With regard to the Subtitle D proposal, the primary concerns stem from EPA's lack of authority to 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 all states would adopt them, resulting in the promulgation but not implementation of any new requirements necessary to ensure protection of human health and the environment. Commenters have proposed various legislative options in response to the varied concerns over EPA's proposed regulatory options. Possible legislative options that have been debated include an explicit directive to EPA to regulate or prohibit CCR regulation under Subtitle C or Subtitle D.

Another legislative option, the Coal Residuals Reuse and Management Act ( H.R. 2273 ), was passed by the House on October 14, 2011, and introduced in the Senate ( S. 1751 ) on October 20, 2011. The proposal would amend Subtitle D of RCRA by adding Section 4011, Management and Disposal of Coal Combustion Residuals. That amendment would create a coal combustion residuals permit program, defined as "a permit program or other system of prior approval and conditions that is adopted by or for a state for the management and disposal of coal combustion residuals to the extent such activities occur in structures in such state."

Legislative provisions largely identical to those in the Coal Residuals Reuse and Management Act are included in legislation that would extend the authorization of federal funding for surface transportation programs administered by the Department of Transportation (DOT). Specifically, Title V of H.R. 4348 (passed in the House on April 18, 2012) includes language identical to H.R. 2273 and S. 1751 . On April 24, 2012, the Senate agreed by unanimous consent to an amendment that struck the House-passed language from H.R. 4348 and substituted the language of the Senate-passed bill to reauthorize DOT programs ( S. 1813 , the Moving Ahead for Progress in the 21 st Century Act, or MAP-21). The Senate subsequently asked for a conference and appointed conferees. As a result, provisions of the proposed Coal Residuals Reuse and Management Act are being debated in the conference over the transportation reauthorization legislation.

This report provides background information concerning the provisions in the proposed Section 4011 of RCRA in H.R. 2273 , S. 1751 , and Title V of H.R. 4348 . In particular, it identifies issues associated with potential state adoption and implementation of the proposed CCR permit program. Unique to the proposal would be the creation of a permit program in federal statute, absent the promulgation of related federally enforceable standards. Requirements applicable to the program's adoption and implementation would be those created within the amendment to RCRA. It would not authorize the agency with jurisdiction over RCRA's implementation (EPA) to promulgate regulations detailing permit program requirements or regulations applicable to facilities that may be expected to obtain a permit pursuant to the program. Instead, requirements applicable to the proposed statutory CCR permit program would draw upon selected existing regulations promulgated pursuant to Subtitle D applicable to the management of municipal solid waste (MSW). It would also draw from selected elements of EPA's June 2010 Subtitle D proposal to regulate CCR landfills and surface impoundments.

Considering their influence on the potential adoption and implementation of a CCR permit program, this report identifies relevant elements of proposed and existing regulatory requirements under Subtitle D. In particular, the report distinguishes between EPA and state agency authorities in regulating nonhazardous solid wastes under Subtitle D, including EPA's role in developing and individual state roles in enforcing those requirements. The report also summarizes selected MSW landfill regulations and standards proposed by EPA in June 2010 under Subtitle D. Finally, with regard to the legislative proposals that would amend Subtitle D, the report summarizes provisions in the proposed Section 4011 of RCRA; identifies potential issues associated with implementing a statutory permit program; and compares details of the regulatory requirements applicable to MSW landfills, on which the legislative proposal is based, to comparable elements of the proposed CCR permit program.

As noted above, the focus of this report is the legislative proposal to amend Subtitle D of RCRA and the CCR permit program that would be created pursuant to the proposed amendment. Analysis specific to EPA's June 2010 proposal and details regarding the options it proposed under Subtitles C and D of RCRA are discussed separately in CRS Report R41341, EPA's Proposal to Regulate Coal Combustion Waste Disposal: Issues for Congress , by [author name scrubbed].

Background

In 2010, 45% of the electricity generated in the United States used coal as its source of fuel. Pulverized coal burned for electricity production generates a tremendous amount of residual inorganic material. In 2010, industry estimates that as much as 130 million tons of CCRs were generated, making it 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 pond) 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 2014 and will cost $1.2 billion.

The incident at Kingston, as well as smaller incidents that resulted from improper CCR management, 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.

The Nature of CCRs and Concern over CCR Management

CCRs are the inorganic residues that remain after pulverized coal is burned. The chemical composition of CCRs generated at a given plant depends on the type and source of the coal burned, as well as the combustion technology and air pollution control technology used at the plant. In data maintained by EPA, the agency has identified more than 40 toxic constituents that may be present in CCRs, including antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, and selenium.

The fact that toxic constituents are present in a waste does not in itself mean that it poses a risk to humans or the environment. The degree to which there is actual risk depends on whether those constituents can find a pathway of human exposure and whether the resulting level of exposure is likely to be high enough to cause harm. Human exposure to contaminants has been demonstrated through the direct discharge or release of liquid waste to surface water (accidentally, as in Kingston, or on purpose, generally pursuant to the provisions of a permit, or as a result of improper run-on/run-off control during rain/flood events) or through fugitive dust emissions (when fine particulates associated with the dried ash become airborne). However, the most common pathway of exposure has occurred through contaminant leaching when the waste was deposited in an unlined landfill or surface impoundment.

In 1980, EPA was statutorily required to provide an analysis of both potential risks and actual documented damages to human health and the environment from CCR disposal and use. Since then, EPA has gathered and released data, analysis, and studies that have identified potential risks and damages associated with CCR management. Most notably, in March 2000, EPA submitted a draft "Regulatory Determination on Wastes from Fossil Fuel Combustion" to the White House Office of Management and Budget (OMB). In it, EPA stated that CCRs warranted regulation as a hazardous waste under Subtitle C of RCRA when CCRs were land disposed (e.g., disposed of in a landfill or accumulated in a surface impoundment). Further, EPA stated that it was considering developing national standards that would include a contingent hazardous waste listing of CCRs under Subtitle C. That is, EPA would not classify CCRs as a hazardous waste contingent upon CCR management in accordance with certain standards. However, when improperly managed (such as through disposal or accumulation in an unlined landfill or surface impoundment), CCRs would become a listed hazardous waste subject to tailored Subtitle C standards.

