H. Rept. 114-143 - IMPROVING COAL COMBUSTION RESIDUALS REGULATION ACT OF 2015114th Congress (2015-2016)
Committee Report
| Report Type: | House Report |
|---|---|
| Accompanies: | H.R.1734 |
| Committees: |
H. Rept. 114-143 - 114th Congress (2015-2016)
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House Report 114-143 - IMPROVING COAL COMBUSTION RESIDUALS REGULATION ACT OF 2015
[House Report 114-143]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-143
======================================================================
IMPROVING COAL COMBUSTION RESIDUALS REGULATION ACT OF 2015
_______
June 9, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1734]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 1734) to amend subtitle D of the Solid Waste
Disposal Act to encourage recovery and beneficial use of coal
combustion residuals and establish requirements for the proper
management and disposal of coal combustion residuals that are
protective of human health and the environment, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 7
Statement of General Performance Goals and Objectives............ 7
New Budget Authority, Entitlement Authority, and Tax Expenditures 7
Earmark, Limited Tax Benefits, and Limited Tariff Benefits....... 7
Committee Cost Estimate.......................................... 7
Congressional Budget Office Estimate............................. 7
Federal Mandates Statement....................................... 9
Duplication of Federal Programs.................................. 9
Disclosure of Directed Rule Makings.............................. 10
Advisory Committee Statement..................................... 10
Applicability to Legislative Branch.............................. 10
Section-by-Section Analysis of the Legislation................... 10
Changes in Existing Law Made by the Bill, as Reported............ 24
Minority, Additional, or Dissenting Views........................ 42
Purpose and Summary
The legislation is a distinct approach to establishing
permit programs under the Solid Waste Disposal Act (commonly
referred to as the Resource Conservation and Recovery Act or
RCRA). It establishes, in statute, a Federal baseline for the
regulation of coal combustion residuals in the form of minimum
requirements that all State permit programs must incorporate.
The minimum requirements in the legislation directly
incorporate and effectively codify the protective standards set
by the Environmental Protection Agency (EPA) in its final rule
for coal ash, Hazardous and Solid Waste Management System;
Disposal of Coal Combustion Residuals from Electric Utilities,
80 FR 21302 (April 17, 2015) (Final Rule). The legislation also
establishes the process and deadlines for implementation of
State permit programs.
Background and Need for Legislation
EPA Proposed Rule
On June 21, 2010, the EPA promulgated a proposed rule to
regulate coal combustion residuals (75 FR 35128) (the Proposed
Rule). In the Proposed Rule, EPA set out three regulatory
options for management of coal combustion residuals. One
proposal would have created an enforceable permit program for
coal combustion residuals under Subtitle C of RCRA. The other
two proposals would have imposed self-implementing requirements
under Subtitle D of RCRA. The Subtitle D proposal would have
required the automatic phase out of surface impoundments
regardless whether the surface impoundments were structurally
sound or resulting in a release of pollutants to the
environment. A third alternative also would regulate coal
combustion residuals under Subtitle D, but would not have
required a phase out of surface impoundments.
There was concern that EPA's proposal to regulate
combustion residuals under Subtitle C of RCRA (under which EPA
regulates hazardous waste) placed an unwarranted stigma on coal
combustion residuals, threatened their beneficial re-use, and
would have reversed prior regulatory determinations made by
EPA. Concern also was raised regarding EPA's other proposals--
specifically, that the new regulations under Subtitle D of RCRA
would lead to the closure of structurally-sound surface
impoundments not posing a pollution risk, a significant loss of
jobs, and higher energy costs.
It was clear in developing a rule for coal combustion
residuals that EPA faced a genuine dilemma: create an
enforceable permit program for coal ash under Subtitle C of
RCRA and thereby designate coal ash as a hazardous waste, or
promulgate self-implementing standards for managing coal ash
under Subtitle D and leave enforcement to citizen suits and
litigation.
Litigation
On April 5, 2012, several environmental groups filed a
lawsuit in the United States District Court for the District of
Columbia to compel EPA to issue a final rule to regulate coal
combustion residuals. Several other stakeholders also joined
the litigation, including companies that beneficially reuse
coal combustion residuals. The environmental plaintiffs
requested that the Court order EPA to complete the rulemaking
for coal combustion residuals within six months. On May 2,
2014, the United States District Court for the District of
Columbia approved a Consent Decree and a December 19, 2014
deadline for EPA to publish a final coal ash rule.
Final Rule
On December 19, 2014, EPA released a pre-publication
version of the final rule regulating coal combustion residuals
(the Final Rule). The Final Rule regulates coal ash as a non-
hazardous waste under Subtitle D of RCRA. While EPA selected
the Subtitle D regulatory option, the Agency made it clear in
the preamble to the rule that it was leaving open the option of
regulating coal ash as a special waste under Subtitle C of RCRA
and thereby reversing its prior regulatory determinations at
some point in the future.
The Final Rule is self-implementing, meaning that it does
not require issuance of permits and there will be no oversight
or enforcement by a regulatory agency. Rather, owners and
operators of facilities regulated under the Final Rule must
comply with the requirements without the interaction of a
regulatory authority by certifying compliance with the
requirements and posting the certifications on an internet
website. Also, because the Final Rule is promulgated under
Subtitle D and does not require regulated facilities to obtain
permits, does not require the States to adopt and implement the
Final Rule, and cannot be enforced by EPA the Final Rule's only
compliance mechanism is for a State or citizen group to bring a
RCRA citizen suit in Federal district court under section 7002
of that statute against any facility that is alleged to be in
noncompliance with the new requirements.
As States' permit programs do not operate in lieu of the
Final Rule, there is potential for overlapping or dual
regulatory programs. EPA is encouraging States to revise their
Solid Waste Management Plans to incorporate the Final Rule. EPA
notes in the preamble to the Final Rule that if a State revises
its Solid Waste Management Plan to incorporate the Federal
requirements, facilities in compliance with an EPA-approved
State Solid Waste Management Plan for coal ash that is
identical to or more stringent than the Final Rule should be
viewed as meeting or exceeding the Federal criteria. However,
because there is no mechanism to legally incorporate the
Federal requirements into State solid waste management
programs, even if a State adopts the Final Rule and
incorporates the criteria into the Solid Waste Management Plan,
the Final Rule remains in place as an independent set of
requirements that must be met.
It is the Committee's expectation that H.R. 1734 would
provide a legislative solution to the implementation issues
associated with the Final Rule by authorizing State permit
programs that incorporate the provisions of the Final Rule.
Hearings
On January 22, 2015, the Subcommittee on Environment and
the Economy held a hearing entitled ``EPA's 2014 Final Rule:
Disposal of Coal Combustion Residuals from Electric Utilities.
The Subcommittee received testimony from:
Mathy Stanislaus, Assistant Administrator of
the Office of Solid Waste and Emergency Response,
United States Environmental Protection Agency;
Thomas Easterly, Commissioner, Indiana
Department of Environmental Management;
Michael Forbeck, Environmental Program
Manager, Pennsylvania Department of Environment, Bureau
of Waste Management;
Lisa Johnson, Chief Executive Officer and
General Manager, Seminole Electric Cooperative, Inc.;
Thomas Adams, Executive Director, American
Coal Ash Association;
James Rower, Executive Director, Utilities
Solid Waste Activities Group;
Eric Shaeffer, Director, Environmental
Integrity Project; and,
Frank Holleman, Senior Attorney, Southern
Environmental Law Center.
On March 18 and 24, 2015, the Subcommittee on Environment
and the Economy held a hearing on a Discussion Draft entitled
``Improving Coal Combustion Residuals Regulation Act of 2015.''
The Subcommittee received testimony from:
Mathy Stanislaus, Assistant Administrator of
the Office of Solid Waste and Emergency Response,
United States Environmental Protection Agency;
David Paylor, Director, Virginia Department
of Environmental Quality;
Michael Forbeck, Environmental Program
Manager, Pennsylvania Department of Environment, Bureau
of Waste Management;
James Roewer, Executive Director, Utilities
Solid Waste Activities Group; and,
Lisa Evans, Senior Administrative Counsel,
Earthjustice.
Committee Consideration
On March 24 and 25, 2015, the Subcommittee on Environment
and the Economy met in open markup session to consider the
discussion draft entitled the ``Improving Coal Combustion
Residuals Regulation Act of 2015'' and favorably forwarded the
bill, without amendment, to the full Committee by a recorded
vote of 16 yeas and 5 nays.
On April 13, 2015, Representative David McKinley introduced
H.R. 1734, the ``Improving Coal Combustion Residuals Regulation
Act of 2015,'' which was substantially similar to the bill
forwarded by the Subcommittee.
On April 14 and 15, 2015, the Committee on Energy and
Commerce met in open markup session to consider H.R. 1734 and
favorably reported the bill, without amendment, to the House by
a recorded vote of 32 yeas and 19 nays.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
There were four record votes taken in connection with ordering
H.R. 1734 reported. A motion by the Chair to order H.R. 1734
reported to the House, without amendment, was agreed to by a
record vote of 32 yeas and 19 nays. The following reflects the
record votes taken during the Committee consideration:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held a hearing on March
18 and 24, 2015, and made findings that are reflected in this
report.
Statement of General Performance Goals and Objectives
The goal and objective of H.R. 1734 is to incorporate the
technical requirements from EPA's Final Rule for coal
combustion residuals into State-based regulatory programs under
Subtitle D of the Solid Waste Disposal Act.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
1734, would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Earmark, Limited Tax Benefits, and Limited Tariff Benefits
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI
of the Rules of the House of Representatives, the Committee
finds that H.R. 1734 contains no earmarks, limited tax
benefits, or limited tariff benefits.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 28, 2015.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1734, the
Improving Coal Combustion Residuals Regulation Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 1734--Improving Coal Combustion Residuals Regulation Act of 2015
Summary: H.R. 1734 would effectively codify a final rule
published in the Federal Register on April 17, 2014, that
establishes national management and disposal standards for coal
combustion residuals (CCR) under subtitle D of the Solid Waste
Disposal Act, also known as the Resource Conservation and
Recovery Act (RCRA). (CCR consists of inorganic residues that
remain after pulverized coal is burned.) Consistent with
subtitle D of RCRA, the rule and this legislation would allow
states to create and enforce their own CCR permit programs.
However, H.R. 1734 would enable the Environmental Protection
Agency (EPA) to directly regulate CCR in any state that fails
to set up its own CCR program or in states where EPA determines
that the CCR permit program is deficient.
CBO estimates that implementing this legislation would cost
$2 million over the 2016-2020 period, subject to the
availability of appropriated funds. Enacting H.R. 1734 would
not affect direct spending or revenues; therefore, pay-as-you-
go procedures do not apply.
H.R. 1734 would impose an intergovernmental mandate, as
defined in the Unfunded Mandates Reform Act (UMRA), because it
would require states to notify EPA about whether they will
adopt and implement a permit program for CCRs. CBO estimates
that the administrative cost of that mandate would be small and
would fall well below the annual threshold established in UMRA
for intergovernmental mandates ($77 million, adjusted annually
for inflation).
The bill contains no private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: CBO estimates
that implementing H.R. 1734 would cost EPA $2 million in 2020.
The costs of this legislation fall within budget function 300
(natural resources and environment).
Basis of estimate: For this estimate, CBO assumes that H.R.
1734 will be enacted by the beginning of fiscal year 2016 and
that the necessary amounts will be made available from
appropriated funds.
Certification of State CCR Permit Programs
Based on information from EPA and other industry experts,
CBO expects that all states with coal-tired power plants (47
states and Puerto Rico) would probably elect to operate their
own programs to manage disposal of the waste material. Under
this legislation, states would have six months after the bill's
enactment to notify ETA of their intentions to adopt and
implement their own CCR permit program; then, within three
years of the bill's enactment, the state agencies responsible
for implementing the permit programs would be required to
submit certifications of the state programs to EPA.
Because this legislation would not provide EPA with the
authority to substantially review certifications, CBO estimates
that EPA's workload for this activity would not be significant
over the 2016-2020 period.
Review of existing State CCR Permit Programs
H.R. 1734 would provide EPA with the authority to evaluate
whether a state's CCR permit program is being implemented
consistent with the minimum program specifications established
under the bill. Consequently, EPA's costs could increase
beginning in 2020--after state programs are certified and
operational--if EPA would need to review certain state programs
for deficiencies. According to EPA and other industry experts,
such reviews could be initiated by a petition for government
action from an environmental group or other interested parties.
