	Introduction

The Resource Conservation and Recovery Act of 1976 (RCRA; 42 U.S.C. This regulatory program is sometimes referred to as "cradle-to-grave" management. That year, there were 589 coal-fired power plants in the United States. With some exceptions, regulatory determinations were made for each waste between 1988 and 2002. The report discusses specific Bevill or Bentsen waste only as necessary to provide examples of recent issues that have called attention to the waste, particularly issues that may lead EPA to determine that new federal waste management requirements should be established for any one or more of the currently excluded wastes. Regulations established under Subtitle C apply only to the management of solid waste identified as hazardous. If regulated or explicitly not regulated under Subtitle C, those concerns included the potential cost to industry, given uncertainties of risks associated with such wastes; conflicts with other federal law, such as wastewater treatment requirements being implemented under the Clean Water Act (CWA); and precedent that would be set by giving preferential treatment to certain industries to be exempt from strict Subtitle C requirements. Ultimately, the Solid Waste Disposal Act Amendments of 1980 ( P.L. More specifically, the Bentsen amendment added Subsection 3001(b)(2), which excludes "drilling fluids, produced waters, and other wastes associated with the exploration, development, and production of crude oil or natural gas or geothermal energy" from Subtitle C requirements. The Bevill amendment added Subsection 3001(b)(3) to exclude the following from Subtitle C:
fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated from the combustion of coal or other fossil fuels; solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore; and cement kiln dust. Each determination to exempt the waste from the federal hazardous waste management program was not equivalent to determining each waste is nonhazardous or poses no potential hazard. For example, CWA requires that discharges of pollutants to surface waters (e.g., wastewater discharges to a river, bay, or ocean) must be authorized by a permit issued under the National Pollutant Discharge Elimination System (NPDES) program. (A discussion of state and federal requirements potentially applicable to the management of Bevill-Bentsen waste is beyond the scope of this report. Recent Attention on Bevill-Bentsen Waste

Since EPA determined that regulation under Subtitle C was not warranted, various stakeholders representing environmental, public health, and industry groups have disagreed over whether the exclusion results in risks to human health and the environment. Those stakeholders, as well as EPA and state regulatory agencies, have disagreed on a wide range of issues, including the level of risk posed by the waste; whether or not existing state or other federal requirements are adequate to address risks associated with the waste; the degree to which there are gaps in local or state regulation of the waste; and whether regulation under Subtitle C is an appropriate mechanism to manage the waste. EPA Authorities to Regulate Bevill-Bentsen Waste

EPA's existing authority to subject Bevill-Bentsen waste to any new federal waste management requirements under RCRA is established under Subtitle C, subject to limitations specified in the Bevill and Bentsen amendments. EPA efforts to regulate CCW provide evidence of the challenges posed to regulating an excluded waste under Subtitle C. In 2000 and 2009, EPA submitted draft regulatory determinations for review to the White House Office of Management and Budget (OMB) recommending that risks associated with the improper management of CCW warrant its regulation according to national standards established under Subtitle C. In both instances, after OMB review, those draft recommendations were revised—in 2000 to keep the Bevill exclusion in place, and in 2010 to include a Subtitle D option to regulate the waste. EPA Authority Under RCRA Subtitle D

Solid waste that does not meet the regulatory definition of a hazardous waste, including solid waste that is explicitly deemed not a hazardous waste (e.g., Bevill-Bentsen waste), is regulated under RCRA Subtitle D. In contrast to Subtitle C requirements, Subtitle D regulates only the disposal of solid waste. EPA could potentially draw from its Subtitle D authorities to establish requirements applicable to solid waste disposal facilities that receive a particular Bevill-Bentsen waste. If improperly managed, it may pose some threat to human health and the environment.
The federal program to manage hazardous waste was established in 1976 by the Resource Conservation and Recovery Act (RCRA). Under RCRA Subtitle C, Congress directed the Environmental Protection Agency (EPA) to promulgate standards applicable to persons who generate, transport, treat, store, or dispose of such waste. Under the program, federal waste handling requirements govern every phase of waste management, from its generation to its final disposition and beyond ("cradle to grave").
The stringent Subtitle C standards apply only to waste identified as "hazardous" according to regulatory criteria established by EPA. This report discusses waste excluded from the regulatory definition of hazardous waste pursuant to amendments to Subtitle C in the Solid Waste Disposal Act Amendments of 1980. Sometimes referred to by the names of their sponsors, Representative Thomas Bevill and Senator Lloyd Bentsen, the amendments exclude specific large-volume industrial solid waste from Subtitle C, as follows:
The Bevill Amendment—fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels; solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore; and cement kiln dust (42 U.S.C. §6921(b)(3)(A)(i)-(iii)). The Bentsen Amendment—drilling fluids, produced waters, and other wastes associated with the exploration, development, and production of crude oil or natural gas or geothermal energy (42 U.S.C. §6921(b)(2)(A)).
The exclusions were temporary, pending EPA study of each waste, followed by reports to Congress and regulatory determinations explaining whether or not regulation under Subtitle C was warranted.
Regulatory Determinations for Bevill-Bentsen Waste
EPA issued regulatory determinations for each type of waste between 1988 and 2002. With limited exceptions, the agency determined that regulation under Subtitle C was not warranted. EPA noted that the exclusion is not equivalent to determining the waste is nonhazardous. EPA identified conditions under which management of each waste poses some threat to human health and the environment. The exemption meant that Subtitle C's strict cradle-to-grave management may not be practical for the waste, but that other potentially applicable state or federal requirements could be adequate to address waste-specific risks. For example, wastewater excluded from Subtitle C may be subject to National Pollutant Discharge Elimination System permitting requirements established under the Clean Water Act (CWA) if its disposal involves discharge to surface water or processing at a municipal wastewater treatment facility.
Existing EPA Authority to Regulate Bevill-Bentsen Waste
Two categories of Bevill-Bentsen wastes that have recently drawn national attention include wastewater generated from natural gas production that involves hydraulic fracturing and coal combustion waste (CCW) generated at coal-fired power plants (e.g., "coal ash"). That attention has been due, in part, to changes in the volume or nature of the waste or as a result of risks to human health and the environment associated with improper management of the waste.
The potential for EPA to regulate spent fracking fluid, CCW, or any other Bevill-Bentsen wastes has drawn the attention of some Members of Congress, generally for two opposing reasons: (1) given its current authority under RCRA, EPA may not be able to regulate the waste adequately to address risks associated with its disposal; or (2) given existing state and other federal requirements applicable to the management of the waste, EPA will subject the waste to unnecessary requirements that are costly and burdensome to states and to industry.
This report discusses EPA's existing authorities under RCRA Subtitle C (with regard to hazardous waste management) or Subtitle D (solid waste management) from which the agency could draw to establish new requirements applicable to Bevill or Bentsen wastes, including any limitations on its Subtitle C authorities established under the Bevill-Bentsen amendments. The report does not attempt to identify or discuss issues specific to each Bevill-Bentsen waste, such as risks associated with improper management, or what EPA has identified as improper management.