In its draft regulatory determination, EPA recognized that its March 2000 proposal was a departure from its previous opinions regarding the management of CCRs. However, EPA stated that its 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 controls (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.

In May 2000, after review by OMB, EPA issued a revised regulatory determination stating that it would continue to exclude CCRs from regulation as hazardous waste under Subtitle C. However, similar to statements in its March 2000 draft proposal, EPA stated that it was convinced that national regulations under Subtitle D were warranted for CCR disposal in landfills and surface impoundments because

the composition of the waste had the potential to present danger to human health and the environment in certain circumstances; EPA had identified proven cases of damages to human health and the environment through improper waste management; 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 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 Action After the Kingston Release

In the wake of events at Kingston, after 10 years of additional study, debate, and controversy over the appropriate method of regulating CCRs, EPA did propose to revise its May 2000 determination. On October 16, 2009, EPA again submitted a draft proposal to revise its regulatory determination and list the material as hazardous waste under Subtitle C of RCRA. EPA sent the draft to OMB's Office of Information and Regulatory Affairs (OIRA). As in March 2000, EPA proposed to draw on its existing authority to identify and list a waste as "hazardous" and regulate it as such pursuant to Subtitle C of RCRA. In EPA's reexamination of its 2000 regulatory determination proposal, the following findings are among the most significant:

Revised risk assessment findings. EPA determined that there is a high risk of human exposure to carcinogens, such as lead, selenium, and arsenic, when CCRs are deposited into unlined landfills and surface impoundments. Higher risks were observed for surface impoundments compared to landfills due to higher waste leachate concentrations and the higher hydraulic pressure from impounded liquid waste. The risk assessment showed that CCRs can be managed safely with the use of composite liners, but called into question the reliability of clay liners, especially in surface impoundments. Additional evidence of actual damages/contamination. EPA updated its list of damages to include 27 cases of proven damages to surface and groundwater and 40 cases of potential damage associated with the improper management of CCRs. In addition to impacts on human health from surface and groundwater contamination, EPA's damage cases document adverse effects to plants and wildlife. The threat of a catastrophic release. Recent damage cases, such as the Kingston release and a similar, smaller incident in 2005 in Martins Creek, PA, were considered evidence that current management practices can pose additional risks that EPA had not previously studied—that is, from catastrophic releases due to the structural failure of surface impoundments. Continued inconsistencies among state requirements. According to 2009 survey data, among responding states, 36% did not have minimum liner requirements for landfills, 67% did not have liner requirements for surface impoundments, 19% did not have minimum groundwater monitoring for landfills, and 61% did not have minimum groundwater monitoring for surface impoundments. 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." Further, while the states seem to be regulating landfills to a greater extent, given the significant risks associated with surface impoundments, survey results suggest that there continue to be significant gaps in state regulatory programs for the disposal of CCRs. The number of CCR units likely operating without protections EPA has identified as necessary. While new CCR facilities are likely to be built with liners and groundwater monitoring systems, the majority of facilities currently in use are not new. For example, EPA determined that 75% of surface impoundments in use today are more than 25 years old, with 10% being more than 50 years old. Such units are unlikely to have a liner or groundwater monitoring, and are more likely to leach contaminants. Further, 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 estimated that with an average life expectancy of approximately 31 years, those older disposal facilities would likely continue to operate without necessary protections in place well into the future.

After OMB's review, EPA's draft proposal underwent substantial changes. Its final proposal was published on June 21, 2010. In that proposal, EPA stated that the decision to revise the May 2000 regulatory determination had not yet been made, and proposed an additional regulatory option for consideration. That second regulatory option would continue to exclude CCRs from regulation as hazardous waste under Subtitle C, and establish national criteria applicable to landfills and surface impoundments under RCRA's Subtitle D nonhazardous solid waste requirements. The primary reason EPA cited for including the option to regulate CCRs under Subtitle D's solid waste requirements was industry's argument that the "hazardous waste" label would stigmatize beneficial uses of the material and ultimately increase the amount that must be disposed.

Existing State and Federal Authorities to Manage CCRs

In the wake of EPA's June 2010 proposal to regulate the management of CCRs, debate over the regulatory option EPA should select has focused on existing state and federal authorities under RCRA to implement or enforce either option. Broadly, EPA currently has the authority to implement and directly enforce its Subtitle C option, but could only encourage states to implement and enforce its Subtitle D option. Under both regulatory options, owners and operators of CCR landfills and surface impoundments would be required to implement protective measures that are largely similar (e.g., under both options facilities would be required to install composite liners and groundwater monitoring). A significant difference between the two options would be in EPA's authority to enforce the standards directly or to require states to enforce them, summarized as follows:

Under the Subtitle C option —individual facility compliance with the regulations must be demonstrated in accordance with a federal or EPA-authorized state permit program. EPA would have direct enforcement authority with regard to waste management requirements, including those applicable to CCR generators, transporters, and treatment, storage, and disposal facilities, and mechanisms for corrective action and financial responsibility. Before the rules would become effective, states authorized to implement Subtitle C programs would need to adopt the rule, a process that could take several years. Under the Subtitle D option —individual regulated facilities (e.g., power plants that dispose of/accumulate CCRs on-site) would be required to implement the standards within approximately six months of promulgation. EPA would have no direct enforcement authority to ensure facility compliance or to require states to adopt a permit program to ensure facility compliance. Instead, the standards could be enforced by states or citizens, pursuant to RCRA citizen suit authority. EPA could not require states to enforce the standards, but would encourage them to do so.

