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Thursday, December 20, 2012

H.R. 2273 and S. 3512: Analysis of Proposals to Create a Coal Combustion Residuals Permit Program Under RCRA

Linda Luther
Analyst in Environmental Policy

On October 14, 2011, the House passed the Coal Residuals Reuse and Management Act (H.R. 2273). The bill would amend Subtitle D of the Solid Waste Disposal Act, more commonly referred to as the Resource Conservation and Recovery Act (RCRA), by adding Section 4011, Management and Disposal of Coal Combustion Residuals. On August 2, 2012, the Coal Ash Recycling and Oversight Act of 2012 was introduced in the Senate (S. 3512). Both amendments would create a state-implemented permit program for the management and disposal of coal combustion residuals (CCRs).

Permit programs are used as a tool to ensure that certain federal regulations are consistently enforced. When created under RCRA, those federal regulations are intended to achieve a consistent standard of protection from threats associated with waste disposal facilities. Pursuant to directive in RCRA, the Environmental Protection Agency (EPA) has identified protective measures necessary to address such risks, promulgated regulations incorporating those criteria, and approved state-implemented programs to enforce the criteria. The resulting regulatory program entails two different, but related elements—federal standards intended to provide a required level of protection and the permit program that will implement the standards.

Section 4011, in both bills, would create both the federal standards and the program to implement them, under the umbrella of creating CCR permit program. Established entirely in statute, the program would be unique among environmental laws. The permit program would draw from the regulatory program applicable to municipal solid waste (MSW) landfills. In contrast to the statutory directives and resulting federal requirements associated with that program, the proposed amendments to RCRA include no provisions that would ensure state adoption and implementation of a CCR permit program that would result in the adoption and implementation of minimum federal standards necessary to protect human health and the environment from risks associated with CCR disposal.

Based on the structure of each bill, it would appear that the proposed amendments are intended to create a program similar to the one applicable to MSW landfills. However, it cannot be determined whether states would implement their programs as such. There are complex variables that make that determination difficult. The primary reasons stem from the limited authority that Congress has to require and, given the limits to its authority in the proposed amendments, EPA would have to compel states to implement the program. Also, provisions in each bill lack detail comparable to regulatory standards with regard to key issues such as how, when, or to which facilities the permit program would apply. As a result, program requirements would be subject to the interpretation of each state that chooses to implement it.

Due to the questions regarding how states may implement it, a CCR permit program would be similar to the program to regulate MSW landfill criteria, only in states that choose to implement it as such. That level of uncertainty defeats the purpose of a permit program and would not be consistent with other permit programs created under RCRA. This report is intended to provide Members of Congress and their staff with information to understand why that would be the case.

Date of Report: December 5, 2012
Number of Pages: 44
Order Number: R42847
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