[House Report 112-226]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-226

======================================================================



 
                COAL RESIDUALS REUSE AND MANAGEMENT ACT

                                _______
                                

 September 26, 2011.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

         Mr. Upton, from the Committee on Energy and Commerce, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 2273]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 2273) to amend subtitle D of the Solid Waste 
Disposal Act to facilitate recovery and beneficial use, and 
provide for the proper management and disposal, of materials 
generated by the combustion of coal and other fossil fuels, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     6
Background and Need for Legislation..............................     7
Hearings.........................................................     7
Committee Consideration..........................................     8
Committee Votes..................................................     8
Committee Oversight Findings.....................................    11
Statement of General Performance Goals and Objectives............    11
New Budget Authority, Entitlement Authority, and Tax Expenditures    11
Earmark, Tax Benefits, Tariff Benefits...........................    11
Committee Cost Estimate..........................................    11
Congressional Budget Office Estimate.............................    11
Federal Mandates Statement.......................................    14
Advisory Committee Statement.....................................    14
Applicability to Legislative Branch..............................    14
Section-by-Section Analysis of the Legislation...................    14
Changes in Existing Law Made by the Bill, as Reported............    23
Additional Views.................................................    31

                               Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Coal Residuals Reuse and Management 
Act''.

SEC. 2. AMENDMENT TO SUBTITLE D OF THE SOLID WASTE DISPOSAL ACT.

  (a) In General.--Subtitle D of the Solid Waste Disposal Act (42 
U.S.C. 6941 et seq.) is amended by adding at the end the following new 
section:

``SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS.