EPA's Subtitle D approach to regulating CCR disposal facilities is generally supported by state regulatory agencies and industry groups. Included among their arguments in favor of this approach are: there is not enough evidence that the material poses a significant threat to human health or the environment to warrant regulation as hazardous waste; regulating it as hazardous would be unnecessarily costly and burdensome to both industry and state regulators; and current state regulation of CCRs is sufficiently protective of human health and the environment. Also, industry groups argue that labeling the material as "hazardous" or regulating it under Subtitle C requirements would stigmatize the material, thus limiting potential options for reuse and ultimately increasing the amount of waste sent for disposal.

Environmental and citizen groups opposed to the Subtitle D approach have argued, in part, that EPA's recent waste characterization studies have sufficiently demonstrated the toxicity of CCRs. Further, given EPA's lack of authority to enforce it, a Subtitle D approach would not address issues identified in EPA's risk and damage case assessments. In particular, under the Subtitle D option, CCRs would likely continue to be managed in accordance with inconsistently applied state requirements. Additionally, it has been argued that reliance on citizen suits to enforce EPA's Subtitle D standards would be burdensome on the public and an unreliable method of implementing national disposal standards. Finally, under the Subtitle D proposal, EPA would have no authority to require financial assurance to insure cleanup if contamination is discovered.

EPA Requirements Relevant to the Proposed Legislation

The proposed CCR permit program would draw from certain waste management standards promulgated or proposed by EPA pursuant to Subtitle D: specifically, existing regulatory standards applicable to the management of municipal solid waste (MSW) and selected proposed standards applicable to CCR landfills and surface impoundments. To understand the provisions in the proposed amendment to RCRA, it is useful to understand the requirements from which the legislative proposal would be drawn.

Existing Municipal Solid Waste Management Requirements

Under Subtitle D, states have the primary authority to implement and enforce standards applicable to facilities that receive nonhazardous solid waste for disposal. However, for a narrow category of waste, EPA has limited authority to promulgate and ensure state enforcement of Subtitle D standards. That authority derives from directives included under Section 4005 of RCRA that required

1. EPA to promulgate regulatory criteria applicable to facilities that receive MSW; 2. states to adopt and implement a permit program to ensure facility compliance with the MSW criteria; 3. EPA to determine the adequacy of each state MSW permit program; and 4. EPA to enforce its MSW criteria in states determined to have an inadequate MSW permit program.

As a result of these directives, EPA promulgated two separate but related federal standards:

"Criteria for Municipal Solid Waste Landfills" in 40 C.F.R. Part 258, applicable to owners and operators of MSW landfills; and "Requirements for State Permit Program Determination of Adequacy" in 40 C.F.R. Part 239, applicable to states, to ensure facility compliance with the MSW landfills criteria.

MSW Landfill Criteria

Under Section 4010 of RCRA, Congress specified a legal standard of protection that EPA was required to meet in promulgating the MSW landfill criteria—that criteria be "those necessary to protect human health and the environment and may take into account the practicable capability of such facilities." At a minimum, they were to include criteria for groundwater monitoring, necessary to detect contamination; criteria for the acceptable location of new or existing facilities; and corrective action provisions, as appropriate. EPA's resulting criteria for MSW landfills include detailed, national technical standards under the following Subparts of 40 C.F.R. Part 258:

Location Restrictions, Operating Criteria, Design Criteria, Groundwater Monitoring and Corrective Action Requirements, Closure/Post-Closure Care, and Financial Assurance Criteria.

Required elements of each Subpart are listed in Table A -1 in Appendix A .

The regulations define a "municipal solid waste landfill," in part, as a discrete area of land or an excavation that receives household waste, and that is not a land application unit, surface impoundment, injection well, or waste pile. In accordance with this definition, facilities regulated under these criteria receive predominantly dry wastes. That is, the MSW landfill criteria are not intended to establish standards applicable to facilities that accumulate liquid wastes (i.e., surface impoundments).

MSW landfill units failing to satisfy MSW landfill criteria constitute "open dumps," prohibited under Section 4005 of RCRA. However, in contrast to EPA's limited authority to enforce that prohibition (i.e., to enforce standards applicable to sanitary landfills in 40 C.F.R. Part 257 that are enforceable largely by states), EPA was authorized to enforce its MSW landfill criteria in states that did not have an approved permit program (described below).

State MSW Permit Program Requirements

Within 18 months of EPA promulgating the MSW criteria, each state was required 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. As defined in EPA's regulations, a state solid waste permit program refers to all the authorities, activities, and procedures that comprise the state's system of prior approval and conditions for regulating all solid waste disposal facilities subject to the MSW landfill criteria in 40 C.F.R. Part 258. The "permit program" itself represents the body of requirements and procedures that a state must have in place in order to adequately demonstrate to EPA that it will apply the MSW landfill criteria to the owners and operators of those facilities and ensure enforcement of facility compliance. EPA requirements in 40 C.F.R. Part 239 applicable to its MSW permit program adequacy determination include

Required components of a permit program application. Details the information that must be included in a state's permit application, including a narrative description and legal certification of the program. State requirements necessary to demonstrate the adequacy of permit programs. Details the state laws/procedures that must be in place to assure facility compliance with applicable MSW landfill criteria, including appropriate state compliance monitoring and enforcement authorities and procedures applicable to state intervention in civil enforcement proceedings. EPA procedures for making its adequacy determination. Specifies procedures and deadlines that EPA will adhere to in determining the adequacy of a state MSW permit program, including criteria under which EPA may withdraw its determination that a state has an adequate permit program.

Individual requirements applicable to EPA's determination of state permit program adequacy, particularly as they may be compared to legislative proposals to amend Subtitle D of RCRA, are summarized in Table B -1 in Appendix B .

