	Introduction

Coal combustion waste (CCW) is inorganic material that remains after pulverized coal is burned for electricity production. A tremendous amount of the material is generated each year—industry estimates that as much as 135 million tons were generated in 2009, making it one of the largest waste streams generated in the United States. On December 22, 2008, national attention was turned to risks associated with managing such large volumes of waste when a breach in a surface impoundment pond at the Tennessee Valley Authority's (TVA's) Kingston, TN, plant released 1.1 billion gallons of coal fly ash slurry. TVA estimates that cleanup costs may reach $1.2 billion. The incident at Kingston brought attention to the potential for a sudden, catastrophic release related to the structural failure of a surface impoundment. Under the first option, EPA would draw on its existing authority to identify a waste as hazardous and regulate it under the hazardous waste management standards established under Subtitle C of the Resource Conservation and Recovery Act (RCRA, 42 U.S.C. The second option would establish criteria applicable to landfills and surface impoundments accepting CCW under RCRA's Subtitle D solid waste management requirements. Under Subtitle D, EPA does not have the authority to enforce its proposed requirements. Instead, EPA would rely on states or citizen suits to enforce its standards. State representatives are concerned about the costs of implementing a Subtitle C regulatory program. Environmental and citizen groups argue that new data demonstrate that the waste meets the regulatory criteria necessary to list it as hazardous under Subtitle C and that EPA lacks the authority to enforce the disposal criteria it proposes under Subtitle D. 
Some Members of Congress have expressed concern over EPA's ultimate decision to regulate CCW. They have expressed some of the same concerns expressed by interested stakeholders, primarily questions and concerns regarding the impact that Subtitle C regulations may ultimately have on coal-producing states, state regulatory agencies, energy prices, and CCW recycling opportunities, and concern that human health and the environment would not be sufficiently protected under the Subtitle D option given EPA's limited authority to enforce it. For example, two bills proposed on April 6, 2011 ( H.R. An alternative approach to addressing CCW management is provided in the Coal Residuals Reuse and Management Act ( H.R. EPA would not be directed to establish requirements specifically applicable to the proposed permit program. However, EPA stated that it was convinced that national regulations under Subtitle D were warranted for CCW disposal in landfills and surface impoundments because (1) the composition of the waste had the potential to present danger to human health and the environment in certain circumstances; (2) EPA had identified proven cases of damages to human health and the environment through improper waste management; (3) while industry management practices had improved measurably, there was sufficient evidence the wastes were being managed in a significant number of landfills and surface impoundments without proper controls in place, particularly in the area of groundwater monitoring; and (4) while there had been substantive improvements in state regulatory programs, EPA identified significant gaps either in states' regulatory authorities or in their exercise of existing authorities. Recent risk assessments have shown that CCW disposal in unlined landfills and surface impoundments presents substantial risks to human health and the environment from releases of toxic constituents (particularly arsenic and selenium) into surface and groundwater. Further, those risks are essentially eliminated when the waste is disposed of in units with composite liners. EPA has documented numerous cases of damage to surface and groundwater (e.g., the water exceeded health-based standards for contaminants like lead, arsenic, selenium, and chromium) when CCW was deposited in unlined disposal units or used as construction fill. In its May 2000 regulatory determination, EPA cited inconsistencies in state requirements as a reason to propose national standards to regulate CCW disposal. That is, EPA's authority to implement one option or the other. EPA has primary responsibility for that permitting program.
Coal combustion waste (CCW) is inorganic material that remains after pulverized coal is burned for electricity production. A tremendous amount of the material is generated each year—industry estimates that approximately 135 million tons were generated in 2009. On December 22, 2008, national attention was turned to issues regarding the waste when a breach in an impoundment pond at the Tennessee Valley Authority's (TVA's) Kingston, TN, power plant released 1.1 billion gallons of coal ash slurry. The cleanup cost has been estimated to reach $1.2 billion.
While the incident at Kingston drew national attention to the potential for a sudden catastrophic release of waste, it is not the primary risk attributed to CCW management. An April 2010 risk assessment by the Environmental Protection Agency (EPA) indicated that CCW disposal in unlined landfills and surface impoundments presents substantial risks to human health and the environment from releases of toxic constituents (particularly arsenic and selenium) into surface and groundwater. That risk is largely eliminated when the waste is disposed of in landfills and surface impoundments equipped with composite liners. In addition to potential risks, EPA has reported numerous cases of actual surface and groundwater contamination when CCW was deposited into unlined disposal units or used as construction fill.
CCW disposal is essentially exempt from federal regulation. Instead, it is regulated in accordance with individual state requirements. Inconsistencies among state regulatory programs were identified by EPA in a May 2000 regulatory determination as one reason that national standards to regulate CCW were needed. More recently, EPA called into question the effectiveness of some state regulatory programs in protecting human health and the environment. For example, EPA cited state survey data that showed that over 60% of states do not require liners or groundwater monitoring for surface impoundments (the disposal units with the highest potential for contaminant spread).
To establish national standards intended to address risks associated with potential CCW mismanagement, on June 21, 2010, EPA proposed two regulatory options to manage the waste. The first would draw on EPA's existing authority to identify a waste as hazardous and regulate it under standards established under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The second option would establish regulations applicable to CCW disposal units under RCRA's Subtitle D solid waste management requirements. Under Subtitle D, EPA does not have the authority to implement or enforce its proposed requirements. Instead, EPA would rely on states or citizen suits to enforce the new standards.
The proposal generated comment from industry groups, environmental and citizen groups, state agency representatives, individual citizens, and some Members of Congress. Concerns regarding the Subtitle C proposal relate to its ultimate impact on energy prices, state program implementation costs, and CCW recycling opportunities. Concern about the Subtitle D proposal primarily relates to whether it would sufficiently protect human health and the environment, given EPA's lack of authority to enforce it. Commenters have proposed various legislative options in response to the varied concerns over EPA's existing regulatory options. Possible legislative options include an explicit directive to EPA to regulate or prohibit CCW regulation under Subtitle C or Subtitle D or the creation of a new subtitle under RCRA that requires EPA to develop an entirely new set of disposal criteria specific to CCW management. Another option, proposed in the Coal Residuals Reuse and Management Act (H.R. 2273), would use existing landfill municipal solid waste landfill criteria as the basis for a state CCW permit program.