  ``(a) State Permit Programs for Coal Combustion Residuals.--Each 
State may adopt and implement a coal combustion residuals permit 
program.
  ``(b) State Actions.--
          ``(1) Notification.--Not later than 6 months after the date 
        of enactment of this section (except as provided by the 
        deadline identified under subsection (d)(2)(B)), the Governor 
        of each State shall notify the Administrator, in writing, 
        whether such State will adopt and implement a coal combustion 
        residuals permit program.
          ``(2) Certification.--
                  ``(A) In general.--Not later than 36 months after the 
                date of enactment of this section (except as provided 
                in subsections (f)(1)(A) and (f)(1)(C)), in the case of 
                a State that has notified the Administrator that it 
                will implement a coal combustion residuals permit 
                program, the head of the lead State agency responsible 
                for implementing the coal combustion residuals permit 
                program shall submit to the Administrator a 
                certification that such coal combustion residuals 
                permit program meets the specifications described in 
                subsection (c)(1).
                  ``(B) Contents.--A certification submitted under this 
                paragraph shall include--
                          ``(i) a letter identifying the lead State 
                        agency responsible for implementing the coal 
                        combustion residuals permit program, signed by 
                        the head of such agency;
                          ``(ii) identification of any other State 
                        agencies involved with the implementation of 
                        the coal combustion residuals permit program;
                          ``(iii) a narrative description that provides 
                        an explanation of how the State will ensure 
                        that the coal combustion residuals permit 
                        program meets the requirements of this section;
                          ``(iv) a legal certification that the State 
                        has, at the time of certification, fully 
                        effective statutes, regulations, or guidance 
                        necessary to implement a coal combustion 
                        residuals permit program that meets the 
                        specifications described in subsection (c)(1); 
                        and
                          ``(v) copies of State statutes, regulations, 
                        and guidance described in clause (iv).
          ``(3) Maintenance of 4005(c) or 3006 program.--In order to 
        adopt or implement a coal combustion residuals permit program 
        under this section (including pursuant to subsection (f)), the 
        State agency responsible for implementing a coal combustion 
        residuals permit program in a State shall maintain an approved 
        program under section 4005(c) or an authorized program under 
        section 3006.
  ``(c) Permit Program Specifications.--
          ``(1) Minimum requirements.--The specifications described in 
        this subsection for a coal combustion residuals permit program 
        are as follows:
                  ``(A) The revised criteria described in paragraph (2) 
                shall apply to a coal combustion residuals permit 
                program, except as provided in paragraph (3).
                  ``(B) Each structure shall be, in accordance with 
                generally accepted engineering standards for the 
                structural integrity of such structures, designed, 
                constructed, and maintained to provide for containment 
                of the maximum volumes of coal combustion residuals 
                appropriate for the structure. If a structure is 
                determined by the head of the agency responsible for 
                implementing the coal combustion residuals permit 
                program to be deficient, the head of such agency has 
                authority to require action to correct the deficiency. 
                If the identified deficiency is not corrected, the head 
                of such agency has authority to require that the 
                structure close in accordance with subsection (h).
                  ``(C) The coal combustion residuals permit program 
                shall apply the revised criteria promulgated pursuant 
                to section 4010(c) for location, design, groundwater 
                monitoring, corrective action, financial assurance, 
                closure and post-closure described in paragraph (2) and 
                the specifications described in this paragraph to 
                surface impoundments.
                  ``(D) Constituents for detection monitoring shall 
                include boron, chloride, conductivity, fluoride, pH, 
                sulphate, sulfide, and total dissolved solids.
                  ``(E) If a structure that is classified as posing a 
                high hazard potential pursuant to the guidelines 
                published by the Federal Emergency Management Agency 
                entitled `Federal Guidelines for Dam Safety: Hazard 
                Potential Classification System for Dams' (FEMA 
                Publication Number 333) is determined by the head of 
                the agency responsible for implementing the coal 
                combustion residuals permit program to be deficient 
                with respect to the structural integrity requirement in 
                subparagraph (B), the head of such agency has authority 
                to require action to correct the deficiency. If the 
                identified deficiency is not corrected, the head of 
                such agency has authority to require that the structure 
                close in accordance with subsection (h).
                  ``(F) New structures that first receive coal 
                combustion residuals after the date of enactment of 
                this section shall be constructed with a base located a 
                minimum of two feet above the upper limit of the 
                natural water table.
                  ``(G) In the case of a coal combustion residuals 
                permit program implemented by a State, the State has 
                the authority to inspect structures and implement and 
                enforce such permit program.
          ``(2) Revised criteria.--The revised criteria described in 
        this paragraph are--
                  ``(A) the revised criteria for design, groundwater 
                monitoring, corrective action, closure, and post-
                closure, for structures, including--
                          ``(i) for new structures, and lateral 
                        expansions of existing structures, that first 
                        receive coal combustion residuals after the 
                        date of enactment of this section, the revised 
                        criteria regarding design requirements 
                        described in section 258.40 of title 40, Code 
                        of Federal Regulations; and
                          ``(ii) for all structures that receive coal 
                        combustion residuals after the date of 
                        enactment of this section, the revised criteria 
                        regarding groundwater monitoring requirements 
                        described in subpart E of part 258 of title 40, 
                        Code of Federal Regulations;
                  ``(B) the revised criteria for location restrictions 
                described in--
                          ``(i) for new structures, and lateral 
                        expansions of existing structures, that first 
                        receive coal combustion residuals after the 
                        date of enactment of this section, sections 
                        258.11 through 258.15 of title 40, Code of 
                        Federal Regulations; and
                          ``(ii) for existing structures that receive 
                        coal combustion residuals after the date of 
                        enactment of this section, sections 258.11 and 
                        258.15 of title 40, Code of Federal 
                        Regulations;
                  ``(C) for all structures that receive coal combustion 
                residuals after the date of enactment of this section, 
                the revised criteria for air quality described in 
                section 258.24 of title 40, Code of Federal 
                Regulations; and
                  ``(D) for all structures that receive coal combustion 
                residuals after the date of enactment of this section, 
                the revised criteria for financial assurance described 
                in subpart G of part 258 of title 40, Code of Federal 
                Regulations.
          ``(3) Applicability of certain requirements.--A State may 
        determine that one or more of the requirements of the revised 
        criteria described in paragraph (2) is not needed for the 
        management of coal combustion residuals in that State, and may 
        decline to apply such requirement as part of its coal 
        combustion residuals permit program. If a State declines to 
        apply a requirement under this paragraph, the State shall 
        include in the certification under subsection (b)(2) a 
        description of such requirement and the reasons such 
        requirement is not needed in the State. If the Administrator 
        determines that a State determination under this paragraph does 
        not accurately reflect the needs for the management of coal 
        combustion residuals in the State, the Administrator may treat 
        such State determination as a deficiency under subsection (d).
  ``(d) Written Notice and Opportunity To Remedy.--
          ``(1) In general.--The Administrator shall provide to a State 
        written notice and an opportunity to remedy deficiencies in 
        accordance with paragraph (2) if at any time the State--
                  ``(A) does not satisfy the notification requirement 
                under subsection (b)(1);
                  ``(B) has not submitted a certification under 
                subsection (b)(2);
                  ``(C) does not satisfy the maintenance requirement 
                under subsection (b)(3); or
                  ``(D) is not implementing a coal combustion residuals 
                permit program that meets the specifications described 
                in subsection (c)(1).
          ``(2) Contents of notice; deadline for response.--A notice 
        provided under this subsection shall--
                  ``(A) include findings of the Administrator detailing 
                any applicable deficiencies in--
                          ``(i) compliance by the State with the 
                        notification requirement under subsection 
                        (b)(1);
                          ``(ii) compliance by the State with the 
                        certification requirement under subsection 
                        (b)(2);
                          ``(iii) compliance by the State with the 
                        maintenance requirement under subsection 
                        (b)(3); and
                          ``(iv) the State coal combustion residuals 
                        permit program in meeting the specifications 
                        described in subsection (c)(1); and
                  ``(B) identify, in collaboration with the State, a 
                reasonable deadline, which shall be not sooner than 6 