While it is not likely that EPA would immediately review
the CCR permit programs in all states, some reviews of programs
in states with high coal consumption would probably be
initiated beginning in 2020. Based on information from EPA, CBO
estimates that reviewing a state program would cost, on
average, about $165,000 and would generally take less than one
year to complete, CBO expects that EPA would initiate reviews
of CCR permit programs in several states beginning in 2020.
Based on the cost of similar reviews, CBO estimates that work
would cost 2 million in 2020. (Additional reviews and EPA costs
could occur after 2020.)
Pay-As-You-Go considerations: None.
Estimated impact on state, local, and tribal governments:
H.R. 1734 would impose an intergovernmental mandate, as defined
in UMRA, because it would require states to notify EPA about
whether they will adopt and implement a permit program for
CCRs. CBO estimates that the cost of complying with that
mandate would be small and would fall well below the annual
threshold established in UMRA for intergovernmental mandates
($77 million, adjusted annually for inflation).
Estimated impact on the private sector: H.R. 1734 contains
no private-sector mandates as defined in UMRA.
Estimate prepared by: Federal costs: Susanne S. Mehlman;
Impact on state, local, and tribal governments: Jon Sperl;
Impact on the private sector: Amy Petz.
Estimate approved by: Theresa Gallo, Assistant Director for
Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Duplication of Federal Programs
No provision of H.R. 1734 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting H.R. 1734
specifically directs to be completed no rule makings within the
meaning of 5 U.S.C. 551.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title and table of contents
This section entitles the Act the ``Improving Coal
Combustion Residuals Regulation Act of 2015'' and identifies
the sections of the bill as follows: Section 1, Short Title and
Table of Contents; Section 2, Management and Disposal of Coal
Combustion Residuals; Section 3, 2000 Regulatory Determination;
Section 4, Technical Assistance; and Section 5, Federal Power
Act.
Section 2. Management and disposal of coal combustion residuals
Section 2 amends Subtitle D of the Solid Waste Disposal Act
(42 U.S.C. 6941 et seq.) by adding a new section, section 4011,
Management and Disposal of Coal Combustion Residuals.
Subsection (a) of new section 4011 permits States to choose
whether to adopt and implement a coal combustion residuals
permit program. The Committee expects that such a permit
program will be adopted and implemented in every State that
generates, stores, disposes of, or uses coal ash. The Committee
believes that States are best situated to create a permit
program, and the Committee intends to provide States
flexibility regarding their individual permit programs while
ensuring that States have the necessary authorities and
procedures, including staffing and technical capabilities, to
allow them to implement a permit program that meets the minimum
requirements set out in this bill.
Subsection (b) of new section 4011 sets out certain
requirements a State must comply with to adopt and implement a
permit program. Paragraph (b)(1) requires a State that intends
to adopt and implement a coal combustion residuals permit
program to notify the Administrator of the EPA that it intends
to do so within six months of enactment.
Paragraph (b)(2) of new section 4011 requires States that
intend to adopt and implement a permit program to certify to
EPA, within twenty-four months of enactment, that the permit
program meets the specifications set out in this section. A
State may request from EPA a twelve month extension of the
deadline to certify a permit program. In order to receive an
extension, a State must describe the efforts to meet the
original deadline, demonstrate that the legislative or
rulemaking procedures of the State are such that the State
cannot meet the original deadline, and provide a detailed
schedule for completion and submission of the certification.
The certification must identify the lead State agency
responsible for implementing the permit program and any other
State agencies involved. The certification also must contain an
explanation of how the State permit program will meet the
minimum requirements and descriptions of the State's process to
inspect and enforce the permit program, of the public
participation process for promulgation of regulations and
issuance of permits, and of the State statutes, regulations, or
policies regarding public access to information--including
information on groundwater monitoring data, structural
stability assessments, emergency action plans, fugitive dust
control plans, notifications of closure, and corrective action
remedies. States must also identify any changes made to the
definitions under section 257.53 of title 40, Code of Federal
Regulations. Paragraph (b)(2) also requires States that intend
to implement a permit program to provide a statement that it
has fully effective statutes or regulations necessary to carry
out the permit program, copies relevant statutes and
regulations, a plan for response to a release from a structure
or inactive surface impoundment that has the potential for
impact beyond the property boundary, and a plan for
coordination among States in the event of a release that
crosses State lines. States may update a certification as
necessary to reflect changes to the permit program.
Paragraph (b)(3) of new section 4011 provides that in order
to adopt or implement a permit program the State must maintain
an approved program for municipal solid waste under section
4005(c) or an authorized hazardous waste program under section
3006 of the Solid Waste Disposal Act. It is the view of the
Committee that States with an approved program under section
4005(c) or an authorized program under section 3006 of the
Solid Waste Disposal Act already have adequately demonstrated
to the Administrator that they are capable of administering
such permit programs and that EPA approval prior to the start
of implementation is not necessary. Upon submission of its
certification, the Committee intends that a State immediately
may commence or continue the implementation of a permit
program. States that already are implementing a permit program
may continue to operate the program while the State completes
the certification process.
Subsection (c) of new section 4011 directly incorporates
the requirements of the Final Rule and lays out the
requirements for a coal combustion residuals permit program.
The Committee intends that the requirements in subsection (c)
are minimum national criteria to ensure protection of human
health and the environment and they comprise a Federal standard
of protection for the regulation of coal combustion residuals.
The Committee believes that permit programs that incorporate
the minimum requirements in the bill will be protective of
human health and the environment.
Paragraph (c)(1)(A) of new section 4011 provides that the
implementing agency must require owners and operators of
structures to apply for and obtain a permit incorporating the
applicable requirements of the coal combustion residuals permit
program.
Subparagraph (c)(1)(B) of new section 4011 requires the
implementing agency to make certain information available to
the public, including (i) documents for permit determinations,
which must also be made available for public review and
comment; (ii) final determinations on permit applications;
(iii) information on groundwater monitoring data, structural
stability assessments, emergency action plans, fugitive dust
control plans, notifications of closure (including any
certification of closure by a qualified professional engineer),
and corrective action remedies (which must be made available on
the internet); and (iv) information regarding the exercise by
the implementing agency of any discretionary authority granted
by the legislation.
The Committee acknowledges that the Final Rule at 40 CFR
257.107 contains a requirement that owners or operators of a
coal combustion disposal unit post compliance information on a
publicly available website. The Committee recognizes that
States typically make compliance information available to the
public and that many States already post such information on
the Internet. The legislation requires the implementing agency
to ensure that such information is made publicly available on
an Internet website, and the Committee believes that this
requirement results in transparency equivalent to that of the
requirement in the Final Rule.
Subparagraph (c)(1)(C) of new section 4011 provides the
implementing agency with certain authority, including a
requirement that the implementing agency enter any site or
premise at which a structure or inactive surface impoundment is
located in order to obtain necessary information and conduct
monitoring or testing to ensure that structures are in
compliance with the requirements of a permit program.
Subparagraph (c)(1)(C) also provides that if monitoring or
testing is conducted by or for the implementing agency that the
implementing agency shall, if requested by an owner or
operator, provide a written description of the monitoring or
testing completed, a portion of the sample equal in volume or
weight to the portion retained by the implementing agency, and
a copy of the results of any analysis of samples.
Paragraph (c)(2) of new section 4011 specifies the criteria
that must be applied to structures by all coal combustion
residuals permit programs. The criteria directly incorporate
the requirements established by EPA in the Final Rule. The
Committee intends that all permit programs will incorporate the
minimum requirements and the Committee believes that by
directly incorporating the standards in the Final Rule, which
were promulgated by EPA to protect human health and the
environment, the minimum requirements set out in the
legislation fully protect human health and the environment.
Subparagraph (c)(2)(A) of new section 4011 directly
incorporates and requires a permit program to include, at a
minimum, the design requirements from the Final Rule at 40 CFR
257.70 and 257.72.
Subparagraph (c)(2)(B)(i) of new section 4011 incorporates
and requires a permit program to include, at a minimum, the
criteria for groundwater monitoring and corrective action from
the Final Rule at 40 CFR 257.90 through 257.98, including for
purposes of detection monitoring (the constituents described in
appendix III to 40 CFR part 257) and assessment monitoring,
establishing a groundwater protection standard, and assessment
of corrective measures (the constituents described in appendix
IV to 40 CFR part 257). Subparagraph (c)(2)(B)(ii) of new
section 4011 provides certain discretionary authority for the
implementing agency of a coal combustion residuals permit
program, including the authority to (I) establish an
alternative point of compliance for the down-gradient
monitoring system as described in 40 CFR 257.51(a)(2); (II)
establish alternative groundwater protection standards as
provided in 40 CFR 258.55(j); (III) determine that corrective
action is not necessary or technically feasible as provided in
40 CFR 258.57(e); (IV) allow remediation in accordance with
other applicable Federal or State requirements for releases
other than releases to groundwater if compliance with such
requirements will result in the same level of protection as
described in 40 CFR 257.96 through 257.98; (V) authorize
alternative groundwater monitoring and corrective action
requirements, provided that such requirements are no less
stringent than the alternative requirements authorized to be
established under subpart E of 40 CFR part 258; and (VI) allow
the owner or operator of an existing unlined surface
impoundment to continue to operate for eight years after the
date of enactment only if the unlined surface impoundment
undertakes corrective action under 40 CFR 257.96 through 257.98
and meets the applicable groundwater protection standard and
any other applicable requirements established pursuant to this
section.
The Committee intends that the groundwater monitoring and
corrective action provisions of the Final Rule are the baseline
for coal combustion residuals permit programs. However, the
Committee recognizes that the Final Rule was drafted to be
self-implementing and with that comes certain limitations. The
Committee notes that in the preamble to the Final Rule, EPA
identified several instances in the Final Rule where the Agency
indicated that it would have written the rule differently and
would have incorporated certain flexibility if the rule was to
be implemented with regulatory oversight; including,
establishing an alternative groundwater protection standard, an
alternative point of compliance, and determining that
remediation of a release is not necessary. The Committee also
believes that, because the additional authority and exceptions
to the groundwater monitoring and corrective action
requirements of the Final Rule are discretionary and the
implementing agency may analyze the site-specific conditions
and decide that deviating from the requirements in the Final
Rule is not appropriate, the exceptions and additional
authority are fully protective of human health and the
environment and facilitate effective implementation of the
protections in the Final Rule.
With respect to releases other than releases to
groundwater, the Committee intends that all releases will be
addressed by the implementing agency, but notes that certain
releases other than releases to groundwater may be more
efficiently addressed through other applicable provisions of
Federal or State law. The Committee believes that it is
appropriate for the implementing agency to require remediation
of the release under the other applicable authority so long as
the remediation will result in the same level of protection as
remediation under the corrective action provisions of the Final
Rule at 40 CFR 257.96 through 257.98.
Subparagraph (c)(2)(C) of new section 4011 directly
incorporates and requires a permit program to include at a
minimum, the closure requirements from the Final Rule at 40 CFR
257.101, 257.102, and 257.103 with two exceptions. The closure
criteria in 40 CFR 257.101(a)(1) apply to an existing structure
that is an unlined surface impoundment only if the impoundment
does not meet the applicable groundwater protection standard or
any other applicable requirement and the closure criteria in 40
CFR 257.101(b)(1) do not apply to existing structures that fail
to meet certain location restrictions.
The Committee intends that the closure requirements in the
Final Rule are the default. However, the Committee believes
that providing the implementing agency with discretionary
authority to allow unlined surface impoundments a limited
opportunity to implement corrective action rather than stop
receiving coal combustion residuals within six months of
exceeding a groundwater protection standard affords needed
flexibility to States that would otherwise not be available
without this legislation.
Subparagraph (c)(2)(D) of new section 4011 directly
incorporates and requires a permit program to include at a
minimum, the post-closure care requirements from the Final Rule
at 40 CFR 257.104.
Subparagraph (c)(2)(E) of new section 4011 requires a
permit program to have location restrictions appropriate to the
type of structure. The Committee recognizes that new structures
and lateral expansions of existing structures require different
siting restrictions from those applicable for existing
structures. New structures and lateral expansions of existing
structures must comply with the location restrictions from the
Final Rule at 40 CFR 257.60 through 255.64 and 257.3-1.
Permitting of existing structures need only include the
location restrictions in 40 CFR 257.64 and 257.3-1.
The Committee believes that retroactive application of all
of the location restrictions in the Final Rule is not necessary
because the implementing agency will analyze all structures and
determine whether they can operate safely. Furthermore, the
Committee believes that coal combustion residuals permit
programs will ensure that structures that pose a risk will be
corrected to eliminate the risk or that they will be closed.
Subparagraph (c)(2)(F) of new section 4011 directly
incorporates and requires a permit program to include at a
minimum, the criteria for air quality from the Final Rule at 40
CFR 257.80.
