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Wednesday, March 27, 2013

Analysis of Recent Proposals to Amend the Resource Conservation and Recovery Act (RCRA) to Create a Coal Combustion Residuals Permit Program

Linda Luther
Analyst in Environmental Policy

James E. McCarthy
Specialist in Environmental Policy

James D. Werner
Section Research Manager

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 113
th 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 113
th 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.

Date of Report: March 19, 2013
Number of Pages: 86
Order Number: R43003
Price: $29.95

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