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Friday, June 22, 2012

Proposals to Amend RCRA: Analysis of Pending Legislation Applicable to the Management of Coal Combustion Residuals

Linda Luther
Analyst in Environmental Policy

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). 

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.

Date of Report: June 19, 2012
Number of Pages: 40
Order Number: R42570
Price: $29.95

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