In states determined to have an inadequate permit program or that fail to maintain an adequate program, EPA is allowed to exercise its authorities regarding facility inspection and federal enforcement as necessary to enforce applicable MSW landfill criteria. That is, the MSW landfill criteria are federally enforceable, directly by EPA, insofar as it is authorized to enforce the standards at facilities in states that it determines do not have an adequate permit program. Once a permit program is approved by EPA, a state is responsible for enforcing the federal MSW landfill standards and issuing permits to individual owners and operators of MSW landfills. The permit itself provides documentation to demonstrate the facility's compliance with the federal and any state (if applicable) MSW landfill criteria.

The manner in which the MSW regulations must be 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 standards applicable to wastes other than MSW. That is, EPA was explicitly authorized in RCRA to develop criteria applicable to facilities that receive "hazardous household waste" (i.e., MSW), and to determine the adequacy of state permit programs intended to ensure facility compliance with those criteria. Beyond its authority to regulate MSW, for any other type of nonhazardous solid waste (such as CCRs), EPA may only expand upon requirements applicable 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.

Proposed Standards Applicable to CCR Landfills and Surface Impoundments

In its June 2010 proposal, EPA would promulgate the Subtitle D standards pursuant to its existing authority to promulgate regulations specifying criteria applicable to sanitary landfills. Pursuant to Section 4004 of RCRA, the criteria would be those necessary to ensure that ''no reasonable probability of adverse effects on health or the environment'' will result from disposal facilities or practices. The proposal would amend existing Criteria for Classification of Solid Waste Disposal Facilities and Practices in 40 C.F.R. Part 257 to add "Standards for the Receipt of Coal Combustion Residuals in Landfills and Surface Impoundments." The standards would apply to owners and operators of CCR landfills and surface impoundments, defined as:

CCR landfill —a disposal facility or part of a facility where CCRs are placed in or on land and which 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. 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 —a 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 (e.g., holding, storage, settling, and aeration pits, ponds, and lagoons). Such units 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.

Although included under the Part 257 standards applicable to sanitary landfills, EPA's regulatory proposal more closely resembles its criteria applicable to MSW landfills in 40 C.F.R. Part 258. For example, similar to the MSW landfill criteria, it would specify location restrictions, operating and design criteria, groundwater monitoring, and corrective action requirements. However, when compared to the MSW landfill criteria, the significant difference in the proposed CCR standards relates to requirements EPA has identified as those necessary to ensure protection from CCR disposal, particularly the disposal of liquids (prohibited in MSW landfills). For example, requirements intended to address conditions or issues unique to disposal facilities that receive CCRs include the following:

New disposal facilities (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 facilities 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 subject to closure. New disposal facilities 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. To insure structural integrity, surface impoundments would be required to operate in accordance with regulations similar to those promulgated under the Mine Safety and Health Administration (MSHA) at 30 C.F.R. §77.216. Facilities would be subject to fugitive dust controls and liquid run-off/run-on control specific to CCR disposal facilities.

(Differences between the existing MSW landfill criteria and EPA's proposed Subtitle D standards can be seen in a comparison of both sets of standards, listed in Table A -1 in Appendix A .)

If implemented, CCR facilities that fail to satisfy the Subtitle D standards would be operating in violation of RCRA's prohibition of open dumping. EPA would have no authority to directly enforce the requirements at individual facilitates. Under Subtitle D's open dumping prohibition, EPA could promulgate the criteria, but could only encourage states to adopt and apply them to owners and operators of CCR disposal facilities. EPA would have no authority to require states to enforce them. Further, EPA would have no authority to develop federal approval procedures for state adoption of the criteria similar to its authority to determine the adequacy of a state MSW permit program. However, states could develop their own regulations and/or permitting programs using their solid waste laws or other state authorities.

In its proposal, EPA notes that if states do not adopt the proposed CCR management standards, facilities would still have to comply with the proposed Subtitle D criteria, if finalized. For that reason, EPA has proposed its requirements in a way that would be self-implementing. That is, facilities could implement them without interaction with state regulatory officials. Still, if facilities choose not to self-implement the proposed criteria (particularly in a state that chooses not to adopt them), there are limited enforcement mechanisms to require facilities to do so. EPA argues that the requirement to make facility compliance information available to the public would allow citizens to enforce the requirements, if a state chooses not to. However, the ability of citizens to gather necessary information to move forward with a citizen suit could be complicated if a facility does not disclose the specified information. Again, there are limited enforcement options to compel a facility to produce that information. For example, in its proposal, EPA requires owners and operators of CCR landfills and surface impoundments to make certain facility records available to the public. However, absent state enforcement of those reporting requirements, it is uncertain whether such records would be made readily available to the public.

Legislative Proposal to Amend RCRA

The legislative proposal to amend Subtitle D of RCRA would add a Section 4011, Management and Disposal of Coal Combustion Residuals. Under that section, a permit program for the management and disposal of CCRs would be created.