Subparagraph (c))(2)(G) of new section 4011 requires a
permit program to include the financial assurance requirements
in 40 CFR 258 subpart G.
Subparagraph (c)(2)(H) of new section 4011 requires a
permit program to include the surface water requirements in
section 40 CFR 257.3-3.
Subparagraph (c)(2)(I) of new section 4011 directly
incorporates and requires a permit program to include at a
minimum, the recordkeeping requirements in section 40 CFR
257.105.
Subparagraph (c)(2)(J) of new section 4011 directly
incorporates and requires a permit program to include, at a
minimum, the criteria for run-on and run-off control from the
Final Rule at 40 CFR 257.81 for landfills, sand, or gravel
pits, or quarries.
Subparagraph (c)(2)(K) of new section 4011 directly
incorporates and requires a permit program to include at a
minimum, the criteria for hydrologic and hydraulic capacity
requirements from the Final Rule at 40 CFR 257.82 for surface
impoundments.
Subparagraph (c)(2)(L) of new section 4011 directly
incorporates and requires a permit program to include at a
minimum the criteria for structural integrity from the Final
Rule at 40 CFR 257.73 and 257.74 with the exception that the
implementing agency has the discretion to allow surface
impoundments that miss the deadline to complete a safety factor
assessment to have up to thirty days to complete the
assessment. If a structure fails to meet the safety factor
assessment criteria during the initial assessment, the
implementing agency also has the discretion to provide up to
twelve months for an owner or operator to meet the safety
factor assessment criteria provided in 40 CFR 257.73(e)(1), but
only if the structure does not pose an immediate threat of
release.
Subparagraph (c)(2)(M) of new section 4011 directly
incorporates and requires a permit program to include, at a
minimum, the criteria for inspections from the Final Rule at 40
CFR 257.83 and 257.84.
Paragraph (c)(3)(A) of new section 4011 sets a schedule for
permit program implementation for structures that receive CCR
on or after the date of enactment. Not later than when a State
submits its permit program certification to the Administrator,
eighteen months after a State notifies the Administrator of EPA
that it does not intend to develop a CCR permit program, or
twenty-four months after the date of enactment in a case where
the Administrator is implementing a permit program under
subsection (e)(3), the implementing agency must notify owners
of structures of the obligation to obtain a permit and of the
requirements in subparagraph (c)(3)(B)(ii) that the owners or
operators will be required to comply with during the period of
interim operation.
Subparagraph (c)(3)(B) of new section 4011 establishes a
schedule by which owners or operators of structures must comply
with certain requirements. Not later than eight months after
the date of enactment, the implementing agency must require
owner and operators of existing structures to install a
permanent marker as described in subparagraph (c)(2)(L) and to
comply with the requirements for air in subparagraph (c)(2)(F),
surface water in subparagraph (c)(2)(H), record keeping in
subparagraph (c)(2)(I), and inspections in subparagraph
(c)(2)(M). Compliance with certain other requirements must
begin no later than twelve months after a state submits its
certification, thirty months after the Administrator receives
notice that a State will not operate its own permit program, or
thirty-six months after enactment for a program to be
implemented by the Administrator under (e)(3). These
requirements include the criteria for groundwater monitoring
and corrective action in subparagraph (c)(2)(B), financial
assurance in subparagraph (c)(2)(G), run-on and run-off
controls in subparagraph (c)(2)(J), hydrologic and hydraulic
capacity in subparagraph (c)(2)(K), and structural integrity in
subparagraph (c)(2)(L). The Committee intends that no later
than three years after the date of enactment, owners or
operators of structures will comply with the specified
requirements.
It is the intent of the Committee that the time frames for
compliance with the requirements of the Final Rule match as
closely as possible the time frames for compliance under the
legislation.
Subparagraph (c)(3)(C) of new section 4011 provides that
the implementing agency must issue a permit or deny an
application within forty-eight months after the State submits
its certification, sixty-six months after the Administrator
receives notice from a State that it does not intend to operate
its own permit program, or seventy-two months after enactment
for programs implemented by the Administrator. The implementing
agency must collaborate with the structure's owner or operator
to identify a deadline by which a permit application must be
submitted. The Committee intends that permits will be issued
within six years from the date of enactment.
Subparagraph (c)(3)(D) of new section 4011 provides that,
unless required by the implementing agency to close, existing
structures may continue to operate under existing authority
between the date of enactment and the deadlines by which they
must comply with the requirements in subparagraph (c)(3)(B). If
the owner or operator of an existing structure meets the
interim requirements described in subparagraph (c)(3)(B), so
long as the implementing agency does not require the structure
to close, the structure may continue to operate until the final
permit is issued under subparagraph (c)(3)(C). The purpose of
this provision is to ensure that owners or operators of
existing structures may continue to operate from the date of
enactment through the interim periods of operation so long as
they comply with the applicable requirements.
Paragraph (c)(4) of new section 4011 establishes
requirements for inactive coal combustion residuals surface
impoundments. The Committee intends that the requirements for
inactive surface impoundments be substantially the same as the
requirements under the Final Rule.
Subparagraph (c)(4)(A) of new section 4011 provides that
within two months from the date of enactment, the owners or
operators of inactive coal combustion residuals surface
impoundments must submit to EPA and the State in which the
impoundment is located, a notice stating whether the
impoundment will close within three years of the date of
enactment or whether the impoundment will comply with the
requirements for a structure under a coal combustion residuals
permit program.
Subparagraph (c)(4)(B) of new section 4011 provides
discretion for the implementing agency to grant an extension of
the closure deadline by no more than two years for an inactive
surface impoundment that is undergoing closure, but only if the
owner or operator of the impoundment demonstrates to the
satisfaction of the implementing agency that the inactive coal
combustion residuals surface impoundment does not pose an
immediate threat of release and that it is not feasible to
complete closure in accordance with the deadline in 40 CFR
257.100 due to complications stemming from climate or weather,
because additional time is required to remove the liquid from
the surface impoundment due to the volume of coal combustion
residuals or the characteristics of the coal combustion
residuals in the impoundment, because the geology and terrain
surrounding the inactive impoundment will affect the amount of
material needed to close the inactive impoundment, or because
additional time is required to coordinate with and obtain
necessary approvals and permits.
The Committee acknowledges that sometimes, due to the size
or location of an inactive surface impoundment, that it is not
possible to safely close the impoundment within three years, an
extension of the closure deadline may be necessary. The
Committee, however, intends that the implementing agency only
exercise its discretion and authorize an extension if there is
no immediate threat of a release from the inactive surface
impoundment. The Committee also notes that the factors for
demonstrating the need for an extension are those identified by
EPA in the Final Rule at 40 CFR 257.102(f)(2)(i) as appropriate
for an extension of the closure deadlines for active disposal
units.
Subparagraph (c)(4)(C) of new section 4011 provides that
the implementing agency must require the owner or operator of a
closed inactive surface impoundment to perform post-closure
care and maintain financial assurance for the post-closure
care.
Subparagraph (c)(4)(D) of new section 4011 provides that an
inactive coal combustion residuals surface impoundment must be
treated as an existing structure and must comply with all of
the requirements in paragraphs (c)(1) and (c)(2) if the owner
or operator does not submit a notice regarding whether it will
undergo closure to EPA and the State in which the impoundment
is located or if the owner or operator indicates that the
surface impoundment will continue to operate. Subparagraph
(c)(4)(D) also provides that an inactive surface impoundment
that fails to close by the applicable deadline must be treated
as an existing structure and must comply with all of the
requirements in paragraphs (c)(1) and (c)(2).
The Committee intends that an inactive impoundment that
does not close within three years (or five years if the
implementing agency exercises its discretion to allow for up to
two additional years for closure) from the date of enactment
must comply with all of the same requirements as an active
structure, including groundwater monitoring. The Final Rule
contains a similar requirement.
Subsection (d) of new section 4011 provides for Federal
review of State permit programs and requires the Administrator
to provide written notice to a State that fails to take certain
actions and allows a State that receives written notice from
the Administrator an opportunity to remedy any deficiency
identified. The Administrator's notice requirement is triggered
if a State fails to (A) notify the Administrator regarding
whether it intends to adopt and implement a permit program
within six months of the date of enactment; (B) submit a
certification that its permit program meets the minimum
specifications within thirty-six months of the date of
enactment; (C) maintain either an approved Municipal Solid
Waste permit program under section 4005(c) of the Solid Waste
Disposal Act or a hazardous waste permit program under section
3006 of the Solid Waste Disposal Act; (D) implement a permit
program that meets the specifications in (c); (E) implement a
permit program that is consistent with the certification under
(b)(2) and for which the State continues to have in effect the
statutes or regulations necessary to implement such permit
program; or (F) if a State fails, upon written request from the
Administrator, to make available information regarding whether
the State has complied with the requirements in subparagraphs
(A) through (E). The information must be made available within
ninety days of the Administrator's written request. The
information request may be made only if the Administrator does
not possess the information requested at the time of the
request.
Paragraph (d)(3) of new section 4011 details the contents
of a written notice provided by the Administrator to a State
that fails to take actions identified in paragraph (d)(1). The
Committee intends that the Administrator include in the written
notice the Agency's findings regarding whether a State failed
to comply with the requirements in subparagraphs (A) through
(F). This paragraph also requires the Administrator to
collaborate with a State that receives a written notice to set
a reasonable deadline for the State to remedy any deficiencies
identified by the Administrator in the notice. The deadline may
not be sooner than six months from the date that the State
receives the written notice, except for a deficiency under
subparagraph (F) for which the deadline may not be later than
ninety days.
Paragraph (d)(4) of new section 4011 sets out deficiency
criteria with which the Administrator can determine if a State
permit program does not meet the requirements of paragraphs (A)
through (E) of paragraph (d)(1), or to implement a program for
a State under subsection (e). These criteria include whether a
State's statutes or regulations are not sufficient to meet the
minimum requirements in subsection (c); whether a State has
failed to promulgate or enact necessary new statutes or
regulations; whether actions by a State legislature or court
limit such State statutes or regulations; whether a State
permit program fails to issue permits required in (c)(1) or
repeatedly issues permits which do not meet the requirements in
subsection (c); whether a State fails to comply with public
participation requirements of this section; whether a State
fails to implement corrective action requirements; or whether
enforcement of a State permit does not comply with new Section
4011 because of failure to act on violations or failure to
inspect. The Committee believes that the specific objective
criteria listed in subparagraph (d)(4) provide the necessary
parameters for EPA to determine whether a State permit program
is deficient.
Subsection (e) of new section 4011 provides that the
Administrator must implement and administer a permit program
for a State only if (1) the Governor of a State notifies the
Administrator that the State will not adopt and implement its
own permit program; (2) the State receives a notice of
deficiency under subsection (d) and, after completion of public
notice and comment, fails to remedy the deficiency by the date
agreed upon by the State and the Administrator; or (3) a State
informs the Administrator that such State no longer wishes to
implement a permit program. A State may obtain review of this
determination by the Administrator as if the determination was
a final regulation under section 7006 of the Solid Waste
Disposal Act. The Committee intends that Administrator's
authority under subsection (d) to assess--at any time--whether
a State permit program is deficient combined with the authority
of the Administrator under subsection (e) to assume
implementation of a deficient permit program, provides a legal
backstop for State permit programs.
Paragraph (e)(3) provides that the Administrator must
implement a permit program for structures within a State, but
the State does not have authority to regulate. The Committee
intends that this provision only allow the Administrator to
regulate structures on property governed by an Indian tribe.
Subsection (e) further requires that, in circumstances
where the Administrator implements a permit program for a State
under subsection (e), such a permit program be confined to the
program specifications set forth in subsection (c) and
specifically does not authorize a program implemented by the
Administrator to include requirements not specifically
identified in subsection (c).
Paragraph (e)(5) provides that, when implementing a permit
program under subsection (e), the Administrator may inspect,
gather information, and enforce requirements of this Act using
the inspection and enforcement authorities referred to in
4005(c)(2)(A) of the Solid Waste Disposal Act, which references
sections 3007 and 3008 of the Solid Waste Disposal Act. Absent
an imminent hazard addressed by EPA under section 7003 of the
Solid Waste Disposal Act, nothing in new section 4011 grants
EPA inspection and enforcement authority in States whose permit
programs have not been assumed by the Administrator pursuant to
the provisions of subsection (e).
Paragraph (e)(6) provides that if implementing a coal
combustion residuals permit program for a State under
subsection (e), the Administrator must provide a thirty day
period for the public participation required under
(c)(1)(B)(i).