                months after the State receives the notice, by which 
                the State shall remedy the deficiencies detailed under 
                subparagraph (A).
  ``(e) Implementation by Administrator.--
          ``(1) In general.--The Administrator shall implement a coal 
        combustion residuals permit program for a State only in the 
        following circumstances:
                  ``(A) If the Governor of such State notifies the 
                Administrator under subsection (b)(1) that such State 
                will not adopt and implement such a permit program.
                  ``(B) If such State has received a notice under 
                subsection (d) and, after any review brought by the 
                State under section 7006, fails, by the deadline 
                identified in such notice under subsection (d)(2)(B), 
                to remedy the deficiencies detailed in such notice 
                under subsection (d)(2)(A).
                  ``(C) If such State informs the Administrator, in 
                writing, that such State will no longer implement such 
                a permit program.
          ``(2) Requirements.--If the Administrator implements a coal 
        combustion residuals permit program for a State under paragraph 
        (1), such permit program shall consist of the specifications 
        described in subsection (c)(1).
          ``(3) Enforcement.--If the Administrator implements a coal 
        combustion residuals permit program for a State under paragraph 
        (1), the authorities referred to in section 4005(c)(2)(A) shall 
        apply with respect to coal combustion residuals and structures 
        and the Administrator may use such authorities to inspect, 
        gather information, and enforce the requirements of this 
        section in the State.
  ``(f) State Control After Implementation by Administrator.--
          ``(1) State control.--
                  ``(A) New adoption and implementation by state.--For 
                a State for which the Administrator is implementing a 
                coal combustion residuals permit program under 
                subsection (e)(1)(A), the State may adopt and implement 
                such a permit program by--
                          ``(i) notifying the Administrator that the 
                        State will adopt and implement such a permit 
                        program;
                          ``(ii) not later than 6 months after the date 
                        of such notification, submitting to the 
                        Administrator a certification under subsection 
                        (b)(2); and
                          ``(iii) receiving from the Administrator--
                                  ``(I) a determination that the State 
                                coal combustion residuals permit 
                                program meets the specifications 
                                described in subsection (c)(1); and
                                  ``(II) a timeline for transition of 
                                control of the coal combustion 
                                residuals permit program.
                  ``(B) Remedying deficient permit program.--For a 
                State for which the Administrator is implementing a 
                coal combustion residuals permit program under 
                subsection (e)(1)(B), the State may adopt and implement 
                such a permit program by--
                          ``(i) remedying the deficiencies detailed in 
                        the notice provided under subsection (d)(2)(A); 
                        and
                          ``(ii) receiving from the Administrator--
                                  ``(I) a determination that the 
                                deficiencies detailed in such notice 
                                have been remedied; and
                                  ``(II) a timeline for transition of 
                                control of the coal combustion 
                                residuals permit program.
                  ``(C) Resumption of implementation by state.--For a 
                State for which the Administrator is implementing a 
                coal combustion residuals permit program under 
                subsection (e)(1)(C), the State may adopt and implement 
                such a permit program by--
                          ``(i) notifying the Administrator that the 
                        State will adopt and implement such a permit 
                        program;
                          ``(ii) not later than 6 months after the date 
                        of such notification, submitting to the 
                        Administrator a certification under subsection 
                        (b)(2); and
                          ``(iii) receiving from the Administrator--
                                  ``(I) a determination that the State 
                                coal combustion residuals permit 
                                program meets the specifications 
                                described in subsection (c)(1); and
                                  ``(II) a timeline for transition of 
                                control of the coal combustion 
                                residuals permit program.
          ``(2) Review of determination.--
                  ``(A) Determination required.--The Administrator 
                shall make a determination under paragraph (1) not 
                later than 90 days after the date on which the State 
                submits a certification under paragraph (1)(A)(ii) or 
                (1)(C)(ii), or notifies the Administrator that the 
                deficiencies have been remedied pursuant to paragraph 
                (1)(B)(i), as applicable.
                  ``(B) Review.--A State may obtain a review of a 
                determination by the Administrator under paragraph (1) 
                as if such determination was a final regulation for 
                purposes of section 7006.
          ``(3) Implementation during transition.--
                  ``(A) Effect on actions and orders.--Actions taken or 
                orders issued pursuant to a coal combustion residuals 
                permit program shall remain in effect if--
                          ``(i) a State takes control of its coal 
                        combustion residuals permit program from the 
                        Administrator under paragraph (1); or
                          ``(ii) the Administrator takes control of a 
                        coal combustion residuals permit program from a 
                        State under subsection (e).
                  ``(B) Change in requirements.--Subparagraph (A) shall 
                apply to such actions and orders until such time as the 
                Administrator or the head of the lead State agency 
                responsible for implementing the coal combustion 
                residuals permit program, as applicable--
                          ``(i) implements changes to the requirements 
                        of the coal combustion residuals permit program 
                        with respect to the basis for the action or 
                        order; or
                          ``(ii) certifies the completion of a 
                        corrective action that is the subject of the 
                        action or order.
          ``(4) Single permit program.--If a State adopts and 
        implements a coal combustion residuals permit program under 
        this subsection, the Administrator shall cease to implement the 
        permit program implemented under subsection (e) for such State.
  ``(g) Effect on Determination Under 4005(c) or 3006.--The 
Administrator shall not consider the implementation of a coal 
combustion residuals permit program by the Administrator under 
subsection (e) in making a determination of approval for a permit 
program or other system of prior approval and conditions under section 
4005(c) or of authorization for a program under section 3006.
  ``(h) Closure.--If it is determined, pursuant to a coal combustion 
residuals permit program, that a structure should close, the time 
period and method for the closure of such structure shall be set forth, 
in a schedule, in a closure plan that takes into account the nature and 
the site-specific characteristics of the structure to be closed. In the 
case of a surface impoundment, the closure plan shall require, at a 
minimum, the removal of liquid and the stabilization of remaining 
waste, as necessary to support the final cover.
  ``(i) Authority.--
          ``(1) State authority.--Nothing in this section shall 
        preclude or deny any right of any State to adopt or enforce any 
        regulation or requirement respecting coal combustion residuals 
        that is more stringent or broader in scope than a regulation or 
        requirement under this section.
          ``(2) Authority of the administrator.--
                  ``(A) In general.--Except as provided in subsection 
                (e) of this section and section 6005 of this title, the 
                Administrator shall, with respect to the regulation of 
                coal combustion residuals, defer to the States pursuant 
                to this section.
                  ``(B) Imminent hazard.--Nothing in this section shall 
                be construed to affect the authority of the 
                Administrator under section 7003 with respect to coal 
                combustion residuals.
  ``(j) Mine Reclamation Activities.--A coal combustion residuals 
permit program implemented under subsection (e) by the Administrator 
shall not apply to the utilization, placement, and storage of coal 
combustion residuals at surface mining and reclamation operations.
  ``(k) Definitions.--In this section:
          ``(1) Coal combustion residuals.--The term `coal combustion 
        residuals' means--
                  ``(A) the solid wastes listed in section 
                3001(b)(3)(A)(i), including recoverable materials from 
                such wastes;
                  ``(B) coal combustion wastes that are co-managed with 
                wastes produced in conjunction with the combustion of 
                coal, provided that such wastes are not segregated and 
                disposed of separately from the coal combustion wastes 
                and comprise a relatively small proportion of the total 
                wastes being disposed in the structure;
                  ``(C) fluidized bed combustion wastes;
                  ``(D) wastes from the co-burning of coal with non-
                hazardous secondary materials provided that coal makes 
                up at least 50 percent of the total fuel burned; and
                  ``(E) wastes from the co-burning of coal with 
                materials described in subparagraph (A) that are 
                recovered from monofills.
          ``(2) Coal combustion residuals permit program.--The term 
        `coal combustion residuals permit program' means 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.
          ``(3) Structure.--The term `structure' means a landfill, 
        surface impoundment, or other land-based unit which may receive 
        coal combustion residuals.
          ``(4) Revised criteria.--The term `revised criteria' means 
        the criteria promulgated for municipal solid waste landfill 
        units under section 4004(a) and under section 1008(a)(3), as 
        revised under section 4010(c).''.
  (b) Conforming Amendment.--The table of contents contained in section 
1001 of the Solid Waste Disposal Act is amended by inserting after the 
item relating to section 4010 the following:

``Sec. 4011. Management and disposal of coal combustion residuals.''.

SEC. 3. 2000 REGULATORY DETERMINATION.

  Nothing in this Act, or the amendments made by this Act, shall be 
construed to alter in any manner the Environmental Protection Agency's 
regulatory determination entitled ``Notice of Regulatory Determination 
on Wastes from the Combustion of Fossil Fuels'', published at 65 Fed. 
Reg. 32214 (May 22, 2000), that the fossil fuel combustion wastes 
addressed in that determination do not warrant regulation under 
subtitle C of the Solid Waste Disposal Act (42 U.S.C. 6921 et seq.).

                          Purpose and Summary

    This legislation is intended to facilitate recovery and 
beneficial use, and provide for the proper management and 
disposal, of materials generated by the combustion of coal and 
other fossil fuels. H.R. 2273 facilitates the recovery and 
beneficial use of coal combustion residuals by creating a 
State-based permit program that utilizes the framework and 
requirements of the existing municipal solid waste landfill 
permit program as an enforceable minimum Federal standard for 
the regulation of coal ash. The legislation allows States to be 
more stringent and require criteria in addition to the minimum 
specifications in the bill.
    H.R. 2273 gives States with solid waste permit programs 
already approved under the Solid Waste Disposal Act the option 
to also adopt and implement a coal combustion residuals permit 
program (permit program). A State that intends to implement a 
permit program must notify the Administrator of the 
Environmental Protection Agency (EPA or the Administrator) of 
its intent and must certify to EPA that its permit program 
meets the minimum specifications set out in the legislation. 
The minimum specifications for a permit program are drawn from 
the revised criteria promulgated by EPA for the municipal solid 
waste program, published in Title 40, Part 258 of the Code of 
Federal Regulations. Should a State decide not to adopt and 
implement a permit program, to not continue to implement a 
permit program, or simply fail to implement a permit program, 
EPA would begin a process that involves notifying the State of 
any alleged deficiencies in the State's program and allowing 
the State to refute the allegation or cure any deficiencies. If 
a State fails to remedy any deficiencies, the Administrator, 
using the minimum specifications for a permit program, set out 
in subsection (c) of the bill, would be authorized to assume 
control of a permit program in that State. The legislation also 
provides a mechanism for a State that has ceded control of its 
permit program to EPA to take back the permit program by 
demonstrating that its program complies with the legislation's 
minimum specifications. The legislation ensures that there will 
never be simultaneous regulatory programs for managing coal 
combustion residuals in a State--either the State or EPA will 
manage the program, but never both at the same time.

                  Background and Need for Legislation

    On June 21, 2010, EPA promulgated a proposed rule (75 Fed. 
Reg. 35128) (the Proposed Rule) that set out three regulatory 
options for management of coal combustion residuals. The first 
is regulation of coal combustion residuals under Subtitle C of 
the Solid Waste Disposal Act (also known as the Resource 
Conservation and Recovery Act or RCRA), which regulates 
hazardous waste. Many believe that EPA's proposal to regulate 
combustion residuals under Subtitle C of the Solid Waste 
Disposal Act would place an unwarranted stigma on coal 
combustion residuals and threaten their beneficial reuse. The 
second and third regulatory options are to regulate coal 
combustion residuals under Subtitle D of the Solid Waste 
Disposal Act; the second would phase out the use of surface 
impoundments using retroactive siting and design requirements, 
and the third proposal would allow surface impoundments to 
operate until the end of their useful life. Stakeholders raised 
concerns that the Subtitle D proposals would lead to 
unwarranted, automatic closure of surface impoundments, 
significant job loss, and higher costs for energy generation.

                                Hearings

    On April 14, 2011, the Subcommittee on Environment and the 
Economy held a legislative hearing on H.R. 1391, the Recycling 
Coal Combustion Residuals Accessibility Act of 2011, the 
precursor to H.R. 2273. H.R. 1391 prohibited EPA from 
regulating coal combustion residuals under Subtitle C of the 
Solid Waste Disposal Act. At the April 14, 2011, hearing, the 
Subcommittee received testimony from: The Honorable Mathy 
Stanislaus, Assistant Administrator for Office of Solid Waste 
and Emergency Response, United States Environmental Protection 
Agency; Ms. Mary Zdanowicz, Executive Director, Association of 
State & Territorial Solid Waste Management Officials; Mr. 
Thomas Adams, Executive Director, the American Coal Ash 
Association; Ms. Ari Lewis, Senior Environmental Toxicologist, 
Gradient; Ms. Dawn Santoianni, Senior Quality Engineer, Veritas 
Economic Consulting, LLC; Ms. Lisa Evans, Senior Administrative 
Counsel, Earthjustice; and Mr. Curtis Havens, a citizen of 
Chester, West Virginia. Several witnesses focused on why 
regulation of coal combustion residuals under Subtitle C of 
RCRA is inappropriate, harmful to the economy, and would have a 
negative impact on jobs. Testimony also addressed the stigma of 
a designation of coal combustion residuals as ``hazardous'' and 
how even a proposed rule suggesting coal combustion residuals 
are ``hazardous'' has already and will continue to 
significantly impair recycling and beneficial use of coal 
combustion residuals. Testimony noted that States already 
regulate coal combustion residuals, scientific data do not 
support regulation of coal combustion residuals under Subtitle 
C of RCRA, and that coal combustion residuals routinely fail to 
meet the criteria for regulation as a hazardous waste. 
Witnesses also testified on how significant an impact a 
Subtitle C designation would have on landfill disposal capacity 
and State solid waste program resources because coal ash is the 
second largest waste stream in the country. Other testimony 
criticized current State regulation of coal combustion 
residuals because States do not require composite liners, 
fugitive dust controls, groundwater monitoring, and financial 
assurance and because the structural stability of units for the 
management and disposal of coal combustion residuals are not 
routinely inspected.

                        Committee Consideration

    On April 6, 2011, Representative David McKinley, together 
with other members, introduced H.R. 1391, the Recycling Coal 
Combustion Residuals Accessibility Act of 2011. On June 16, 
2011, the Subcommittee on Environment and the Economy met in 
open markup session to consider H.R. 1391. The bill was not 
called up, and the Subcommittee immediately recessed. On June 
21, 2011, the Subcommittee reconvened and forwarded a 
discussion draft, without amendment, to the Full Committee for 
consideration. During the Subcommittee markup, three amendments 
were offered, but not adopted.
    On June 22, 2011 Representative David McKinley, together 
with other members, introduced the discussion draft as H.R. 
2273.
    On July 11, 2011, July 12, 2011, and July 13, 2011, the 
full Committee on Energy and Commerce met in open markup 
session and considered H.R. 2273. During the markup, Mr. 
Shimkus offered an amendment in the nature of a substitute. 
There were five amendments offered to the amendment in the 
nature of a substitute, which were not adopted. Mr. Shimkus 
then withdrew his amendment in the nature of a substitute and 
offered another amendment in the nature of a substitute, which 
was adopted by voice vote. On July 13, 2011, by a recorded vote 
of 35-12, the Committee ordered H.R. 2273, as amended, 
favorably reported for House consideration.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto. There were two recorded votes taken in connection with 
ordering H.R. 2273 reported. A motion by the Chair to order 
H.R. 2273, as amended, reported to the House was agreed to by a 
recorded vote of 35-12.


                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee held a legislative 
hearing on April 14, 2011, and made findings that are reflected 
in this report.

         Statement of General Performance Goals and Objectives

    The goal and objective of H.R. 2273 is to create a state-
based regulatory program for coal combustion residuals under 
Subtitle D of the Solid Waste Disposal Act.