Summary of Proposed Amendment to Subtitle D

Under the proposed amendment to RCRA, states would have the option of adopting a CCR permit program, and EPA would be required to implement the program in states that decline to do so (EPA has stated that, if enacted, all states with coal-fired power plants would likely choose to adopt the CCR permit program). Following are the key subsections of the proposed Section 4011 of RCRA:

"S tate Actions." Within six months of enactment, states would be required to notify EPA whether they intend to implement a CCR permit program. Within 36 months of enactment, states choosing to implement the program would be required to submit a certification to EPA regarding their permit program (required elements of that certification are similar to the required components of state MSW permit program applications in 40 C.F.R. Part 239). To adopt or implement the program, a state would be required to maintain an approved MSW landfill permit program or be authorized to implement the federal hazardous waste management program under Subtitle C of RCRA. " Permit P rogram S pecifications ." Instead of a directive to EPA to promulgate criteria specific to owners and operators of CCR structures, states would be directed to apply "Minimum Requirements" to their permit programs. Included among those requirements are selected elements of EPA's June 2010 proposal. Primarily, however, the specifications would apply certain "revised criteria," defined essentially as the regulations in 40 C.F.R. Part 258, to a state permit program. (For a list of criteria applicable to the permit program included under the proposed Permit Program Specifications, compared to EPA's detailed MSW landfill criteria and EPA's June 2010 proposed standards, see Table A-1 in Appendix A .) Each state could determine that one or more of the revised criteria are not necessary to manage CCR structures in the state and decline to apply them to its permit program. " Written N otice and Opportunity to Remedy." Under this subparagraph, at any time, EPA would be required to identify and provide the state with written notice of deficiencies it identifies in certain elements of its permit program. EPA could identify deficiencies with regard to a state—complying with provisions required under "State Actions" and in meeting the permit program specifications, including its decision to decline to apply certain MSW landfill criteria to its permit program. EPA would be required to collaborate with the state to identify a reasonable deadline for the state to remedy the deficiencies. That deadline could not be sooner than six months after the state receives the deficiency notice. " Implementation by Administrator ." Specifies that EPA would be authorized to implement a CCR permit program if a state declines to do so, notifies EPA that it will no longer implement the program, or fails to remedy program deficiencies by the agreed-upon deadline and after any judicial review brought by the state pursuant to Section 7006 of RCRA. "Authority." Specifies that states may adopt or enforce any regulation or requirement applicable to CCRs that is more stringent or broader in scope than those in the proposed amendment. Specifies that EPA shall, with respect to the regulation of CCRs, "defer" to the states with respect to the proposed amendment to RCRA.

Further, as used in the proposed Section 4011, the following terms would be defined:

Coal Combustion Residuals —materials defined under Section 3001 of RCRA (i.e., fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels as specified under 42 U.S.C. §6921(b)(3)(A)(i)), including recoverable materials from such wastes, as well as descriptions of CCRs used in previous EPA regulatory determinations regarding its management (e.g., coal combustion wastes that are co-managed with wastes produced in conjunction with the combustion of coal, provided that such wastes are not segregated and disposed of separately from the coal combustion wastes and comprise a relatively small proportion of the total wastes being disposed in the structure). Coal Combustion Residuals Permit Program— a permit program or other system of prior approval and conditions that is adopted by or for a state for the management and disposal of coal combustion residuals to the extent such activities occur in structures in such state. Structure —a landfill, surface impoundment, or other land-based unit which may receive coal combustion residuals. Revised criteria —the criteria promulgated for MSW landfill units under Section 4004(a) and Section 1008(a)(3), as revised under Section 4010(c) in accordance with the requirement of such section that the criteria protect human health and the environment (i.e., the MSW landfill criteria in 40 C.F.R. Part 258).

A Statutory Versus a Regulatory Permit Program

The proposed amendment to RCRA would create a state-based permit program under Subtitle D that uses the MSW landfill requirements as its basis, but does not direct EPA to develop standards applicable to its adoption or implementation. By creating such a program entirely within the proposed statute, Congress would create a permit program unique among environmental laws.

Generally, for other environmental laws, Congress has specified a legal standard of protection, then directed EPA to develop criteria necessary to meet that standard. More simply, Congress would likely declare, either generally or in specific detail, why or what standards are needed, then direct EPA to promulgate regulations detailing how those standards should be met. Generally, regulatory standards would apply to an entity explicitly identified in statute (e.g., facilities that receive MSW for disposal). Before it could promulgate final federal agency standards, EPA would be required to allow the public an opportunity to comment on its regulatory proposal and to respond to those comments. Once finalized, depending on the statutory directive, the standards may or may not be federally enforceable. That is, Congress may give EPA express authority to both promulgate certain standards and enforce them, or to just promulgate standards and require states to enforce them. Generally, most federal environmental standards are enforced by states, pursuant to some EPA authorization or approval (also, as explicitly required in statute).

Congressional directives regarding some environmental standards have been broad and subject to a certain degree of discretion or interpretation by EPA. For example, in its directive to EPA to develop MSW landfill criteria, Congress broadly required the criteria to be those "necessary to protect human health and the environment," but specified the need for minimum requirements applicable to groundwater monitoring, location restrictions, and corrective action.

Over the past several years, some industry groups and state regulatory agencies, as well as some Members of Congress, have charged that EPA has overreached its authority in promulgating certain environmental regulations. Particular focus has been directed at EPA efforts to develop federal standards to address greenhouse gas emissions, as well as emissions of other conventional pollutants, pursuant to the Clean Air Act. (See CRS Report R41561, EPA Regulations: Too Much, Too Little, or On Track? , by [author name scrubbed] and [author name scrubbed].)

Charges of overreaching its regulatory authority have also been cited by certain opponents to EPA's proposal to identify and regulate CCRs as a hazardous waste under Subtitle C. Creation of a CCR permit program in the proposed amendment to RCRA could be seen as an effort to create a mechanism to manage CCRs that would allow states wide discretion in adopting and implementing the program, while limiting the potential involvement of EPA. However, given the limits to EPA's role in program development or implementation, it is unclear whether a CCR permit program implemented under the proposed Section 4011 would result in a state applying regulatory standards to CCR landfills or surface impoundments that would differ appreciably from those it currently applies.

As a statutory permit program, requirements that would serve as "regulations" applicable to the permit program are those contained within the proposed Section 4011. How such a permit program may ultimately be implemented, when compared to the MSW management program on which it is based, is difficult to determine. To recognize the similarities and distinct differences between the two, it is useful to compare provisions in the proposed CCR permit program to existing requirements applicable to MSW landfills, as well as elements of EPA's June 2010 proposal to regulate CCR disposal facilities under Subtitle D.