Subsection (f) of new section 4011 sets out the procedural
requirements States must follow to regain control of their
permit program. Subparagraph (1)(A) provides that if EPA is
implementing a permit program because the State notified the
Administrator that it had chosen not to do so, a State may
resume control of its permit program by notifying the
Administrator that it will adopt and implement a permit
program. Within six months of notification, the State must
certify to EPA, pursuant to the requirements provided in
subsection (b)(2), that its program meets the minimum
specifications for a permit program. Before a State may resume
authority for implementation, it must receive from the
Administrator (1) a determination, after notice and a thirty
day period for public comment, that the State's permit program
meets the minimum program specifications described in
subsection (c) and (2) a timeline for transition of control of
the permit program from the Administrator to the State agency
responsible for implementing the State's permit program.
Subparagraph (f)(1)(B) provides that, if the Administrator
is implementing a permit program because a State failed to
remedy an identified deficiency, a State may take back control
of its permit program by (1) correcting only the deficiencies
identified by the Administrator in the initial notice under
subsection (d) and (2) receiving a determination from the
Administrator, after notice and a thirty day period for public
comment, that the State has adequately remedied any
deficiencies in the permit program and a timeline for
transition of control of the permit program from the
Administrator to the State official responsible for operating
the State's permit program.
Subparagraph (f)(2)(A) provides that if a State begins the
process of taking control of a permit program from the
Administrator by submitting a certification, or notifies the
Administrator that it has corrected any identified deficiencies
with its permit program, the Administrator, within ninety days
of the date on which a State initiates the process of taking
back its permit program, is required to make a determination as
to whether the State has met applicable statutory criteria.
Subparagraph (f)(2)(B) allows a State to obtain a review of
the Administrator's determination of whether a State may take
over implementation of its permit program as if such
determination was a final regulation subject to judicial review
under section 7006 of the Solid Waste Disposal Act.
Subsection (g) of new section 4011 describes the transition
of control of a permit program between a State and the
Administrator. Subparagraph (g)(1)(A) provides that actions
taken and orders issued remain in effect if a State takes
control of its permit program from the Administrator or if the
Administrator takes control of a permit program from the State.
This provision was included to prevent a gap in regulation.
Control would remain with the entity transferring the permit
program until the entity assuming the program is able to
implement fully the permit program. Paragraph (g)(2) requires
existing actions, orders, or permits issued pursuant to a
permit program to remain in effect until the entity assuming
control of the permit program changes the requirements of the
permit program with respect to the basis for the action or
order; or certifies the completion of a corrective action that
is the subject of the action or order.
Paragraph (g)(3) requires that there be only one permit
program pursuant to new section 4011 in each State at any given
time and requires that if a State regains control of a permit
program from the Administrator, the Administrator cease to
implement its permit program, and if the Administrator
implements a permit program for a State under subsection
(e)(1), the State shall cease to implement its permit program.
Subsection (h) of new section 4011 prohibits the
Administrator from considering the implementation of a permit
program in making a determination under section 4005(c) or 3006
of this title. The Committee intends that if the Administrator
is implementing a permit program under subsection (e) of new
section 4011 in a State, the Administrator may not use that
fact against a State in approving or withdrawing approval for a
Municipal Solid Waste permit program under section 4005(c) of
the Solid Waste Disposal Act or issuing or withdrawing
authorization under section 3006 of the Solid Waste Disposal
Act for a hazardous waste program.
Paragraph (i)(1) of new section 4011 provides that nothing
in new section 4011 of the Solid Waste Disposal Act precludes
or denies any right of any State to adopt or enforce any
regulation or requirement, respecting coal combustion
residuals, that is more stringent or broader in scope than a
regulation or requirement required under new section 4011 of
the Solid Waste Disposal Act. This provision is consistent with
other subtitles of the Solid Waste Disposal Act that allow
States to be more stringent than the Federal baseline
established by this legislation.
Paragraph (i)(2) requires that, with respect to the
regulation of coal combustion residuals, the Administrator
defer regulation to the States unless the Administrator makes a
deficiency finding under subsection (d), is regulating coal
combustion residuals in a State pursuant to a program
authorized under subsection (e), or as part of the
Administrator's authorities regarding Federally-funded projects
involving procurement of cement or concrete under section 6005
of the Solid Waste Disposal Act.
Subparagraph (i)(2)(B) clarifies that nothing in H.R. 1734
affects the authority of the Administrator under section 7003
of the Solid Waste Disposal Act to address imminent and
substantial endangerments to health or the environment with
respect to the disposal of coal combustion residuals.
Subparagraph (i)(2)(C) allows the Administrator to provide
enforcement assistance when requested by a State, but only the
specific assistance requested by the State.
Subparagraph (i)(2)(D) provides that unless a State
requests enforcement assistance, if a State is implementing a
permit program, the Administrator would have no concurrent
enforcement authority, including during the period of interim
operation described in subsection (c)(3)(D).
Paragraph (i)(3) clarifies that this legislation does not
affect the authority of a person to commence an action under
section 7002 of the Solid Waste Disposal Act. The Committee
intends for H.R. 1734 to address the fact that the Final Rule
is enforceable only through citizen suits. However, the
Committee does not intend to interfere with the ability of any
person to bring a citizen suit under the Solid Waste Disposal
Act.
Subsection (j) of new section 4011 provides that a permit
program implemented by the Administrator under subsection (e)
not apply to the utilization, placement, and storage of coal
combustion residuals at surface or underground mining and
reclamation operations. The Department of the Interior, Office
of Surface Mining Reclamation and Enforcement under the Surface
Mining Control and Reclamation Act (SMCRA) (30 U.S.C. 1234 et.
seq.) governs the utilization, placement, and storage of coal
combustion residuals at surface mining and reclamation
operations. In addition, several States utilize their solid
waste laws and regulations to govern the utilization,
placement, and storage of coal combustion residuals at surface
mining and reclamation operations and this Title does not
affect such State authorities.
Subsection (k) of new section 4011 addresses the beneficial
use of coal combustion residuals. Subparagraph (k)(1)(A)
provides that engineered structural fill that is constructed in
accordance with ASTM E2277 the ``Standard Guide for Design and
Construction of Coal Ash Structural Fills,'' any other
published national standard determined appropriate by the
implementing agency, or a State standard or program related to
fill materials or the management of coal combustion residuals
for beneficial use is not considered receipt of coal combustion
residuals. Subparagraph (k)(1)(B) provides that engineered
structural fill for a building site or foundation; a base or
embankment for a bridge, roadway, runway, or railroad; or a
dike, levee, berm, or dam that is not part of a structure also
is not considered receipt of coal combustion residuals.
Paragraph (k)(2) provides that storage in a manner that is
consistent with the management of raw materials if the coal
combustion residuals being stored are intended to be used in a
product or as a raw material is not considered receipt of coal
combustion residuals. Paragraph (k)(3) defines beneficial use
using the definition in the Final Rule and provides that
beneficial use (A) provides a functional benefit; (B) is a
substitute for the use of a virgin material; (C) meets relevant
product specifications and regulatory or design standards; and
(D) if the use involves placement on the land or coal
combustion residuals in non-roadway applications in an amount
equal to or greater than the amount described in the Final Rule
at 40 CFR 257.53, the person using the coal combustion
residuals must demonstrate and keep records showing that such
use does not result in environmental releases to groundwater,
surface water, soil, or air that are greater than those from a
material or product that would be used instead of the coal
combustion residuals or exceed the relevant regulatory and
health-based benchmarks for human and ecological receptors.
Subsection (l) of new section 4011 describes the legal
effect of the Final Rule. The Committee intends that the Final
Rule be implemented through enforceable permit programs
established under this section. Paragraph (l)(1) provides that
the rule may only be implemented through a permit program under
this section and that to the extent that any provision of the
Final Rule conflicts with or is inconsistent with a provision
or requirement of this section, this section will control.
Because the Final Rule had not yet been published in the
Federal Register as of the date the Committee met in an open
markup session (although it has since published on April 17,
2015), paragraph (l)(2) provides that all references to the
Code of Federal Regulations refer to the provisions of the
prepublication version of the Final Rule signed by the
Administrator on December 19, 2014. Paragraph (l)(3) provides
that references to the effective date identified in the Final
Rule at 40 CFR 257.51 shall refer to the date of enactment of
this section, except that, in the case of any deadline
established by such a reference that is in conflict with a
deadline established by this section, the deadline established
in this section shall control. Paragraph (l)(4) provides that
40 CFR 257.52 is not affected by this section. Paragraph (l)(5)
provides that the definitions in the Final Rule at 40 CFR
257.53 shall apply unless they are in conflict or are
inconsistent with this section or unless the lead State
implementing agency identifies a change in the definitions in
the certification and provides a reasonable basis for the
changes. The Committee intends that the definitions in the
Final Rule be incorporated into coal combustion residuals
permit programs unless the State can provide a reasonable basis
for making a change in the definitions. Paragraph (l)(6)
provides that the criteria described in 40 CFR 257.106 and
257.107 may be incorporated into a coal combustion residuals
permit program at the discretion of the implementing agency.
Subsection (m) of new section 4011 includes the following
definitions.
Paragraph (m)(1) ``Coal combustion residuals'' includes
those solid wastes identified in Section 3001(b)(3)(A)(i) of
the Solid Waste Disposal Act, including recoverable materials
from such wastes. Section 3001(b)(3)(A)(I) defines these wastes
to be fly ash waste, bottom ash waste, slag waste, and flue gas
emissions control waste generated primarily from the combustion
of coal or other fossil fuels. The Committee intends that
permit programs created pursuant to new section 4011 regulate
ash waste generated primarily from the combustion of coal.
``Coal combustion residuals'' also includes other non-hazardous
wastes: (1) coal combustion waste when co-managed with certain
other 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
of in the structure; (2) fluidized bed combustion wastes; (3)
wastes from co-burning coal with non-hazardous secondary
materials provided that coal makes up at least fifty percent of
the total fuel burned; and (4) wastes that are recovered from
monofills, which consist of wastes from co-burning coal with
fly ash waste, bottom ash waste, slag waste, and flue gas
emissions control waste generated primarily from the combustion
of coal or other fossil fuels.
Paragraph (m)(2) ``Coal combustion residuals permit
program'' means 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 coal combustion residuals or, as
conditioned in this Title by the Administrator, for a State.
Paragraph (m)(3) ``Electric Utility; Independent Power
Producer'' includes only electric utilities and independent
power producers that produce electricity on or after the date
of enactment of this section.
Paragraph (m)(4) ``Existing Structure'' means a structure
the construction of which commenced before the date of
enactment of this section.
Paragraph (m)(5) ``Implementing agency'' means the lead
State implementing agency in clause (b)(2)(B)(i) or the
Administrator acting pursuant to subsection (e).
Paragraph (m)(5) ``Permit; prior approval and conditions''
means any authorization, license, or equivalent control
document that incorporates the requirements and revised
criteria in subsection (c).
Paragraph (m)(6) ``Inactive Coal Combustion Residuals
Surface Impoundment'' means a surface impoundment located at an
electric utility or independent power producer, that, as of the
date of enactment of this section does not receive coal
combustion residuals, contains coal combustion residuals, and
contains liquid.
Paragraph (m)(7) ``Structure'' includes landfills, surface
impoundments, and sand or gravel pit, or quarry that receives
coal combustion residuals. The term structure does not include
solid waste municipal landfills because they were not included
under the Final Rule. Structure does not include any land-based
unit that receives only de minimis quantities of coal
combustion residuals if the presence of coal combustion
residuals is incidental to the material managed in the unit.
The Committee does not intend ``structure'' to include land-
based units at coal-fired electric power plants--such as
cooling water, polishing, or storm water ponds--which receive
small or incidental amounts of, and are not intended to serve
as disposal structures for, coal combustion residuals.
Paragraph (m)(8) ``Unlined Surface Impoundment'' means a
surface impoundment that does not have a liner system described
in 40 CFR 257,71.
Section 3. 2000 Regulatory determination
This section provides that nothing in this Title be
construed to alter EPA's regulatory determination entitled
``Notice of Regulatory Determination on Wastes from the
Combustion of Fossil Fuels,'' published at 65 Fed. Reg. 32214
(May 22, 2000).
Section 4. Technical assistance
This section provides that nothing in this Title be
construed to affect the authority of a State to request, or the
Administrator to provide, technical assistance under the Solid
Waste Disposal Act (42 U.S.C. 6901 et seq.).
Section 5. Federal Power Act
This section provides that nothing in this Title be
construed to affect the obligations of the owner or operator of
a structure under section 215(b)(1) of the Federal Power Act
(16 U.S.C. 824o(b)(1)).''