           New Budget Authority, Entitlement Authority, and 
                            Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
2273, the Coal Residuals Reuse and Management Act, would result 
in no new or increased budget authority, entitlement authority, 
or tax expenditures or revenues.

                                Earmark

    In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, 
the Committee finds that H.R. 2273 contains no earmarks, 
limited tax benefits, or limited tariff benefits.

                        Committee Cost Estimate

    The Committee believes that the adoption of this 
legislation will result in no significant impact to federal 
spending.
    The Congressional Budget Office (CBO) estimates that the 
workload cost to the United States in the fifth year after 
enactment could exceed $500,000. CBO assumes that EPA would 
need to investigate certain State permit programs and that the 
cost of doing so could range from $1 million to $2 million. CBO 
suggests that such reviews would be initiated by a petition 
from a non-governmental environmental advocacy organization or 
other interested party. This assumes that within 5 years of 
enactment, a number of states will fail to implement permit 
programs and that this programmatic failure will be so patent 
and serious that it will require significant EPA resources to 
investigate.
    In the Committee's view, allegations that States are 
failing to implement an otherwise facially adequate permit 
program would not be ripe soon enough to trigger $500,000 or 
more of EPA's workload as early as 2016. However, the Committee 
agrees with CBO that EPA workload resulting from this bill will 
cost less than $500,000 in each of the first 4 years after 
enactment. The Committee also agrees with CBO that the cost to 
the States and the private sector will be well below the 
thresholds established for intergovernmental mandates or 
private sector mandates as defined in the Unfunded Mandates 
Reform Act.

                  Congressional Budget Office Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
provided by the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974:

                                                    August 1, 2011.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2273, the Coal 
Residuals Reuse and Management Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 2273--Coal Residuals Reuse and Management Act of 2011

    Summary: H.R. 2273 would provide for the management and 
disposal of coal combustion residuals (CCR) under subtitle D of 
the Solid Waste Disposal Act, also known as the Resource 
Conservation and Recovery Act (RCRA). (CCR consists of 
inorganic residues that remain after pulverized coal is 
burned.) Consistent with subtitle D of RCRA, this legislation 
would allow states to create and enforce their own CCR permit 
programs while providing the Environmental Protection Agency 
(EPA) with limited authority to review states' permit programs. 
However, H.R. 2273 would enable EPA to directly regulate CCR in 
states that fail to set up their own programs or in states 
where the permit program is determined to be deficient and is 
not subsequently remedied by the state.
    CBO estimates that enacting this legislation would cost $2 
million over the 2012-2016 period, subject to the availability 
of appropriated funds. Enacting H.R. 2273 would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    H.R. 2273 would impose an intergovernmental mandate, as 
defined in the Unfunded Mandates Reform Act (UMRA), by 
requiring states to notify EPA whether they will adopt and 
implement a CCR permit program. CBO estimates that the cost of 
that mandate would fall well below the annual threshold 
established in UMRA ($71 million in 2011, adjusted annually for 
inflation).
    H.R. 2273 contains no private-sector mandates as defined in 
UMRA.
    Estimated cost to the Federal Government: CBO estimates 
that implementing H.R. 2273 would cost EPA $2 million over the 
next five years. The costs of this legislation fall within 
budget function 300 (natural resources and environment).
    Basis of estimate: For this estimate, CBO assumes that H.R. 
2273 will be enacted by the end of fiscal year 2011 and that 
the necessary amounts will be appropriated.

Certification of State CCR permit programs

    Based on information from EPA and other industry experts, 
CBO expects that all states with coal-fired power plants (that 
is, 45 states and Puerto Rico) would most likely elect to 
operate their own programs to manage disposal of the waste 
material. Under this legislation, states would have six months 
after the bill's enactment to notify EPA of their intentions to 
adopt and implement their own CCR permit program; then, within 
three years of the bill's enactment, the state agencies 
responsible for implementing the permit programs would be 
required to submit certifications of the state programs to EPA. 
Because this legislation would not provide EPA with the 
authority to substantially review certifications, CBO estimates 
that EPA's workload for this activity over the 2012-2015 period 
would not be significant. Based on information from EPA, CBO 
estimates that over the 2012-2015 period, EPA would incur costs 
of about $200,000 to $300,000 annually to support the initial 
certification process.

Review of existing State CCR permit programs

    H.R. 2273 would provide EPA with the authority to evaluate 
whether a state's CCR permit program is being implemented 
consistent with the minimum program specifications established 
under the bill. Consequently, EPA's costs to implement the 
legislation could increase beginning in 2016--after state 
programs are certified and operational--to the extent that EPA 
would need to review certain state CCR permit programs for 
deficiencies. According to EPA and other industry experts, such 
reviews could be initiated by a petition for government action 
from an environmental group or other interested parties. While 
it is not likely that EPA would immediately review the CCR 
permit programs for all states, some reviews of programs in 
states with high coal consumption would probably be initiated 
beginning in 2016. Based on information from EPA, CBO estimates 
that reviewing a state program would cost, on average, about 
$165,000 and would generally take less than one year to 
complete. Thus, assuming that EPA would initiate reviews of 
several state CCR permit programs beginning in 2016, CBO 
estimates that work would cost $1 million to $2 million in 
2016. (Additional reviews and EPA costs could occur after 
2016.)
    Pay-As-You-Go considerations: None.
    Estimated impact on state, local, and tribal governments: 
H.R. 2273 would impose an intergovernmental mandate as defined 
in UMRA. The bill would require states to notify EPA whether 
they will adopt and implement a CCR permit program. CBO 
estimates that the cost of that notification requirement would 
be small and well below the threshold established for 
intergovernmental mandates ($71 million in 2011, adjusted 
annually for inflation). If states chose to adopt and implement 
a CCR permit program, any costs they incurred would result from 
participation in a voluntary federal program and not from the 
requirements of an intergovernmental mandate.
    Estimated impact on the private sector: H.R. 2273 contains 
no private-sector mandates as defined in UMRA.
    Estimate prepared by: Federal costs: Susanne S. Mehlman and 
Susan Willie; Impact on state, local, and tribal governments: 
Ryan Miller; Impact on the private sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    This legislation creates no advisory committees within the 
meaning of section 5(b) of the Federal Advisory Committee Act.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Sec. 1. Short title

    This section entitles the Act as the ``Coal Residuals Reuse 
and Management Act.''