As detailed in the discussion of " Existing Municipal Solid Waste Management Requirements ," above, the federal regulatory framework applicable to MSW management was developed as a result of four distinct yet interrelated directives in Subtitle D that required (1) EPA to promulgate national criteria applicable to MSW landfills; (2) states to adopt a permit program to assure facility compliance with those criteria; (3) EPA to determine the adequacy of state permit programs; and (4) EPA to enforce the MSW landfill criteria in states with an inadequate permit program. In contrast, EPA's June 2010 Subtitle D proposal and the proposed Section 4011 of RCRA would each include only a single element of the four directives that resulted in a federally enforceable program to manage MSW. That is:

EPA's Subtitle D proposal would promulgate standards applicable to owners and operators of CCR landfills and surface impoundments. P roposals to amend RCRA would create a permit program applicable to states.

Absent an explicit directive or authorities comparable to those applicable to MSW management, neither EPA's Subtitle D proposal nor the legislative proposals to amend RCRA involve the creation of federally enforceable standards applicable to owners and operators of CCR landfills or surface impoundments. Under EPA's Subtitle D proposal, federal standards applicable to owners and operators would be promulgated, but not federally enforceable. Under the proposed Section 4011, selected elements of the MSW landfill requirements and EPA's June 2010 proposal would apply to a CCR permit program, but no federal standards would be applied directly to owners and operators of CCR structures or provide for conditions under which any national standards may be federally enforceable. There are certain key directives missing from the proposed Section 4011 that would need to be included to explicitly require states to apply standards, similar to those applicable to MSW landfills, directly to CCR structures. This can be seen when the regulatory criteria applicable to the management of MSW are compared to the statutory requirements that would apply to a CCR permit program, as detailed in the proposed Section 4011.

"Permit Program Specifications" Compared to MSW Landfill Criteria

Instead of applying regulatory criteria to CCR structures (the entities that may be expected to obtain a CCR permit under the proposed program), Permit Program Specifications in the proposed Section 4011 apply certain requirements to the CCR permit program . The proposed subsection includes three provisions specifying:

1. "Minimum R equirements " applicable to a CCR permit program —described as the "revised criteria" included under provision 2, except as provided in provision 3, as well as certain additional specifications for surface impoundments. 2. "R evised C riteri a" applicable to the program —lists the MSW landfill criteria, including specific location restrictions, design criteria, groundwater monitoring and corrective action requirements, closure, and post-closure for existing, new, and lateral expansions of existing, or all (new and existing), structures receiving CCRs after the date of enactment of Section 4011. 3. Program limitations —specifies that a state may determine that one or more of the requirements of the revised criteria (listed in provision 2) are not needed for CCR management in that state, and may decline to apply them as part of its CCR permit program.

Pursuant to those provisions, the minimum program specifications, including any revised criteria/MSW landfill regulations, would apply to the CCR permit program , generally as a state deems necessary. As such, those requirements are not explicitly applicable to owners and operators of CCR structures. Additionally, the program proposed under Section 4011 is not defined as one that is intended to assure facility compliance with certain standards (i.e., the revised criteria listed under the permit program specifications). Instead, it is described as being for the management and disposal of CCRs to the extent that it occurs in structures in the state. By specifying that the MSW landfill criteria would apply to a CCR permit program or that the listed criteria are "for" structures, it may be assumed that Congress intended states to apply the listed MSW criteria to owners and operators of CCR structures. The program specification's "Minimum Requirements" includes the following provision that appears intended to apply certain criteria specifically to CCR surface impoundments:

The coal combustion residuals permit program shall apply the revised criteria promulgated pursuant to section 4010(c) for location, design, groundwater monitoring, corrective action, financial assurance, closure, and post-closure described [as the Revised Criteria] in paragraph (2) and the specifications described in this paragraph to surface impoundments.

Those surface impoundment specifications that appear to be drawn in part from EPA's June 2010 proposal, would be:

Each structure shall be designed, constructed, and maintained to provide for containment of the maximum volumes of CCRs appropriate for the structure "in accordance with generally accepted engineering standards for the structural integrity of such structures." If the agency implementing the CCR permit program determines that a structure classified as "a high hazard" (pursuant to certain Federal Emergency Management Agency guidelines) is deficient with regard to its structural integrity, that agency is authorized (but not explicitly directed) to require action to correct the deficiency, according to a schedule determined by the agency, and close the structure if the deficiency is not corrected within that time frame. New structures first receiving CCRs after enactment of Section 4011 shall be constructed with a base located a minimum of 2 feet above the upper limit of the natural water table.

Still, by describing the program specification "Minimum Requirements," including those above, as specifications "for a CCR permit program," it is unclear whether states would be required to apply them to owners and operators of CCR structures. With no directive explicitly included in the proposed legislation, it cannot be assumed that states would choose to do so.

If a state did choose to apply the permit program specifications to CCR landfills and surface impoundments, the provisions included under the Minimum Requirements and Revised Criteria would be significantly different from those identified by EPA as necessary to address the risks associated with improper CCR disposal. For example, in contrast to EPA's June 2010 proposal, the CCR permit program specifications do not include requirements that owners and operators of CCR structures

construct new landfills and surface impoundments using a composite liner or retrofit existing surface impoundments with a composite liner; close structures that did not meet certain location restrictions; inspect surface impoundments weekly for structural weaknesses; or apply groundwater monitoring requirements before CCRs could be placed in a new unit and within a year of enactment for all existing CCR units.