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
SOLID WASTE DISPOSAL ACT
TITLE II--SOLID WASTE DISPOSAL
Subtitle A--General Provisions
short title and table of contents
Sec. 1001. This title (hereinafter in this title referred to
as ``this Act''), together with the following table of
contents, may be cited as the ``Solid Waste Disposal Act'':
* * * * * * *
Subtitle D--State or Regional Solid Waste Plans
* * * * * * *
Sec. 4011. Management and disposal of coal combustion residuals.
* * * * * * *
Subtitle D--State or Regional Solid Waste Plans
* * * * * * *
SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS.
(a) State Permit Programs for Coal Combustion Residuals.--
Each State may adopt, implement, and enforce a coal combustion
residuals permit program in accordance with this section.
(b) State Actions.--
(1) Notification.--Not later than 6 months after the
date of enactment of this section (except as provided
by the deadline identified under subsection (d)(3)(B)),
the Governor of each State shall notify the
Administrator, in writing, whether such State will
adopt and implement a coal combustion residuals permit
program.
(2) Certification.--
(A) In general.--Not later than 24 months
after the date of enactment of this section
(except as provided in subparagraph (B) and
subsection (f)(1)(A)), in the case of a State
that has notified the Administrator that it
will implement a coal combustion residuals
permit program, the head of the lead State
implementing agency shall submit to the
Administrator a certification that such coal
combustion residuals permit program meets the
requirements described in subsection (c).
(B) Extension.--
(i) Requirements.--The Administrator
may extend the deadline for submission
of a certification for a State under
subparagraph (A) for a period of 12
months if the State submits to the
Administrator a request for such an
extension that--
(I) describes the efforts of
the State to meet such
deadline;
(II) demonstrates that the
legislative or rulemaking
procedures of such State render
the State unable meet such
deadline; and
(III) provides the
Administrator with a detailed
schedule for completion and
submission of the
certification.
(ii) Determination.--If the
Administrator does not approve or deny
a request submitted under clause (i) by
the date that is 30 days after such
submission, the request shall be deemed
approved.
(C) Contents.--A certification submitted
under this paragraph shall include--
(i) a letter identifying the lead
State implementing agency, signed by
the head of such agency;
(ii) identification of any other
State agencies involved with the
implementation of the coal combustion
residuals permit program;
(iii) an explanation of how the State
coal combustion residuals permit
program meets the requirements of this
section, including--
(I) a description of the
State's--
(aa) process to
inspect or otherwise
determine compliance
with such permit
program;
(bb) process to
enforce the
requirements of such
permit program;
(cc) public
participation process
for the promulgation,
amendment, or repeal of
regulations for, and
the issuance of permits
under, such permit
program; and
(dd) statutes,
regulations, or
policies pertaining to
public access to
information, including
information on
groundwater monitoring
data, structural
stability assessments,
emergency action plans,
fugitive dust control
plans, notifications of
closure (including any
certification of
closure by a qualified
professional engineer),
and corrective action
remedies; and
(II) identification of any
changes to the definitions
under section 257.53 of title
40, Code of Federal
Regulations, for purposes of
the State coal combustion
residuals permit program,
including a reasonable basis
for such changes, as required
under subsection (l)(5);
(iv) a statement that the State has
in effect, at the time of
certification, statutes or regulations
necessary to implement a coal
combustion residuals permit program
that meets the requirements described
in subsection (c);
(v) copies of State statutes and
regulations described in clause (iv);
(vi) a plan for a response by the
State to a release at a structure or
inactive surface impoundment that has
the potential for impact beyond the
site on which the structure or inactive
surface impoundment is located; and
(vii) a plan for coordination among
States in the event of a release that
crosses State lines.
(D) Updates.--A State may update the
certification as needed to reflect changes to
the coal combustion residuals permit program.
(3) Maintenance of 4005(c) or 3006 program.--In order
to adopt or implement a coal combustion residuals
permit program under this section (including pursuant
to subsection (f)), the lead State implementing agency
shall maintain an approved permit program or other
system of prior approval and conditions under section
4005(c) or an authorized program under section 3006.
(c) Requirements for a Coal Combustion Residuals Permit
Program.--A coal combustion residuals permit program shall
consist of the following:
(1) General requirements.--
(A) Permits.--The implementing agency shall
require that owners or operators of structures
apply for and obtain permits incorporating the
applicable requirements of the coal combustion
residuals permit program.
(B) Public availability of information.--
Except for information with respect to which
disclosure is prohibited under section 1905 of
title 18, United States Code, the implementing
agency shall ensure that--
(i) documents for permit
determinations are made publicly
available for review and comment under
the public participation process of the
coal combustion residuals permit
program;
(ii) final determinations on permit
applications are made publicly
available;
(iii) information on groundwater
monitoring data, structural stability
assessments, emergency action plans,
fugitive dust control plans,
notifications of closure (including any
certification of closure by a qualified
professional engineer), and corrective
action remedies required pursuant to
paragraph (2), collected in a manner
determined appropriate by the
implementing agency, is publicly
available, including on an Internet
website; and
(iv) information regarding the
exercise by the implementing agency of
any discretionary authority granted
under this section and not provided for
in the rule described in subsection
(l)(1) is made publicly available.
(C) Agency authority.--
(i) In general.--The implementing
agency shall--
(I) obtain information
necessary to determine whether
the owner or operator of a
structure is in compliance with
the requirements of the coal
combustion residuals permit
program;
(II) conduct or require
monitoring or testing to ensure
that structures are in
compliance with the
requirements of the coal
combustion residuals permit
program; and
(III) enter any site or
premise at which a structure or
inactive coal combustion
residuals surface impoundment
is located for the purpose of
inspecting such structure or
surface impoundment and
reviewing relevant records.
(ii) Monitoring and testing.--If
monitoring or testing is conducted
under clause (i)(II) by or for the
implementing agency, the implementing
agency shall, if requested, provide to
the owner or operator--
(I) a written description of
the monitoring or testing
completed;
(II) at the time of sampling,
a portion of each sample equal
in volume or weight to the
portion retained by or for the
implementing agency; and
(III) a copy of the results
of any analysis of samples
collected by or for the
implementing agency.
(2) Criteria.--The implementing agency shall apply
the following criteria with respect to structures:
(A) Design requirements.--For new structures,
including lateral expansions of existing
structures, the criteria regarding design
requirements described in sections 257.70 and
257.72 of title 40, Code of Federal
Regulations, as applicable.
(B) Groundwater monitoring and corrective
action.--
(i) In general.--Except as provided
in clause (ii), for all structures, the
criteria regarding groundwater
monitoring and corrective action
requirements described in sections
257.90 through 257.98 of title 40, Code
of Federal Regulations, including--
(I) for the purposes of
detection monitoring, the
constituents described in
appendix III to part 257 of
title 40, Code of Federal
Regulations; and
(II) for the purposes of
assessment monitoring,
establishing a groundwater
protection standard, and
assessment of corrective
measures, the constituents
described in appendix IV to
part 257 of title 40, Code of
Federal Regulations.
(ii) Exceptions and additional
authority.--
(I) Alternative point of
compliance.--Notwithstanding
section 257.91(a)(2) of title
40, Code of Federal
Regulations, the implementing
agency may establish the
relevant point of compliance
for the down-gradient
monitoring system as provided
in section 258.51(a)(2) of
title 40, Code of Federal
Regulations.
(II) Alternative groundwater
protection standards.--
Notwithstanding section
257.95(h) of title 40, Code of
Federal Regulations, the
implementing agency may
establish an alternative
groundwater protection standard
as provided in section
258.55(i) of title 40, Code of
Federal Regulations.
(III) Ability to determine
that corrective action is not
necessary or technically
feasible.--Notwithstanding
section 257.97 of title 40,
Code of Federal Regulations,
the implementing agency may
determine that remediation of a
release from a structure is not
necessary as provided in
section 258.57(e) of title 40,
Code of Federal Regulations.
(IV) Authority relating to
releases, other than releases
to groundwater.--
Notwithstanding sections
257.90(d) and 257.96(a) of
title 40, Code of Federal
Regulations, the implementing
agency may, with respect to a
release from a structure, other
than a release to groundwater,
authorize, for purposes of
complying with this section,
remediation of such release in
accordance with other
applicable Federal or State
requirements if compliance with
such requirements will result
in the same level of protection
as compliance with the criteria
described in sections 257.96
through 257.98 of title 40,
Code of Federal Regulations,
taking into consideration the
nature of the release.
(V) General authority
relating to groundwater
monitoring and corrective
action.--Notwithstanding
sections 257.90 through 257.98
of title 40, Code of Federal
Regulations, the implementing
agency may authorize
alternative groundwater
monitoring and corrective
action requirements provided
that such requirements are no
less stringent than the
alternative requirements
authorized to be established
under subpart E of part 258 of
title 40, Code of Federal
Regulations.
(VI) Opportunity for
corrective action for unlined
surface impoundments.--
Notwithstanding section
257.101(a)(1) of title 40, Code
of Federal Regulations, the
implementing agency may allow
the owner or operator of an
existing structure that is an
unlined surface impoundment--
(aa) to continue to
operate, pursuant to
sections 257.96 through
257.98 of title 40,
Code of Federal
Regulations, until the
date that is 102 months
after the date of
enactment of this
section; and
(bb) to continue to
operate after such date
as long as such unlined
surface impoundment
meets the groundwater
protection standard
established pursuant to
this subparagraph and
any other applicable
requirement established
pursuant to this
section.
(C) Closure.--For all structures, the
criteria for closure described in sections
257.101, 257.102, and 257.103 of title 40, Code
of Federal Regulations, except--
(i) the criteria described in section
257.101(a)(1) of title 40, Code of
Federal Regulations, shall apply to an
existing structure that is an unlined
surface impoundment only if--
(I) the unlined surface
impoundment is not allowed to
continue operation pursuant to
subparagraph (B)(ii)(VI)(aa);
or
(II) in the case of an
unlined surface impoundment
that is allowed to continue
operation pursuant to
subparagraph (B)(ii)(VI)(aa),
the date described in such
subparagraph has passed and the
unlined surface impoundment
does not meet the requirements
described in subparagraph
(B)(ii)(VI)(bb);
(ii) the criteria described in
section 257.101(b)(1) of title 40, Code
of Federal Regulations, shall not apply
to existing structures, except as
provided in subparagraphs (E)(i)(II)
and (E)(ii); and
(iii) if an implementing agency has
set a deadline under clause (i) or (ii)
of subparagraph (L), the criteria
described in section 257.101(b)(2) of
title 40, Code of Federal Regulations,
shall apply to structures that are
surface impoundments only after such
deadline.
(D) Post-closure.--For all structures, the
criteria for post-closure care described in
section 257.104 of title 40, Code of Federal
Regulations.
(E) Location restrictions.--
(i) In general.--The criteria for
location restrictions described in--
(I) for new structures,
including lateral expansions of
existing structures, sections
257.60 through 257.64 and
257.3-1 of title 40, Code of
Federal Regulations; and
(II) for existing structures,
sections 257.64 and 257.3-1 of
title 40, Code of Federal
Regulations.
(ii) Additional authority.--The
implementing agency may apply the
criteria described in sections 257.60
through 257.63 of title 40, Code of
Federal Regulations, to existing
structures that are surface
impoundments.
(F) Air criteria.--For all structures, the
criteria for air quality described in section
257.80 of title 40, Code of Federal
Regulations.
(G) Financial assurance.--For all structures,
the criteria for financial assurance described
in subpart G of part 258 of title 40, Code of
Federal Regulations.
(H) Surface water.--For all structures, the
criteria for surface water described in section
257.3-3 of title 40, Code of Federal
Regulations.
(I) Recordkeeping.--For all structures, the
criteria for recordkeeping described in section
257.105 of title 40, Code of Federal
Regulations.
(J) Run-on and run-off controls.--For all
structures that are landfills, sand or gravel
pits, or quarries, the criteria for run-on and
run-off control described in section 257.81 of
title 40, Code of Federal Regulations.
(K) Hydrologic and hydraulic capacity
requirements.--For all structures that are
surface impoundments, the criteria for inflow
design flood control systems described in
section 257.82 of title 40, Code of Federal
Regulations.