Sec. 2. Amendment to Subtitle D of the Solid Waste Disposal Act

    Section 2 amends Subtitle D of the Solid Waste Disposal Act 
(42 U.S.C. 6941 et seq.) by adding a new section, section 4011, 
Management and Disposal of Coal Combustion Residuals.
    Subsection (a) of new section 4011 permits States to choose 
whether to adopt and implement a permit program, as defined in 
subsection (k) paragraph (2) of H.R. 2273. It is the intent of 
the Committee that a permit program be adopted and implemented 
in every State that generates, stores, disposes of, or uses 
coal combustion residuals. The Committee believes that States 
are best situated to structure a permit program. The Committee 
intends for H.R. 2273 to provide States flexibility regarding 
their individual permit programs while ensuring that the States 
have the necessary authorities and procedures, including 
staffing and technical capabilities, to allow them to implement 
a permit program that meets the minimum specifications set out 
in this bill.
    Subsection (b) of new section 4011 sets out the 
requirements a State must comply with to adopt and implement a 
permit program. Paragraph (b)(1) requires a State that intends 
to adopt and implement a coal combustion residuals permit 
program to notify EPA within six months of enactment of H.R. 
2273 that it intends to do so.
    Paragraph (b)(2) of new section 4011 requires States that 
intend to adopt and implement a permit program to certify to 
EPA, within 36 months of enactment of H.R. 2273, that its 
permit program meets the specifications set out in this bill. 
The certification must identify the lead State agency 
responsible for implementing the permit program and any other 
State agencies involved. The certification also must contain a 
narrative explanation of how the State permit program will meet 
the specifications. Paragraph (b)(2) further requires that each 
State that intends to implement a permit program provide a 
legal certification that it has fully effective statutes, 
regulations, or guidance necessary to carry out the permit 
program. The Committee intends that States will have the 
appropriate statutes, regulations, or guidance in effect at the 
time of the certification. The Committee also acknowledges 
that, consistent with the State Implementation Rule for the 
Part 258 municipal solid waste landfill permit program [40 CFR 
Part 239], a legal certification may be signed by either the 
State Attorney General or independent legal counsel designated 
by the State.
    Paragraph (b)(3) of new section 4011 provides that in order 
to adopt or implement a permit program, the State must maintain 
an approved program for municipal solid waste under section 
4005(c) or an authorized hazardous waste program under section 
3006 of the Solid Waste Disposal Act. [In the Committee's view 
States with an approved program under section 4005(c) or an 
authorized program under section 3006 of the Solid Waste 
Disposal Act have already adequately demonstrated to the 
Administrator that they are capable of administering such 
permit programs.] [The Committee believes that States that are 
approved under 4005(c) or authorized by 3006 have established 
sufficient evidence of their capability to implement a permit 
program.] Upon submission of its certification, a State may 
immediately commence or continue the implementation of a permit 
program. States that are already implementing a permit program 
may continue to operate the program while the State completes 
the certification process.
    Subsection (c) of new section 4011 lays out the minimum 
Federal standards for any permit program. Paragraph (c)(1) 
describes the specifications for a permit program as follows:
    Subparagraph (A) of paragraph (c)(1) of new section 4011 
requires that specific provisions of the revised criteria (for 
design, ground water monitoring, corrective action, closure, 
and post-closure) be applied as part of a State permit program. 
A State permit program may apply any of the revised criteria in 
40 CFR, Part 258. Paragraph (c)(2) highlights parts of 40 CFR 
Part 258 that apply to all permit programs, subject to new 
section 4011 (c)(3), which allows States to determine that, on 
a programmatic basis, certain revised criteria are not 
appropriate.
    Subparagraph (B) of paragraph (c)(1) of new section 4011 
requires structural stability assessments for structures used 
for the storage and disposal of coal combustion residuals. The 
Committee intends for States to incorporate this requirement 
into permit programs to ensure that structures are not only 
designed and constructed properly, but also maintained so as to 
remain structurally sound. The design, construction, and 
maintenance of structures are to be assessed in accordance with 
generally accepted engineering standards. The Committee intends 
that the terms ``generally accepted engineering standards'' 
have the same meaning as the terms ``recognized and generally 
accepted good engineering practices'' as used in EPA's Proposed 
Rule. EPA defines ``recognized and generally accepted good 
engineering practices'' as ``engineering, operation, or 
maintenance activities based on established codes, standards, 
published technical reports or recommended practices or a 
similar document. Recognized and generally accepted good 
engineering practices detail generally approved ways to perform 
specific engineering, inspection or mechanical integrity 
activities.'' This subparagraph provides the head of an agency 
responsible for implementing a permit program with authority to 
determine whether structural integrity is deficient based on 
these recognized and generally accepted good engineering 
practices. This subparagraph also provides authority to require 
corrective action for such deficiency and authorizes the 
permitting agency to require closure (pursuant to subsection 
(h)) if corrective action is not possible for the identified 
deficiency.
    Subparagraph (C) of paragraph (c)(1) of new section 4011 
applies specific parts of the revised criteria (location, 
design, groundwater monitoring, corrective action, financial 
assurance, closure and post-closure), which were originally 
promulgated by EPA for municipal solid waste landfills, to 
surface impoundments used for the storage and disposal of coal 
combustion residuals. The Committee notes that the revised 
criteria promulgated by EPA for municipal solid waste 
landfills, 40 CFR, Part 258, are based on the standard that the 
criteria be protective of human health and the environment.
    Subparagraph (D) of paragraph (c)(1) of new section 4011 
sets out the groundwater detection monitoring constituents 
relevant to coal combustion residuals, and includes some 
constituents not identified in the revised criteria, namely, 
boron, chloride, conductivity, fluoride, pH, sulphate, sulfide, 
and total dissolved solids.
    Subparagraph (E) of paragraph (c)(1) of new section 4011 
sets out the authority of each permit program to determine 
whether structures classified as posing a ``high hazard 
potential''--using the Federal Emergency Management Agency 
Federal Guidelines for Dam Safety: Hazard Potential 
Classification System for Dams, (FEMA Publication Number 333)--
are deficient based upon structural integrity assessments and 
if so, to require corrective action for such deficiency. This 
subparagraph also authorizes the permitting authority to 
require closure (pursuant to subsection (h) of the bill) if 
corrective action is not possible for the identified 
deficiency.
    Subparagraph (F) of paragraph (c)(1) of new section 4011 
provides that new structures that receive coal combustion 
residuals after the date of enactment must be constructed with 