Additionally, absent from the proposed Section 4011 are requirements comparable to those applicable to MSW landfills that would specify time frames for facility compliance. For example, compliance deadlines applicable to MSW landfill owners/operators were explicitly listed under 40 C.F.R. Part 25 (depending on various factors, but generally not later than 1994). For the CCR permit program, a state would only be required, within three years of enactment of Section 4011, to certify that it has a program in place. It does not specify a time frame for states to ensure facility compliance with the standards applicable to the permit program.

Also, if a state did choose to apply the criteria similar to those applicable to MSW landfills to CCR structures, it is uncertain to which structures states may apply those criteria. Under Section 4011, the term "structures" would be broadly defined as a "landfill, surface impoundment, or other land-based unit which may receive coal combustion residuals." The terms "landfill" and "surface impoundment" have been defined by EPA in existing regulations and specifically to CCR accumulation units in its June 2010 proposal (see " Proposed Standards Applicable to CCR Landfills and Surface Impoundments ," above). A state may incorporate details in those proposed/existing definitions. However, absent a more detailed definition in statute, it would appear that states would have discretion to define "structures" more broadly or narrowly. For example, a state may choose to define a CCR surface impoundment similarly to EPA's proposed definition, with the addition that it include units designed to hold an accumulation of a specific amount of free liquids or that a CCR landfill be one that covers a certain discrete land area. The term "other land-based unit" is not defined in RCRA or in any proposed or existing RCRA standards. Taken with the definition of the CCR permit program as one for the "management and disposal" of CCRs, it would appear that other land-based units that may receive CCRs could include land applications of the material, such as sites where it is used as structural or embankment fill or as road bed material.

Given the issues discussed above, it is unclear whether or when a state may adopt or implement a CCR permit program that would apply compliance standards to owners and operators of CCR structures. If states did, it is difficult to speculate whether states would apply standards that would vary substantially from current state practices.

To allow for a comparison of potential protection that may result if the criteria listed under the Permit Program Specifications were applied directly to owners and operators, both the Minimum Requirements and specifically identified Revised Criteria are listed in Table A -1 , a "Comparison of Waste Disposal Unit Criteria," in Appendix A . Since the Permit Program Specifications broadly apply the MSW landfill criteria to a CCR permit program, but allow states to apply them as they deem necessary, Table A -1 does not necessarily list each potentially applicable requirement included under the MSW landfill criteria. Instead, it highlights requirements that would differ substantially from the standards applicable to owners and operators of CCR landfills and surface impoundments, identified by EPA as those necessary to achieve necessary protection associated with the accumulation and disposal of CCRs.

A CCR Permit Program Compared to an MSW Permit Program

An MSW permit program, both as its purpose is delineated in statute and as it is implemented in accordance with EPA regulations, is substantially different from the CCR permit program in the proposed amendment to RCRA. Pursuant to the existing Section 4005 of RCRA, not later than 18 months after the promulgation of MSW landfill criteria, each state was required to adopt and implement "a permit program or other system or prior approval and conditions" to assure that each MSW facility in the state that may receive hazardous household waste (i.e., MSW) will comply with the criteria.

In contrast, a CCR permit program would be a program adopted by a state "for the management and disposal of coal combustion residuals to the extent such activities occur in structures in such state." Under that definition, it would appear that a state could use the program broadly, but not necessarily as a mechanism to assure facility compliance with certain standards.

Also under Section 4005 of RCRA, EPA was directed to approve state MSW permit programs. Pursuant to that directive, in 40 C.F.R. Part 239, EPA detailed (1) the required components of a state permit program application; (2) required state authorities and processes necessary to assure that the state would both implement and enforce facility compliance with the MSW landfill criteria; and (3) its responsibilities in approving a state's permit program, including conditions under which EPA approval may be withdrawn (resulting in the potential EPA enforcement of MSW landfill criteria at facilities in that state).

Within 36 months of enactment of the proposed Section 4011, pursuant to provisions applicable to "State Actions," the state agency responsible for implementing the CCR permit program would be required to certify to EPA that its program meets the Permit Program Specifications. Required elements of that certification are similar to the required components of a state MSW permit program. Beyond those requirements, the proposed Section 4011 includes few provisions comparable to the regulatory requirements in Part 239. Absent their inclusion, it would appear that directives or requirements similar to those applicable to an adequate MSW permit program would not apply to the adoption or implementation of a CCR permit program. For example, in contrast to requirements explicitly required of an EPA-approved MSW permit program, Section 4011 includes no comparable provisions that explicitly require a state to demonstrate or ensure that its CCR permit program

has authorities and procedures in place to ensure that CCR structures comply with the relevant criteria; will uniformly apply permit program conditions to all CCR structures within the state's jurisdiction; will require owners and operators of all new CCR structures to obtain a permit before the facility begins operation and operate that structure in accordance with permit conditions; or will require owners and operators of all existing CCR structures to obtain a permit and operate in accordance with permit conditions by a certain deadline.

Absent such explicit directive, a state implementing a CCR permit would not necessarily have to require owners and operators of all CCR structures to either obtain a permit or to operate its facility in accordance with specific criteria. In order to adopt or implement a CCR permit program, a state would be required to maintain a permit program approved pursuant to requirements in Part 239 or be authorized to implement hazardous waste program requirements established under Subtitle C of RCRA. As a result, a state adopting a CCR permit program would have enacted laws and implemented procedures as required under Part 239. It is unclear, however, the degree to which a state having an approved MSW permit program intended to ensure compliance with the MSW landfill regulations would amend state laws or adapt its procedures as necessary to apply those requirements to the management and disposal of CCRs in structures in that state. It is also unclear whether a state would be required to apply its permit program to all or some CCR structures in the state.