(L) Structural integrity.--For structures
that are surface impoundments, the criteria for
structural integrity described in sections
257.73 and 257.74 of title 40, Code of Federal
Regulations, except that, notwithstanding
section 257.73(f)(4) of title 40, Code of
Federal Regulations, the implementing agency
may provide for--
(i) up to 30 days for an owner or
operator to complete a safety factor
assessment when an owner or operator
has failed to meet an applicable
periodic assessment deadline provided
in section 257.73(f) of title 40, Code
of Federal Regulations; and
(ii) up to 12 months for an owner or
operator to meet the safety factor
assessment criteria provided in section
257.73(e)(1) of title 40, Code of
Federal Regulations, if the
implementing agency determines, through
the initial safety factor assessment,
that the structure does not meet such
safety factor assessment criteria and
that the structure does not pose an
immediate threat of release.
(M) Inspections.--For all structures, the
criteria described in sections 257.83 and
257.84 of title 40, Code of Federal
Regulations.
(3) Permit program implementation for existing
structures.--
(A) Notification.--Not later than the date on
which a State submits a certification under
subsection (b)(2), not later than 18 months
after the Administrator receives notice under
subsection (e)(1)(A), or not later than 24
months after the date of enactment of this
section with respect to a coal combustion
residuals permit program that is being
implemented by the Administrator under
subsection (e)(3), as applicable, the
implementing agency shall notify owners or
operators of existing structures of--
(i) the obligation to apply for and
obtain a permit under subparagraph (C);
and
(ii) the requirements referred to in
subparagraph (B)(ii).
(B) Compliance with certain requirements.--
(i) Initial deadline for certain
requirements.--Not later than 8 months
after the date of enactment of this
section, the implementing agency shall
require owners or operators of existing
structures to comply with--
(I) the requirements under
paragraphs (2)(F), (2)(H),
(2)(I), and (2)(M); and
(II) the requirement for a
permanent identification marker
under the criteria described in
paragraph (2)(L).
(ii) Subsequent deadline for certain
other requirements.--Not later than 12
months after the date on which a State
submits a certification under
subsection (b)(2), not later than 30
months after the Administrator receives
notice under subsection (e)(1)(A), or
not later than 36 months after the date
of enactment of this section with
respect to a coal combustion residuals
permit program that is being
implemented by the Administrator under
subsection (e)(3), as applicable, the
implementing agency shall require
owners or operators of existing
structures to comply with--
(I) the requirements under
paragraphs (2)(B), (2)(G),
(2)(J), (2)(K), and (2)(L); and
(II) the requirement for a
written closure plan under the
criteria described in paragraph
(2)(C).
(C) Permits.--
(i) Permit deadline.--Not later than
48 months after the date on which a
State submits a certification under
subsection (b)(2), not later than 66
months after the Administrator receives
notice under subsection (e)(1)(A), or
not later than 72 months after the date
of enactment of this section with
respect to a coal combustion residuals
permit program that is being
implemented by the Administrator under
subsection (e)(3), as applicable, the
implementing agency shall issue, with
respect to an existing structure, a
final permit incorporating the
applicable requirements of the coal
combustion residuals permit program, or
a final denial of an application
submitted requesting such a permit.
(ii) Application deadline.--The
implementing agency shall identify, in
collaboration with the owner or
operator of an existing structure, a
reasonable deadline by which the owner
or operator shall submit a permit
application under clause (i).
(D) Interim operation.--
(i) Prior to deadlines.--Unless the
implementing agency determines that the
structure should close in accordance
with the criteria described in
paragraph (2)(C), with respect to any
period of time on or after the date of
enactment of this section but prior to
the applicable deadline in subparagraph
(B), the owner or operator of an
existing structure may continue to
operate such structure until such
applicable deadline under any
applicable regulations in effect during
such period.
(ii) Prior to permit.--Unless the
implementing agency determines that the
structure should close in accordance
with the criteria described in
paragraph (2)(C), if the owner or
operator of an existing structure meets
the requirements referred to in
subparagraph (B) by the applicable
deadline in such subparagraph, the
owner or operator may operate the
structure until such time as the
implementing agency issues, under
subparagraph (C), a final permit
incorporating the requirements of the
coal combustion residuals permit
program, or a final denial of an
application submitted requesting such a
permit.
(4) Requirements for inactive coal combustion
residuals surface impoundments.--
(A) Notice.--Not later than 2 months after
the date of enactment of this section, each
owner or operator of an inactive coal
combustion residuals surface impoundment shall
submit to the Administrator and the State in
which such inactive coal combustion residuals
surface impoundment is located a notice stating
whether such inactive coal combustion residuals
surface impoundment will--
(i) not later than 3 years after the
date of enactment of this section,
complete closure in accordance with
section 257.100 of title 40, Code of
Federal Regulations; or
(ii) comply with the requirements of
the coal combustion residuals permit
program applicable to existing
structures that are surface
impoundments (except as provided in
subparagraph (D)(ii)).
(B) Extension.--In the case of an inactive
coal combustion residuals surface impoundment
for which the owner or operator submits a
notice described in subparagraph (A)(i), the
implementing agency may extend the closure
deadline provided in such subparagraph by a
period of not more than 2 years if the owner or
operator of such inactive coal combustion
residuals surface impoundment--
(i) demonstrates to the satisfaction
of the implementing agency that it is
not feasible to complete closure of the
inactive coal combustion residuals
surface impoundment in accordance with
section 257.100 of title 40, Code of
Federal Regulations, by the deadline
provided in subparagraph (A)(i)--
(I) because of complications
stemming from the climate or
weather, such as unusual
amounts of precipitation or a
significantly shortened
construction season;
(II) because additional time
is required to remove the
liquid from the inactive coal
combustion residuals surface
impoundment due to the volume
of coal combustion residuals
contained in the surface
impoundment or the
characteristics of the coal
combustion residuals in such
surface impoundment;
(III) because the geology and
terrain surrounding the
inactive coal combustion
residuals surface impoundment
will affect the amount of
material needed to close the
inactive coal combustion
residuals surface impoundment;
or
(IV) because additional time
is required to coordinate with
and obtain necessary approvals
and permits; and
(ii) demonstrates to the satisfaction
of the implementing agency that the
inactive coal combustion residuals
surface impoundment does not pose an
immediate threat of release.
(C) Financial assurance.--The implementing
agency shall require the owner or operator of
an inactive surface impoundment that has closed
pursuant to this paragraph to perform post-
closure care in accordance with the criteria
described in section 257.104(b)(1) of title 40,
Code of Federal Regulations, and to provide
financial assurance for such post-closure care
in accordance with the criteria described in
section 258.72 of title 40, Code of Federal
Regulations.
(D) Treatment as structure.--
(i) In general.--An inactive coal
combustion residuals surface
impoundment shall be treated as an
existing structure that is a surface
impoundment for the purposes of this
section, including with respect to the
requirements of paragraphs (1) and (2),
if--
(I) the owner or operator
does not submit a notice in
accordance with subparagraph
(A); or
(II) the owner or operator
submits a notice described in
subparagraph (A)(ii).
(ii) Inactive coal combustion
residuals surface impoundments that
fail to close.--An inactive coal
combustion residuals surface
impoundment for which the owner or
operator submits a notice described in
subparagraph (A)(i) that does not close
by the deadline provided under
subparagraph (A)(i) or subparagraph
(B), as applicable--
(I) shall be treated as an
existing structure for purposes
of this section beginning on
the date that is the day after
such applicable deadline,
including by--
(aa) being required
to comply with the
requirements of
paragraph (1), as
applicable; and
(bb) being required
to comply, beginning on
such date, with each
requirement of
paragraph (2); but
(II) shall not be required to
comply with paragraph (3).
(d) Federal Review of State Permit Programs.--
(1) In general.--The Administrator shall provide to a
State written notice and an opportunity to remedy
deficiencies in accordance with paragraph (3) if at any
time the State--
(A) does not satisfy the notification
requirement under subsection (b)(1);
(B) has not submitted a certification as
required under subsection (b)(2);
(C) does not satisfy the maintenance
requirement under subsection (b)(3);
(D) is not implementing a coal combustion
residuals permit program, with respect to which
the State has submitted a certification under
subsection (b)(2), that meets the requirements
described in subsection (c);
(E) is not implementing a coal combustion
residuals permit program, with respect to which
the State has submitted a certification under
subsection (b)(2)--
(i) that is consistent with such
certification; and
(ii) for which the State continues to
have in effect statutes or regulations
necessary to implement such program; or
(F) does not make available to the
Administrator, within 90 days of a written
request, specific information necessary for the
Administrator to ascertain whether the State
has satisfied the requirements described in
subparagraphs (A) through (E).
(2) Request.--If a request described in paragraph
(1)(F) is proposed pursuant to a petition to the
Administrator, the Administrator shall make the request
only if the Administrator does not possess the
information necessary to ascertain whether the State
has satisfied the requirements described in
subparagraphs (A) through (E) of paragraph (1).
(3) Contents of notice; deadline for response.--A
notice provided under paragraph (1) shall--
(A) include findings of the Administrator
detailing any applicable deficiencies described
in subparagraphs (A) through (F) of paragraph
(1); and
(B) identify, in collaboration with the
State, a reasonable deadline by which the State
shall remedy such applicable deficiencies,
which shall be--
(i) in the case of a deficiency
described in subparagraphs (A) through
(E) of paragraph (1), not earlier than
180 days after the date on which the
State receives the notice; and
(ii) in the case of a deficiency
described in paragraph (1)(F), not
later than 90 days after the date on
which the State receives the notice.
(4) Considerations for determining deficiency of
state permit program.--In making a determination
whether a State has failed to satisfy the requirements
described in subparagraphs (A) through (E) of paragraph
(1), or a determination under subsection (e)(1)(B), the
Administrator shall consider, as appropriate--
(A) whether the State's statutes or
regulations to implement a coal combustion
residuals permit program are not sufficient to
meet the requirements described in subsection
(c) because of--
(i) failure of the State to
promulgate or enact new statutes or
regulations when necessary; or
(ii) action by a State legislature or
court striking down or limiting such
State statutes or regulations;
(B) whether the operation of the State coal
combustion residuals permit program fails to
comply with the requirements of subsection (c)
because of--
(i) failure of the State to issue
permits as required in subsection
(c)(1)(A);
(ii) repeated issuance by the State
of permits that do not meet the
requirements of subsection (c);
(iii) failure of the State to comply
with the public participation
requirements of this section; or
(iv) failure of the State to
implement corrective action
requirements required under subsection
(c)(2)(B); and
(C) whether the enforcement of a State coal
combustion residuals permit program fails to
comply with the requirements of this section
because of--
(i) failure to act on violations of
permits, as identified by the State; or
(ii) repeated failure by the State to
inspect or otherwise determine
compliance pursuant to the process
identified under subsection
(b)(2)(C)(iii)(I).
(e) Implementation by Administrator.--
(1) Federal backstop authority.--The Administrator
shall implement a coal combustion residuals permit
program for a State if--
(A) the Governor of the State notifies the
Administrator under subsection (b)(1) that the
State will not adopt and implement a permit
program;
(B) the State has received a notice under
subsection (d) and the Administrator
determines, after providing a 30-day period for
notice and public comment, that the State has
failed, by the deadline identified in the
notice under subsection (d)(3)(B), to remedy
the deficiencies detailed in the notice
pursuant to subsection (d)(3)(A); or
(C) the State informs the Administrator, in
writing, that such State will no longer
implement such a permit program.
(2) Review.--A State may obtain a review of a
determination by the Administrator under this
subsection as if the determination was a final
regulation for purposes of section 7006.
(3) Other structures.--For structures and inactive
coal combustion residuals surface impoundments located
on property within the exterior boundaries of a State
that the State does not have authority or jurisdiction
to regulate, the Administrator shall implement a coal
combustion residuals permit program only for those
structures and inactive coal combustion residuals
surface impoundments.
(4) Requirements.--If the Administrator implements a
coal combustion residuals permit program under
paragraph (1) or (3), the permit program shall consist
of the requirements described in subsection (c).
(5) Enforcement.--
(A) In general.--If the Administrator
implements a coal combustion residuals permit
program for a State under paragraph (1)--
(i) the authorities referred to in
section 4005(c)(2)(A) shall apply with
respect to coal combustion residuals,
structures, and inactive coal
combustion residuals surface
impoundments for which the
Administrator is implementing the coal
combustion residuals permit program;
and
(ii) the Administrator may use those
authorities to inspect, gather
information, and enforce the
requirements of this section in the
State.
(B) Other structures.--If the Administrator
implements a coal combustion residuals permit
program under paragraph (3)--
(i) the authorities referred to in
section 4005(c)(2)(A) shall apply with
respect to coal combustion residuals,
structures, and inactive coal
combustion residuals surface
impoundments for which the
Administrator is implementing the coal
combustion residuals permit program;
and
(ii) the Administrator may use those
authorities to inspect, gather
information, and enforce the
requirements of this section for the
structures and inactive coal combustion
residuals surface impoundments for
which the Administrator is implementing
the coal combustion residuals permit
program.