a minimum base of 2 feet above the upper limit of the water 
table. This subparagraph ensures that the location restrictions 
in the revised criteria are sufficient to address coal 
combustion residuals and surface impoundments.
    Subparagraph (G) of paragraph (c)(1) of new section 4011 
acknowledges State authority to inspect structures and enforce 
a coal combustion residuals permit program.
    Paragraph (c)(2) of new section 4011 identifies specific 
provisions of the revised criteria that are to be applied as 
part of all permit programs. This paragraph delineates a subset 
of the revised criteria as part of the minimum Federal baseline 
applicable to all coal combustion residuals permit programs. 
While H.R. 2273 expressly requires certain elements of the 
revised criteria to be included in any coal combustion 
residuals permit program, the Committee intends that States may 
apply any of the revised criteria, promulgated by the 
Administrator as necessary to protect human health and the 
environment under RCRA sections 4004(a) and 1008(a)(3) and 
revised under section 4010(c) of RCRA, published at 40 CFR Part 
258.
    Subparagraph (A) of paragraph (c)(2) of new section 4011 
specifically includes the revised criteria from 40 CFR Part 258 
for design, groundwater monitoring, corrective action, closure, 
and post-closure. A permit program must include design criteria 
in 40 CFR 258.40 for new structures and lateral expansions of 
structures that begin receiving coal combustion residuals after 
the date of enactment and must require that all structures that 
receive coal combustion residuals after the date of enactment 
have groundwater monitoring as described in 40 CFR 258 subpart 
E.
    Subparagraph (B) of paragraph (c)(2) of new section 4011 
requires a permit program to have location restrictions 
appropriate to the type of structure. The Committee recognizes 
that new structures and lateral expansions of existing 
structures require different siting restrictions from those 
applicable for existing structures. New structures and lateral 
expansions of existing structures that begin receiving coal 
combustion residuals after the date of enactment must comply 
with the location restrictions in 40 CFR 258.11 through 258.15. 
Permitting of existing structures need only include the 
location restrictions in 40 CFR 258.11 and 258.15.
    Subparagraph (C) of paragraph (c)(2) of new section 4011 
requires a permit program to include the requirements in 40 CFR 
Part 258.24. While the Committee considers the applicable Clean 
Air Act provisions and individual State fugitive dust 
requirements adequate to address any potential dust issues with 
coal combustion residuals structures, the bill does require 
that structures that receive coal combustion residuals after 
enactment comply with the revised criteria for air quality 
described in section 40 CFR 258.24.
    Subparagraph (D) of paragraph (c)(2) of new section 4011 
requires a permit program to include the financial assurance 
requirements in section 40 CFR 258 subpart G.
    Paragraph (c)(3) of new section 4011 allows States to 
determine that certain elements of the revised criteria set 
forth in paragraph (c)(2) are not needed for the management of 
coal combustion residuals under the States' permit program and 
a State may decline to apply those particular criteria to the 
entire permit program. Whether or not a State determines that a 
requirement of the revised criteria is not needed for its 
permit program, nothing in this subsection limits the ability 
of permitting authorities to tailor application of the criteria 
on a permit-by-permit basis.
    Subsection (d) of new section 4011 requires the 
Administrator to provide written notice to a State that fails 
to take certain actions and allows a State that receives 
written notice from the Administrator an opportunity to remedy 
any deficiency identified. The Administrator's notice 
requirement is triggered if a State fails to: (A) notify the 
Administrator regarding whether it intends to adopt and 
implement a permit program within six months of the date of 
enactment; (B) submit a certification that its permit program 
meets the minimum specifications within 36 months of the date 
of enactment; (C) maintain either an approved Municipal Solid 
Waste permit program under section 4005(c) of the Solid Waste 
Disposal Act or a hazardous waste permit program under section 
3006 of the Solid Waste Disposal Act; or (D) implement a permit 
program. After certifying to the Administrator that it has the 
requisite statutes, regulations, or guidance in place, a State 
will need a reasonable time period to fully implement a permit 
program and begin issuing and enforcing permits. Because the 
legislation provides deference to States for the regulation of 
coal combustion residuals, the Committee expects that before 
EPA sends written notice under subsection (d) of new section 
4011, EPA will communicate with the State regarding any alleged 
failure to implement a permit program and will consider 
carefully the State's perspective. This deference to the State 
is required by subsection (i) of new section 4011.
    Paragraph (2) of subsection (d) of new section 4011 details 
the contents of a written notice provided by the Administrator 
to a State that fails to take actions identified in paragraph 
(d)(1). The Committee intends that the Administrator include in 
the written notice, the Agency's findings regarding whether a 
State: failed to comply with the notification requirement under 
subsection (b)(1); failed to comply with the certification 
requirement under subsection (b)(2); failed to comply with the 
maintenance requirement under subsection (b)(3); or is not 
implementing a permit program that meets the minimum 
specifications under subsection (c)(1). This subsection also 
requires the Administrator to collaborate with a State that 
receives a written notice to set a reasonable deadline for the 
State to remedy any deficiencies identified by the 
Administrator in the notice. The deadline may not be sooner 
than six months from the date the State receives the written 
notice.
    Subsection (d), paragraph (2) of new section 4011 sets 
forth the factors that may be contained in a notice from the 
Administrator to a State detailing the Agency's position that a 
State's permit program is deficient, including that a State's 
program does not meet the minimum permit program specifications 
set forth in paragraph (c)(1) of H.R. 2273. The Administrator's 
evaluation of a State program is limited to the specifications 
set forth in paragraph (c)(1). The Administrator may not assert 
that a State's program is deficient based upon a claim that the 
program does not contain a requirement not specifically set 
forth in paragraph (c)(1).
    Subsection (e) of new section 4011 requires the 
Administrator to implement and administer a permit program for 
a State in only three (3) circumstances: (1) the Governor of a 
State notifies the Administrator that such State will not adopt 
and implement its own permit program; (2) the State receives a 
notice of deficiency under subsection (d) and after completion 
of judicial review under section 7006 of the Solid Waste 
Disposal Act, fails to remedy the deficiency by the date agreed 
upon by the State and the Administrator; or (3) a State informs 
the Administrator that such State no longer wishes to implement 
a permit program.
    Subsection (e) further provides that in circumstances where 
the Administrator implements a permit program for a State under 
subsection (e), such a permit program be confined to the 
program specifications set forth in subsection (c)(1) of the 
bill. H.R. 2273 does not authorize a program implemented by the 
Administrator to include requirements not specifically 
