Each bill would have amended the Solid Waste Disposal Act—more commonly referred to as the Resource Conservation and Recovery Act of 1976 (RCRA; 42 U.S.C. This report looks primarily at how state programs to regulate CCRs may be developed and implemented by a state according to directives in the bills proposed in the 112 th Congress; it does not attempt to identify detailed requirements that may be applied by a state regulatory program. Exactly how state solid waste management programs have been created varies from state to state. That a RCRA program has never been authorized or established by Congress using such an approach does not mean that this new approach would not meet a particular objective. Since those specifications do not include an explicit deadline for fully implementing the program (e.g., issuing permits and assuring facility compliance with applicable regulations), it cannot, as a practical matter, be determined in advance when EPA might evaluate state programs for deficiencies. In a continuing effort to determine whether CCRs should be subject to federal requirements established under RCRA, EPA has gathered data on CCR use and disposal for more than 30 years. On June 21, 2010, EPA proposed for public comment two options to regulate CCRs pursuant to those Subtitle C and D authorities. Of relevance to CCRs would be whether the waste could be identified and specifically listed by EPA as hazardous waste based on its toxicity. To address potential gaps (i.e., to establish regulations applicable to CCR disposal and use in states that are not already regulating CCRs in a manner that protects human health), EPA's June 2010 proposal was intended to create a national standard to regulate CCRs destined for disposal. Proposed CCR Legislation Amending RCRA

As noted, the House and Senate bills considered in the 112 th Congress would add to Subtitle D of RCRA a new Section 4011, "Management and Disposal of Coal Combustion Residuals." EPA would be required to implement the program in states that choose not to do so. The potential for EPA to review a substantive element of a CCR Permit Program is limited to a directive to EPA to notify a state and provide an opportunity to remedy deficiencies if at any time the state is not implementing a program that
meets the Permit Program Specifications in Section 4011(c) or is consistent with the narrative description of its program, included in the narrative description provided in the program certification (required in the State Actions provisions in 4011(b)), and maintains fully effective statutes or regulations necessary to implement a CCR Permit Program. For example, EPA would be required to implement a CCR Permit Program for a state if the agency identified some deficiency in that state's permit program, and the state does not remedy the deficiency within the "reasonable timeframe" negotiated between the state and EPA. Proposed CCR Permit Program elements likely to have the most impact on state program implementation that are different from existing programs to regulate MSW landfills pertain to the following (each of which is discussed in more detail below):
The potential flexibility in state program development and implementation —in the absence of provisions comparable to general regulatory standards, applicable either to regulations that would be implemented by the permit program or to the permit program itself, it would appear that each state could determine key elements related to program implementation (e.g., program applicability) and facility compliance, at least to the degree that such state determinations did not undercut a viable state program. One such provision is the definition of "structures" that may receive CCRs. There is no legislative history for the Senate-proposed bill. The bills would provide no formal role for EPA in this regulatory development process. Part 258 are those EPA determined (as part of a public rulemaking process) are necessary to protect human health and the environment from risks specific to the management of MSW in landfills; baseline federal criteria were applied to owners and operators of regulated units within two years of EPA promulgating the regulations, regardless of when states adopted the regulations or created a permit program to implement them; many states used the federal regulatory criteria as a model for their own regulations, in most cases modifying existing programs to meet the federal criteria; individual state regulations applicable to MSW landfills could vary, as long as facility compliance with those regulations would meet the baseline federal level of protection. The bills did not explicitly require EPA to set uniform national standards of protection or promulgate regulations applicable to CCR structures. Would EPA issue guidance to clarify what it would consider a CCR "structure"? Determining Criteria Necessary to "Protect Human Health and the Environment" Under RCRA
Under RCRA, when Congress has required EPA to promulgate regulations applicable to solid waste disposal facilities and required those regulation to be implemented using a permit program, at a minimum, those standards have been explicitly required to be those necessary to protect human health and the environment from threats specific to a particular type of waste disposal facility or units that may receive a particular type of waste.
In the 112th Congress, the House passed two bills to address the long-standing regulatory impasse over coal combustion residuals (CCRs). The impasse originated in 1980, when an amendment to the Resource Conservation and Recovery Act (RCRA) excluded CCRs from regulation as a hazardous waste, pending further study by the Environmental Protection Agency (EPA). That study was required to identify adverse effects on human health and the environment, if any, of CCR disposal and use before determining whether the materials should be subject to hazardous waste requirements.
For over 30 years, EPA has gathered information, conducted studies, solicited input from state agencies, industry, and the public, and evaluated existing state and federal regulatory programs to determine whether the management of CCRs warranted regulation as a hazardous waste. In June 2010, EPA proposed its most recent regulatory determination for public comment. In that proposal, EPA included two options to regulate CCRs, which were immediately controversial. In the wake of EPA's proposal, the House passed two CCR bills that embodied a new approach to creating state programs to regulate a solid waste under RCRA. Similar legislation was introduced in the Senate, but the chamber took no action. The 113th Congress may consider legislation patterned after the bills considered in the 112th Congress.
This report identifies key elements of that new approach and compares it to existing RCRA solid waste management programs. The report concludes that there are significant differences between the two. Under the new approach, EPA would have no formal role in creating state programs to regulate CCRs (though an informal one may evolve). Further, in contrast to existing RCRA programs, EPA would not be directed to establish regulations applicable to disposal facilities or to approve of state programs to implement those regulations. Instead, states that opt to implement a CCR Permit Program would be expected to establish regulations applicable to "CCR structures" based on program specifications included in the bills. In contrast to existing state waste management programs created under RCRA, such an approach would
Allow individual states to define key terms (e.g., "CCR structures"). Hence, program applicability could vary from state to state, depending on how each state defines those terms. For example, a "CCR landfill" could be defined to include only land disposal units that receive CCRs or may include large-scale fill operations at construction sites (a common use of CCRs that may pose risks similar to landfilling). Establish no explicit deadlines for the issuance of permits or for facility compliance with applicable regulations, allowing individual states to establish such deadlines—although a court might impose deadlines if it determines a state has unreasonably delayed. Require EPA to identify any deficiencies in a state's CCR Permit Program. However, it cannot be predicted what program elements EPA would regard as a "deficiency," or when EPA would make such an evaluation. Require EPA to implement a CCR Permit Program for any state that chooses not to do so or fails to remedy a program deficiency identified by EPA.
State regulations adopted under RCRA (e.g., municipal solid waste landfill regulations) have been required by Congress to be those necessary to meet a national "standard of protection" (e.g., "protect human health and the environment"). In contrast, state regulations applicable to CCR structures that would be applied by a CCR Permit Program created under this new approach would not explicitly be required to do so. Each state arguably could apply its own standard of protection. The absence of an explicit statement in the bills has implications for how EPA might exercise its authority in the event of absent or deficient state action.
Given the potential for similar legislation to be proposed in the 113th Congress, and as a result of the complexities inherent in creating a regulatory program using a new legislative approach (that specifies new roles for states and EPA), this report provides additional background information and expands on an earlier CRS analysis.