(6) Public participation process.--If the
Administrator implements a coal combustion residuals
permit program under this subsection, the Administrator
shall provide a 30-day period for the public
participation process required under subsection
(c)(1)(B)(i).
(f) State Control After Implementation by Administrator.--
(1) State control.--
(A) New adoption, or resumption of, and
implementation by state.--For a State for which
the Administrator is implementing a coal
combustion residuals permit program under
subsection (e)(1)(A) or subsection (e)(1)(C),
the State may adopt and implement such a permit
program by--
(i) notifying the Administrator that
the State will adopt and implement such
a permit program;
(ii) not later than 6 months after
the date of such notification,
submitting to the Administrator a
certification under subsection (b)(2);
and
(iii) receiving from the
Administrator--
(I) a determination, after
the Administrator provides for
a 30-day period for notice and
public comment, that the State
coal combustion residuals
permit program meets the
requirements described in
subsection (c); and
(II) a timeline for
transition to the State coal
combustion residuals permit
program.
(B) Remedying deficient permit program.--For
a State for which the Administrator is
implementing a coal combustion residuals permit
program under subsection (e)(1)(B), the State
may adopt and implement such a permit program
by--
(i) remedying only the deficiencies
detailed in the notice pursuant to
subsection (d)(3)(A); and
(ii) receiving from the
Administrator--
(I) a determination, after
the Administrator provides for
a 30-day period for notice and
public comment, that the
deficiencies detailed in such
notice have been remedied; and
(II) a timeline for
transition to the State coal
combustion residuals permit
program.
(2) Review of determination.--
(A) Determination required.--The
Administrator shall make a determination under
paragraph (1) not later than 90 days after the
date on which the State submits a certification
under paragraph (1)(A)(ii), or notifies the
Administrator that the deficiencies have been
remedied pursuant to paragraph (1)(B)(i), as
applicable.
(B) Review.--A State may obtain a review of a
determination by the Administrator under
paragraph (1) as if such determination was a
final regulation for purposes of section 7006.
(g) Implementation During Transition.--
(1) Effect on actions and orders.--Program
requirements of, and actions taken or orders issued
pursuant to, a coal combustion residuals permit program
shall remain in effect if--
(A) a State takes control of its coal
combustion residuals permit program from the
Administrator under subsection (f)(1); or
(B) the Administrator takes control of a coal
combustion residuals permit program from a
State under subsection (e).
(2) Change in requirements.--Paragraph (1) shall
apply to such program requirements, actions, and orders
until such time as--
(A) the implementing agency that took control
of the coal combustion residuals permit program
changes the requirements of the coal combustion
residuals permit program with respect to the
basis for the action or order; or
(B) with respect to an ongoing corrective
action, the State or the Administrator,
whichever took the action or issued the order,
certifies the completion of the corrective
action that is the subject of the action or
order.
(3) Single permit program.--Except as otherwise
provided in this subsection--
(A) if a State adopts and implements a coal
combustion residuals permit program under
subsection (f), the Administrator shall cease
to implement the coal combustion residuals
permit program implemented under subsection (e)
for such State; and
(B) if the Administrator implements a coal
combustion residuals permit program for a State
under subsection (e)(1), the State shall cease
to implement its coal combustion residuals
permit program.
(h) Effect on Determination Under 4005(c) or 3006.--The
Administrator shall not consider the implementation of a coal
combustion residuals permit program by the Administrator under
subsection (e) in making a determination of approval for a
permit program or other system of prior approval and conditions
under section 4005(c) or of authorization for a program under
section 3006.
(i) Authority.--
(1) State authority.--Nothing in this section shall
preclude or deny any right of any State to adopt or
enforce any regulation or requirement respecting coal
combustion residuals that is more stringent or broader
in scope than a regulation or requirement under this
section.
(2) Authority of the administrator.--
(A) In general.--Except as provided in
subsections (d), (e), and (g) of this section
and section 6005, the Administrator shall, with
respect to the regulation of coal combustion
residuals under this Act, defer to the States
pursuant to this section.
(B) Imminent hazard.--Nothing in this section
shall be construed as affecting the authority
of the Administrator under section 7003 with
respect to coal combustion residuals.
(C) Enforcement assistance only upon
request.--Upon request from the head of a lead
State implementing agency, the Administrator
may provide to such State agency only the
enforcement assistance requested.
(D) Concurrent enforcement.--Except as
provided in subparagraph (C) of this paragraph
and subsection (g), the Administrator shall not
have concurrent enforcement authority when a
State is implementing a coal combustion
residuals permit program, including during any
period of interim operation described in
subsection (c)(3)(D).
(3) Citizen suits.--Nothing in this section shall be
construed to affect the authority of a person to
commence a civil action in accordance with section
7002.
(j) Mine Reclamation Activities.--A coal combustion residuals
permit program implemented by the Administrator under
subsection (e) shall not apply to the utilization, placement,
and storage of coal combustion residuals at surface or
underground coal mining and reclamation operations.
(k) Use of Coal Combustion Residuals.--Use of coal
combustion residuals in any of the following ways shall not be
considered to be receipt of coal combustion residuals for the
purposes of this section:
(1) Use as--
(A) engineered structural fill constructed in
accordance with--
(i) ASTM E2277 entitled ``Standard
Guide for Design and Construction of
Coal Ash Structural Fills'', including
any amendment or revision to that
guidance;
(ii) any other published national
standard determined appropriate by the
implementing agency; or
(iii) a State standard or program
relating to--
(I) fill operations for coal
combustion residuals; or
(II) the management of coal
combustion residuals for
beneficial use; or
(B) engineered structural fill for--
(i) a building site or foundation;
(ii) a base or embankment for a
bridge, roadway, runway, or railroad;
or
(iii) a dike, levee, berm, or dam
that is not part of a structure.
(2) Storage in a manner that is consistent with the
management of raw materials, if the coal combustion
residuals being stored are intended to be used in a
product or as a raw material.
(3) Beneficial use--
(A) that provides a functional benefit;
(B) that is a substitute for the use of a
virgin material;
(C) that meets relevant product
specifications and regulatory or design
standards; and
(D) if such use involves placement on the
land of coal combustion residuals in non-
roadway applications, in an amount equal to or
greater than the amount described in the
definition of beneficial use in section 257.53
of title 40, Code of Federal Regulations, for
which the person using the coal combustion
residuals demonstrates, and keeps records
showing, that such use does not result in
environmental releases to groundwater, surface
water, soil, or air that--
(i) are greater than those from a
material or product that would be used
instead of the coal combustion
residuals; or
(ii) exceed relevant regulatory and
health-based benchmarks for human and
ecological receptors.
(l) Effect of Rule.--
(1) In general.--With respect to the final rule
entitled ``Hazardous and Solid Waste Management System;
Disposal of Coal Combustion Residuals from Electric
Utilities'' signed by the Administrator on December 19,
2014--
(A) such rule shall be implemented only
through a coal combustion residuals permit
program under this section; and
(B) to the extent that any provision or
requirement of such rule conflicts, or is
inconsistent, with a provision or requirement
of this section, the provision or requirement
of this section shall control.
(2) References to the code of federal regulations.--
For purposes of this section, any reference to a
provision of the Code of Federal Regulations added by
the rule described in paragraph (1) shall be considered
to be a reference to such provision as it is contained
in such rule.
(3) Effective date.--For purposes of this section,
any reference in part 257 of title 40, Code of Federal
Regulations, to the effective date contained in section
257.51 of such part shall be considered to be a
reference to the date of enactment of this section,
except that, in the case of any deadline established by
such a reference that is in conflict with a deadline
established by this section, the deadline established
by this section shall control.
(4) Applicability of other regulations.--The
application of section 257.52 of title 40, Code of
Federal Regulations, is not affected by this section.
(5) Definitions.--The definitions under section
257.53 of title 40, Code of Federal Regulations, shall
apply with respect to any criteria described in
subsection (c) the requirements of which are
incorporated into a coal combustion residuals permit
program under this section, except--
(A) as provided in paragraph (1); and
(B) a lead State implementing agency may make
changes to such definitions if the lead State
implementing agency--
(i) identifies the changes in the
explanation included with the
certification submitted under
subsection (b)(2)(C)(iii); and
(ii) provides in such explanation a
reasonable basis for the changes.
(6) Other criteria.--The criteria described in
sections 257.106 and 257.107 of title 40, Code of
Federal Regulations, may be incorporated into a coal
combustion residuals permit program at the discretion
of the implementing agency.
(m) Definitions.--In this section:
(1) Coal combustion residuals.--The term ``coal
combustion residuals'' means the following wastes
generated by electric utilities and independent power
producers:
(A) The solid wastes listed in section
3001(b)(3)(A)(i) that are generated primarily
from the combustion of coal, including
recoverable materials from such wastes.
(B) 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.
(C) Fluidized bed combustion wastes that are
generated primarily from the combustion of
coal.
(D) Wastes from the co-burning of coal with
non-hazardous secondary materials, provided
that coal makes up at least 50 percent of the
total fuel burned.
(E) Wastes from the co-burning of coal with
materials described in subparagraph (A) that
are recovered from monofills.
(2) Coal combustion residuals permit program.--The
term ``coal combustion residuals permit program'' means
all of the authorities, activities, and procedures that
comprise a system of prior approval and conditions
implemented under this section to regulate the
management and disposal of coal combustion residuals.
(3) Electric utility; independent power producer.--
The terms ``electric utility'' and ``independent power
producer'' include only electric utilities and
independent power producers that produce electricity on
or after the date of enactment of this section.
(4) Existing structure.--The term ``existing
structure'' means a structure the construction of which
commenced before the date of enactment of this section.
(5) Implementing agency.--The term ``implementing
agency'' means the agency responsible for implementing
a coal combustion residuals permit program, which shall
either be the lead State implementing agency identified
under subsection (b)(2)(C)(i) or the Administrator
pursuant to subsection (e).
(6) Inactive coal combustion residuals surface
impoundment.--The term ``inactive coal combustion
residuals surface impoundment'' means a surface
impoundment, located at an electric utility or
independent power producer, that, as of the date of
enactment of this section--
(A) does not receive coal combustion
residuals;
(B) contains coal combustion residuals; and
(C) contains liquid.
(7) Structure.--
(A) In general.--Except as provided in
subparagraph (B), the term ``structure'' means
a landfill, surface impoundment, sand or gravel
pit, or quarry that receives coal combustion
residuals on or after the date of enactment of
this section.
(B) Exceptions.--
(i) Municipal solid waste
landfills.--The term ``structure'' does
not include a municipal solid waste
landfill.
(ii) De minimis receipt.--The term
``structure'' does not include any
landfill or surface impoundment that
receives only de minimis quantities of
coal combustion residuals if the
presence of coal combustion residuals
is incidental to the material managed
in the landfill or surface impoundment.
(8) Unlined surface impoundment.--The term ``unlined
surface impoundment'' means a surface impoundment that
does not have a liner system described in section
257.71 of title 40, Code of Federal Regulations.
* * * * * * *
MINORITY VIEWS
The unsafe disposal of coal ash presents serious risks to
human health and the environment. Contaminants can leach into
groundwater and drinking water supplies, or become airborne as
toxic dust. Aging or deficient impoundments can fail
structurally, resulting in catastrophic floods of toxic sludge
entering neighboring communities. Examples of these harms are
numerous and well-documented.
On December 19th, 2014, after decades of work, a robust
public process, and consideration of over 450,000 public
comments, EPA released a final rule to address the serious
environmental problems associated with coal ash, while still
protecting beneficial reuses.\1\ The rule sets out minimum
national criteria for the disposal of ash carefully designed to
ensure ``no reasonable probability of adverse effects on health
or the environment.'' \2\
---------------------------------------------------------------------------
\1\U.S. Environmental Protection Agency, Hazardous and Solid Waste
Management System; Disposal of Coal Combustion Residuals from Electric
Utilities, Federal Register, Vol. 80, No. 74, 21302-21501 (April 17,
2015)(online at: http://www2.epa.gov/coalash/coal-ash-rule)
\2\Id., at p.21310.
---------------------------------------------------------------------------
Despite the years of thoughtful work EPA spent developing
the rule and the positive public reaction to its publication,
H.R. 1734 would set aside the rule and put a weaker and
untested program in its place.
H.R. 1734 eliminates the federal floor of protection
established by EPA, omits certain requirements that EPA has
deemed necessary to protect human health and the environment,
delays important health protections, and restricts public
access to information. The new state permitting program
structure lacks an enforceable standard of protection,
abandoning proven models of environmental protection.