Compared to its responsibilities regarding the MSW permit program, EPA's role in state adoption and implementation of a CCR permit program would also be significantly different. For MSW landfill permit programs, EPA may approve, disapprove, or partially approve a state program pursuant to criteria it developed under Part 239. EPA's role in state adoption of the proposed CCR permit program is specified largely in provisions regarding "Written Notice and Opportunity to Remedy." In that capacity, EPA would be required to provide a state with notice and an opportunity to remedy deficiencies, if at any time the state

does not satisfy provisions applicable to State Actions with regard to its notification to EPA regarding its intent to implement a program, certification to EPA regarding its permit program, and maintenance of an approved MSW landfill permit program or an authorized hazardous waste management program; is not implementing a CCR permit program that meets the permit program specification minimum requirements (including a state's decision to not apply certain revised criteria to its permit program).

The time frame for a state to address deficiencies identified by EPA would be uncertain. If a state is notified of a deficiency, it would be required to work with EPA to establish a "reasonable deadline," but one not sooner than six months after receiving EPA's notice identifying the deficiencies. EPA would be required to implement a CCR permit program if it determines the state program has deficiencies (within the limits specified above), but only after the state fails to remedy the deficiencies by the agreed-upon deadline and any judicial review brought by the state under section 7006 of RCRA is resolved.

Beyond these criteria, EPA would not be directed to determine whether other elements of a state CCR permit program are deficient or whether state regulatory programs are adequate to minimize risks associated with improper accumulation and disposal of CCRs. In contrast, pursuant to requirements in Part 239, EPA must both approve a state's MSW permit program and could have a role in its future implementation, including the ability to withd raw its adequacy determination.

To illustrate the differences between an MSW permit program and the proposed CCR permit program, Table B -1 in Appendix B lists the required elements in Part 239 and identifies relevant requirements included or excluded in the proposed Section 4011 of RCRA.

Conclusion

Among its reasons for proposing national standards applicable to CCR accumulation and disposal facilities, EPA identified the need to ensure that both new and existing facilities would operate in a way that minimized potential contaminant leaching (primarily through the use of composite liners) and that would monitor groundwater to determine if such leaching has occurred. EPA has determined that states do not consistently require such protective measures, particularly at existing CCR surface impoundments. To address those concerns, when considering EPA's proposal under Subtitle D and legislative proposals to amend RCRA, the most relevant question may be "Would either approach change current state practices?" The answer is not clear.

Neither proposal would apply federally enforceable standards to owners and operators of CCR landfills or surface impoundments. EPA's proposal would apply national standards to those facilities, but they would not be directly enforceable by EPA. Instead, it would be up to individual states to determine the degree to which they may adopt, implement, and enforce the standards. For example, a state may choose to apply EPA's standards to new CCR disposal facilities, but not necessarily to existing facilities—those that EPA has identified as being more likely to operate without necessary protections. The legislative proposal to amend RCRA would create a CCR permit program that would give states broad discretion in determining how, when, and to which facilities they may apply new regulatory standards. In comments submitted by state agencies in the wake of EPA's June 2010 proposal, most state agency officials argued that their own regulatory programs sufficiently address CCR management. It would seem unlikely that, absent an explicit federal directive to do so, a state would choose to implement a CCR permit program that would vary significantly from its current waste management program.

Appendix A. Comparison of Existing and Proposed Disposal Facility Criteria

The first and second columns in Table A -1 list existing regulatory criteria applicable to MSW landfills in 40 C.F.R. 258 and comparable standards, proposed by EPA to be added under 40 C.F.R. Part 257, applicable to CCR landfills and surface impoundments. Listed under each column are individual requirements specifying location restrictions, operating criteria, design criteria, groundwater monitoring and corrective action, closure and post-closure care, and financial assurance. Table cells with an asterisk indicate the lack of a corresponding requirement between the two standards. 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. Broadly, 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—with regard to both the higher potential risk of a catastrophic release associated with a structural failure and contaminant leaching from those units.

The third column lists CCR Permit Program Specifications included under the "Minimum Requirements" and "Revised Criteria" that would apply to the permit program in the proposed Section 4011 of RCRA. As discussed previously, by creating a permit program, the proposed amendment to RCRA does not attempt to create standards applicable to owners and operators of CCR landfills and surface impoundments. For example, the following provision is included under the program Minimum Requirements: "The specifications described in this subsection for a coal combustion residuals permit program are as follows: (A) The revised criteria described in [proposed Section 4011(c)(2)] shall apply to a coal combustion residuals permit program ."

Further, those revised criteria/MSW landfill criteria would apply to a CCR permit program except as a state may determine that one or more are not needed for the management of CCR in that state and decline to apply it. Information included under the third column in Table A -1 is intended to identify Permit Program Specifications that, if a state chose to apply them to owner/operators of CCR structures, would be similar to or distinctly different from EPA's June 2010 proposal applicable to CCR landfills and surface impoundments.

Appendix B. An "Adequate" MSW Permit Program Compared to the Proposed CCR Permit Program

Given the discretion allowed to states to apply the proposed Section 4011 Permit Program Specifications directly to CCR structures, it is unclear whether or to what degree a state's CCR permit program would be comparable to an approved MSW permit program (as defined under current law). If a state did choose to apply those criteria to owners and operators of CCR structures, implementation of a CCR permit program would still likely be significantly different compared to an MSW permit program. State adoption and implementation of a CCR permit program would also likely differ from an MSW permit program as a result of the significantly different roles and responsibilities allowed for EPA.

Key differences between the existing MSW and proposed CCR permit programs can be seen by comparing "Requirements for State Permit Program Determination of Adequacy" to provisions applicable to a CCR permit program in the proposed Section 4011 amendment to RCRA. Table B -1 lists selected, relevant requirements in 40 C.F.R. Part 239 and comparable elements of the proposed CCR permit program. Broadly, few requirements included under Part 239 are included in the proposed Section 4011. As a result, the identification of comparable provisions that are not included among the requirements applicable to the permit program proposed in statute would likely not apply to a state's program or may be applied at its discretion.