In contrast to its Subtitle C option, EPA has no authority to enforce the standards it proposes under the Subtitle D option. That amendment would create a coal combustion residuals permit program, defined as "a permit program or other system of prior approval and conditions that is adopted by or for a state for the management and disposal of coal combustion residuals to the extent such activities occur in structures in such state." Legislative provisions largely identical to those in the Coal Residuals Reuse and Management Act are included in legislation that would extend the authorization of federal funding for surface transportation programs administered by the Department of Transportation (DOT). 2273 and S. 1751 . On April 24, 2012, the Senate agreed by unanimous consent to an amendment that struck the House-passed language from H.R. This report provides background information concerning the provisions in the proposed Section 4011 of RCRA in H.R. The report also summarizes selected MSW landfill regulations and standards proposed by EPA in June 2010 under Subtitle D. Finally, with regard to the legislative proposals that would amend Subtitle D, the report summarizes provisions in the proposed Section 4011 of RCRA; identifies potential issues associated with implementing a statutory permit program; and compares details of the regulatory requirements applicable to MSW landfills, on which the legislative proposal is based, to comparable elements of the proposed CCR permit program. The Nature of CCRs and Concern over CCR Management

CCRs are the inorganic residues that remain after pulverized coal is burned. In May 2000, after review by OMB, EPA issued a revised regulatory determination stating that it would continue to exclude CCRs from regulation as hazardous waste under Subtitle C. However, similar to statements in its March 2000 draft proposal, EPA stated that it was convinced that national regulations under Subtitle D were warranted for CCR disposal in landfills and surface impoundments because
the composition of the waste had the potential to present danger to human health and the environment in certain circumstances; EPA had identified proven cases of damages to human health and the environment through improper waste management; while industry management practices had improved measurably, there was sufficient evidence the wastes were being managed in a significant number of landfills and surface impoundments without proper controls in place, particularly in the area of groundwater monitoring; and while there had been substantive improvements in state regulatory programs, EPA identified significant gaps either in states' regulatory authorities or in their exercise of existing authorities. While new CCR facilities are likely to be built with liners and groundwater monitoring systems, the majority of facilities currently in use are not new. Under both regulatory options, owners and operators of CCR landfills and surface impoundments would be required to implement protective measures that are largely similar (e.g., under both options facilities would be required to install composite liners and groundwater monitoring). EPA's Subtitle D approach to regulating CCR disposal facilities is generally supported by state regulatory agencies and industry groups. EPA Requirements Relevant to the Proposed Legislation

The proposed CCR permit program would draw from certain waste management standards promulgated or proposed by EPA pursuant to Subtitle D: specifically, existing regulatory standards applicable to the management of municipal solid waste (MSW) and selected proposed standards applicable to CCR landfills and surface impoundments. Legislative Proposal to Amend RCRA

The legislative proposal to amend Subtitle D of RCRA would add a Section 4011, Management and Disposal of Coal Combustion Residuals. By creating such a program entirely within the proposed statute, Congress would create a permit program unique among environmental laws. Charges of overreaching its regulatory authority have also been cited by certain opponents to EPA's proposal to identify and regulate CCRs as a hazardous waste under Subtitle C. Creation of a CCR permit program in the proposed amendment to RCRA could be seen as an effort to create a mechanism to manage CCRs that would allow states wide discretion in adopting and implementing the program, while limiting the potential involvement of EPA. To recognize the similarities and distinct differences between the two, it is useful to compare provisions in the proposed CCR permit program to existing requirements applicable to MSW landfills, as well as elements of EPA's June 2010 proposal to regulate CCR disposal facilities under Subtitle D.
As detailed in the discussion of " Existing Municipal Solid Waste Management Requirements ," above, the federal regulatory framework applicable to MSW management was developed as a result of four distinct yet interrelated directives in Subtitle D that required (1) EPA to promulgate national criteria applicable to MSW landfills; (2) states to adopt a permit program to assure facility compliance with those criteria; (3) EPA to determine the adequacy of state permit programs; and (4) EPA to enforce the MSW landfill criteria in states with an inadequate permit program. Neither proposal would apply federally enforceable standards to owners and operators of CCR landfills or surface impoundments.
On April 24, 2012, the House and Senate began the conference process to reconcile legislation passed in both houses that would extend authorization for Department of Transportation programs. Title V in the House-passed legislation (H.R. 4348), Highway and Infrastructure Safety Through the Protection of Coal Combustion Residual Recycling, would amend the Resource Conservation and Recovery Act (RCRA) to add Section 4011. Largely identical to the Coal Residuals Reuse and Management Act passed in the House (H.R. 2273) and introduced in the Senate (S. 1751), the proposed Section 4011 would create a state-based permit program for the management and disposal of coal combustion residuals (CCRs, also known as coal ash).
Concern over CCR Management
CCRs are the inorganic materials that remain after pulverized coal is burned for power production. Generally, more than 100 million tons of CCRs are generated annually in the United States, the majority of which is accumulated in landfills or surface impoundment ponds at individual power plants. The Environmental Protection Agency (EPA) has determined that accumulation in unlined units, particularly surface impoundments, poses a substantial risk of contaminant leaching (particularly selenium and arsenic) to surface and groundwater. EPA found that use of a composite liner largely eliminated that risk. While new units are likely to be built with liners, EPA has determined that the majority in use today are older and unlikely to have liners.
Administration and Congressional Proposals to Manage CCRs
CCR management is regulated by individual states, which EPA has found to be inconsistent in its requirements for protective measures (e.g., liners and groundwater monitoring systems). Concerns regarding the risks of improper management and inconsistent state regulations led EPA to propose national standards for CCR disposal. In June 2010, EPA released for public comment two regulatory options—one proposed under its existing authority to regulate hazardous wastes, under Subtitle C of RCRA, the other under its authority to promulgate standards applicable to "sanitary landfills," under Subtitle D of RCRA. EPA is authorized to enforce its proposed Subtitle C standards, but could only encourage states to adopt and enforce the Subtitle D standards.
In contrast to EPA's proposals, the proposed amendment to RCRA would create a state-based permit program for the management and disposal of CCRs. Established entirely in statute, Congress would create a program unique among environmental laws. That is, the permit program would be created with no directive to EPA to promulgate regulations applicable to the program or to CCR landfills and surface impoundments. Instead, existing regulations applicable to municipal solid waste (MSW) landfills and elements of EPA's June 2010 proposal would apply to the program.
Stakeholders in favor of the legislative approach include industry groups concerned that implementing EPA's Subtitle C option would stigmatize CCRs by labeling the materials "hazardous waste," potentially reducing markets for reuse and recycling (e.g., as a component in concrete or roadbed materials). States support this approach, as it would allow them to regulate CCRs as they deem necessary. Stakeholders opposed to this approach argue that the flexibility allowed to states in deciding whether or when facilities may be required to obtain a permit, as well as the proposed amendment's lack of federally enforceable standards applicable to CCR landfills and surface impoundments, would likely result in few changes to current state programs.
Scope and Purpose of This Report
This report provides background to understand the legislative proposals to amend Subtitle D of RCRA and identifies potential challenges to implementing the proposed permit program. Considering their influence on program implementation, the report discusses the regulatory standards on which the permit program would be based. In particular, it summarizes EPA's existing (MSW) and proposed (CCR) standards relevant to the proposed CCR permit program. This report also summarizes provisions in the proposed Section 4011 of RCRA; identifies potential challenges to implementing a statutory permit program; and compares regulations applicable to MSW landfills to comparable elements of the proposed CCR permit program.