The majority report mischaracterizes the need for this
legislation and its effects.
A. COAL ASH LEGISLATION IS NOT NEEDED
In the past, some have argued that coal ash legislation was
needed because EPA was unable to finalize a protective
regulation without endangering beneficial reuse. EPA has now
finalized such a regulation. In light of that, the majority
report asserts three justifications for legislation: (1) a lack
of certainty surrounding the continued ability to beneficially
reuse coal ash, (2) a lack of enforcement because of exclusive
reliance on citizen suits, and (3) the specter of dual
enforcement of both the federal and state requirements.\3\ All
three are without merit.
---------------------------------------------------------------------------
\3\Committee Report, p. 2
---------------------------------------------------------------------------
While the majority report suggests that legislation is
needed because EPA could change course and pursue regulation
for coal ash as hazardous waste ``at some point in the
future,'' the Agency has no plans to do so. EPA's Assistant
Administrator was asked at two hearings before the Committee
this year whether EPA intended to revisit the decision to
regulate coal ash as non-hazardous. Each time, the answer was
``no.''\4\ Further, revisiting that decision would require a
full notice and comment rulemaking which would take several
years and require public participation.
---------------------------------------------------------------------------
\4\Testimony of Mathy Stanislaus, Hearing on ``HR __, the Improving
Coal Combustion Residuals Regulation Act of 2015,'' Subcommittee on
Environment and the Economy (March 24, 2015) at p.17, (online at:
http://docs.house.gov/meetings/IF/IF18/20150318/103173/HHRG-114-IF18-
20150318-SD011.pdf); Testimony of Mathy Stanislaus, Hearing on ``EPA's
2014 Final Rule: Disposal of Coal Combustion Residuals from Electric
Utilities,'' Subcommittee on Environment and the Economy (January 22,
2015) at pp.36-37 (online at: http://democrats.
energycommerce.house.gov/sites/default/files/documents/Preliminary-
Transcript-EE-EPA-Rule-Coal-Combustion-Residuals-2015-1-22.pdf)
---------------------------------------------------------------------------
On the second point, citizen suits would not be the only
means of enforcement under the EPA Final Rule. EPA's
expectation, based on discussions with States during the
development of the final rule, is that States will revise their
Solid Waste Management Plans (SWMPs) to incorporate the rule's
requirements.\5\ The rule also provides a mechanism for EPA to
review and approve these revised SWMPs. States, then, will have
authority to enforce the requirements and to include them in
permits, providing enforcement through means other than citizen
suits.
---------------------------------------------------------------------------
\5\Testimony of Mathy Stanislaus, Hearing on ``HR __, the Improving
Coal Combustion Residuals Regulation Act of 2015'' (March 24, 2015) at
p.6, (online at: http://docs.house.gov/meetings/IF/IF18/20150318/
103173/HHRG-114-IF18-20150318-SD011.pdf).
---------------------------------------------------------------------------
The majority report recognizes that states will incorporate
these requirements and pursue their own enforcement in arguing
that legislation is needed to prevent ``overlapping or dual
regulatory programs''. The majority argues that even if states
incorporate the federal requirements into their SWMPs, EPA's
rule remains in place as an ``independent set of requirements''
and subjects industry to overlapping federal and state
requirements.\6\ However, under the final rule, EPA will
approve state SWMPs if they are identical or more stringent
than the federal requirements.\7\ Thus, a utility could not be
in full compliance with the State requirements and violate the
federal requirements. Conflicting requirements are therefore
not a concern.
---------------------------------------------------------------------------
\6\Committee Report on H.R. 1734, at p.3.
\7\EPA Final Rule, at p.21332.
---------------------------------------------------------------------------
It is therefore our position that legislation to address
coal ash disposal is not needed.
B. H.R. 1734 WOULD UNDERMINE AND DELAY NECESSARY PUBLIC HEALTH
PROTECTIONS
In addition to being unnecessary, H.R. 1734 is dangerous
and would undermine necessary public health protections.
The majority report states that the requirements in the
bill ``directly incorporate and effectively codify the
protective standards'' in EPA's final rule.\8\ However, the
bill selectively omits certain EPA's requirements, and grants
states significant discretion to change others or enforce
``alternative'' requirements. As such, H.R. 1734 effectively
unravels EPA's efforts to establish cohesive, nationally
applicable criteria that are sufficiently protective of human
health and the environment.
---------------------------------------------------------------------------
\8\Committee Report at p. 1
---------------------------------------------------------------------------
The following are key examples of protective requirements
in EPA's final rule that would be eliminated by the bill:
Location Restrictions. The EPA rule prohibits or
restricts coal ash disposal structures (1) less than five feet
above the upper limit of the uppermost aquifer, (2) in
wetlands, (3) in fault areas, (4) in seismic impact zones, and
(5) unstable areas.\9\ The bill eliminates all of these
location restrictions for existing impoundments except for one:
unstable areas.\10\
---------------------------------------------------------------------------
\9\EPA Final Rule, at p.21304.
\10\H.R. 1734, Subsection (c)(2)(E).
---------------------------------------------------------------------------
Liner Requirements for Existing Surface
Impoundments. The EPA rule requires existing wet surface
impoundments to be lined, and lays out design criteria for
acceptable liners.\11\ The bill would eliminate this
requirement, and allow unlined or insufficiently lined surface
impoundments to continue to receive waste.\12\
---------------------------------------------------------------------------
\11\EPA Final Rule, at pp.21474-21475.
\12\H.R. 1734, Subsection (l)(5).
---------------------------------------------------------------------------
Closure Requirements for Deficient Structures. For
surface impoundments that fail to meet EPA's standards, the
rule requires that they cease receiving waste within six months
and close. This includes, for example, those that (1) are
unlined and violate groundwater protection standards, (2) fail
to meet location restrictions, or (3) fail to meet minimum
structural stability requirements.\13\ The bill lacks such
closure requirements for deficient structures, and would permit
continued operations for years or even indefinitely.\14\
---------------------------------------------------------------------------
\13\EPA Final Rule, at pp.21489-21496.
\14\H.R. 1734, Subsection (c)(2)(C).
---------------------------------------------------------------------------
The added discretion given to states further erodes the
federal floor of requirements set by EPA. The following are
just a few significant examples:
Groundwater Protection Standards. The EPA Final
Rule establishes minimum requirements for groundwater
monitoring and groundwater protection in all states.\15\ The
bill, in contrast, gives states discretion to choose lower
groundwater protection standards and weaken monitoring
requirements by altering monitoring parameters and choosing
alternative points of compliance away from the disposal
boundary.\16\
---------------------------------------------------------------------------
\15\EPA Final Rule, at pp.21484-21487.
\16\H.R. 1734, Subsection (c)(2)(B)(ii)(I) and (II).
---------------------------------------------------------------------------
Cleanup Requirements. Where the Final Rule
requires all releases and groundwater contamination to be
addressed,\17\ the bill allows states to decide that
groundwater contamination and other pollution need not be
cleaned up.\18\ The only limits on this state discretion are
borrowed from municipal solid waste regulation.\19\
---------------------------------------------------------------------------
\17\EPA Final Rule, at 21487-21489.
\18\H.R. 1734, Subsection (c)(2)(B)(ii)(III) and (IV).
\19\Id.
---------------------------------------------------------------------------
Scope of Requirements. Unlike the Final Rule, the
bill gives states broad discretion to redefine major terms,
including terms that set the scope of permit requirements. For
example, states have discretion to define ``landfills'' to
exclude waste piles, to define ``surface impoundments'' to
exclude impoundments below a certain size, and ``aquifer'' to
exclude aquifers not currently serving as drinking water
sources.\20\ These varying definitions have the potential to
exempt structures covered by minimum requirements in some
states from coverage in others.
---------------------------------------------------------------------------
\20\H.R. 1734, Subsection (m); EPA Final Rule, at 21469-21471.
---------------------------------------------------------------------------
Transparency. The EPA rule requires that companies
make a substantial amount of operations and compliance data,
including specific monitoring data, publicly available on an
internet site, without exception for information that a company
may consider confidential.\21\ Although the majority states
that the bill ``results in transparency equivalent to that of
the requirement in the Final Rule'',\22\ H.R. 1734 removes many
of the specific posting requirements, creates exceptions for
information that is claimed to be confidential, and gives
discretion to states and facilities to decide how and what
information is shared publicly.\23\
---------------------------------------------------------------------------
\21\EPA Final Rule, for a full discussion of the treatment of
requirement to post information that may be considered confidential,
see pp.21338-21339.
\22\Committee Report on H.R. 1734, at p. 10.
\23\H.R. 1734, Subsection (c)(1)(B) and (l)(5).
---------------------------------------------------------------------------
The bill would also significantly delay compliance. The EPA
rule requires coal ash disposal sites to quickly come into
compliance with the rule's requirements, with many requirements
effective six months after publication. That six month period
began on April 17th with publication of the rule in the Federal
Register.\24\ Although the majority states the intent was for
``time frames for compliance . . . match as closely as
possible,''\25\ all time frames will be counted from the date
of enactment, which is uncertain but could likely occur after
compliance deadlines for the final rule. Further, the bill
allows for years of delay of many requirements while states set
up and certify their programs and facilities apply for permits.
Compliance with interim requirements would not be required for
3-4 years, and full compliance would not be required until
permits are issued--potentially 6-7 years after enactment.\26\
---------------------------------------------------------------------------
\24\80 Fed. Reg. 21302 (Apr. 17, 2015). (available online at http:/
/www.gpo.gov/fdsys/pkg/FR-2015-04-17/pdf/2015-00257.pdf)
\25\Committee Report on H.R. 1734, at p.15.
\26\H.P 1734 at Subsection (c)(3).
---------------------------------------------------------------------------
The bill also removes rulemaking authority from EPA such
that any change in the technical criteria would have to be done
statutorily.\27\
---------------------------------------------------------------------------
\27\ Id., at p. 41.
---------------------------------------------------------------------------
C. H.R. 1734 COULD RESTRICT CITIZEN ACTIONS TO ENSURE SAFE DISPOSAL OF
COAL ASH
The majority claims that it ``does not intend to interfere
with the ability of any person to bring a citizen suit under
the Solid Waste Disposal Act.''\28\ However, the bill imposes
all technical requirements on the state permit program's
``implementing agency'', not the owners and operators of coal
ash facilities.\29\ Because of this, suits to enforce the
requirements of the legislation would only be available against
those implementing agencies to bring them into compliance with
the procedural requirements of establishing a program. In
contrast, EPA's final rule imposes requirements directly on
coal ash disposal facilities, meaning that citizen suits are
available to bring those facilities into compliance with the
protective requirements. This legislation may block RCRA
citizen suits against owners and operators of facilities,
leaving only suits against the state implementing agencies.
---------------------------------------------------------------------------
\28\Committee Report on H.R. 1734, at p.22.
\29\See H.R. 1734, Subsection (c)(2).
---------------------------------------------------------------------------
D. THE BILL WOULD UNDERMINE THE PROVEN MODEL OF ENVIRONMENTAL
REGULATION
Unlike programs delegated to states under other
environmental statutes and state delegation under RCRA for both
hazardous and municipal waste, H.R. 1734 would not hold state
programs to a standard of protection. The Congressional
Research Service released a report on the design of this permit
program, which is the same as that in past coal ash bills in
the 112th Congress and expanded in the 113th.\30\ Accordingly
to the report, the permit program design lacks an enforceable
standard of protection,\31\ substantive EPA review,\32\ and
backstop enforcement authority at the federal level.\33\
---------------------------------------------------------------------------
\30\Congressional Research Service, Analysis of Recent Proposals to
Amend the Resources Conservation and Recovery Act to Create a Coal
Combustion Residuals Permit Program, March 19, 2013, (online at http://
democrats.energycommerce.house.gov/sites/default/files/documents/CRS-
Analysis-Recent-Proposals-to-RCRA-2013-3-19.pdf).
\31\Id., at pp.4, 8.
\32\Id., at p. 33.
\33\Id., at p. 9.
---------------------------------------------------------------------------
E. Conclusion
This bill is unnecessary and dangerous and should not be
enacted. Improper disposal of coal ash presents serious
environmental and health risks. The Environmental Protection
Agency has taken strong action to address these risks. The new
coal ash rule should be allowed to take effect, so that a
national standard of protection can be achieved. For the
reasons above, we dissent from the views expressed by the
majority.
Frank Pallone, Jr.,
Ranking Member.
Paul Tonko,
Ranking Member, Subcommittee
on Environment and the
Economy.
[all]