identified in subsection (c)(1).
    When the Administrator is implementing a permit program 
under this subsection, the legislation provides EPA with the 
inspection and enforcement authorities referred to in 
4005(c)(2)(A) of the Solid Waste Disposal Act. The authorities 
referred to in section 4005(c)(2)(A) of the Solid Waste 
Disposal Act are those in sections 3007 and 3008 of the Solid 
Waste Disposal Act. Absent an imminent hazard addressed by EPA 
under section 7003 of the Solid Waste Disposal Act, nothing in 
new section 4011 grants EPA inspection and enforcement 
authority in States whose permit programs have not been assumed 
by the Administrator pursuant to the provisions of subsection 
(e).
    Subsection (f) of new section 4011 sets out the procedural 
requirements States must follow to regain control of their 
permit program. Subparagraph (1)(A) provides that if EPA is 
implementing a permit program because the Governor notified the 
Administrator that such State did not intend to adopt and 
implement a permit program, a State may resume control of its 
permit program by: (1) notifying EPA of its intent to adopt and 
implement a permit program; (2) certifying to EPA within six 
months of notification, pursuant to the requirements provided 
in subsection (b)(2) of H.R. 2273, that its program meets the 
minimum specifications for a permit program; and (3) receiving 
from the Administrator a determination that the State's permit 
program meets the minimum program specifications described in 
subsection (c)(1) of H.R. 2273 and a timeline for transition of 
control of the permit program from the Administrator to the 
State agency responsible for implementing the State's permit 
program.
    Subparagraph (B) of paragraph (f)(1) of new section 4011 
provides that, if the Administrator is implementing a permit 
program because a State failed to remedy an identified 
deficiency with its permit program, a State may take back 
control of its permit program by: (1) correcting deficiencies 
identified by the Administrator; and (2) receiving a 
determination from the Administrator that the State adequately 
remedied any deficiencies in the permit program and a timeline 
for transition of control of the permit program from the 
Administrator to the State official responsible for operating 
the State's permit program.
    Subparagraph (C) of paragraph (f)(1) of new section 4011 
provides that, if the Administrator is implementing a permit 
program because a State informed the Administrator that the 
State will no longer implement its own permit program, a State 
may resume implementation of its permit program by: (1) 
notifying the Administrator of its intent to adopt and 
implement a permit program; (2) providing the Administrator, 
within 6 months of its notification, a certification pursuant 
to the requirements provided in paragraph (2) of subsection 
(b); and (3) receiving a determination from the Administrator 
that the State's permit program meets the minimum program 
specifications described in paragraph (1) of subsection (c) and 
a timeline for transition of control of the permit program from 
the Administrator to the State official responsible for 
operating the State's permit program.
    Subparagraph (A) of paragraph (f)(2) of new section 4011 
provides that if a State begins the process of taking control 
of a permit program from the Administrator by submitting a 
certification, or notifies the Administrator that it has 
corrected any identified deficiencies with its permit program, 
the Administrator, within 90 days of the date on which a State 
initiates the process of taking back its permit program, is 
required to make a determination as to whether the relevant 
statutory criteria have been met for a State to take over 
control of its permit program.
    Subparagraph (B) of paragraph (f)(2) of new section 4011 
allows a State to obtain a review of the Administrator's 
determination of whether a State may take over implementation 
of its permit program as if such determination were a final 
regulation subject to judicial review under section 7006 of the 
Solid Waste Disposal Act. A determination made by the 
Administrator under subsection (f)(2)(B) of new section 4011 is 
considered a final regulation for purposes of section 7006 of 
the Solid Waste Disposal Act and is subject to judicial review.
    Paragraph (3) of subsection (f) of new section 4011 
provides that during the transition of control of a permit 
program between a State and the Administrator, actions taken 
and orders issued remain in effect. This provision was included 
to prevent a gap in regulation. Control will remain with the 
entity transferring the permit program until the entity 
assuming the program is able to fully implement the permit 
program. Subparagraphs (A) and (B) require existing actions, 
orders, or permits issued pursuant to a permit program to 
remain in effect until the entity assuming control of the 
permit program: (1) implements changes to the requirements of 
the permit program with respect to the basis for the action or 
order or (2) certifies the completion of a corrective action 
that is the subject of the action or order.
    Paragraph (4) of subsection (f) of new section 4011 
requires that there be only one permit program in each State at 
any given time. Therefore, H.R. 2273 requires that if a State 
regains control of a permit program from the Administrator, the 
Administrator cease to implement permit program.
    Subsection (g) of new section 4011 prohibits the 
Administrator from considering the implementation of a permit 
program in making a determination under section 4005(c) or 3006 
of this title. The Committee intends that if the Administrator 
is implementing a permit program under subsection (e) of new 
section 4011 in a State, the Administrator may not use that 
fact against a State in approving or withdrawing approval for a 
Municipal Solid Waste permit program under section 4005(c) of 
the Solid Waste Disposal Act or issuing or withdrawing 
authorization under section 3006 of the Solid Waste Disposal 
Act for a hazardous waste program.
    Subsection (h) of new section 4011 states that if, pursuant 
to a permit program, it is determined that a structure should 
close, the time period and method for the closure of such 
structure shall be set forth in a schedule that is part of a 
site-specific closure plan that takes into account the location 
and characteristics of the structure to be closed. In the case 
of surface impoundments, this subsection requires the closure 
plan, at a minimum, to address the removal of liquid and the 
stabilization of remaining waste, as necessary to support the 
final cover. The Committee recognizes that whether, and to what 
degree, dewatering of an impoundment and/or stabilization of 
the remaining coal combustion residuals is necessary to support 
a final cover will likely involve a site specific engineering 
evaluation that should be part of the closure plan. The 
Committee also recognizes that based on an engineering 
evaluation that may be part of the closure plan, stabilization 
beyond dewatering may not be necessary to support a final cover 
system.
    The Committee intends that closure of structures for the 
management and disposal of coal combustion residuals, as 
defined in paragraph (k)(3), involves a range of site-specific 
factors and that the closure timeframes applicable to municipal 
solid waste landfills under 40 CFR, Part 258 of Title 40 may 
not be appropriate. For example, municipal solid waste landfill 
closure requirements in Part 258 allow 180 days for closure, 
but the closure of surface impoundments containing coal 
combustion residuals may take significantly longer because 
dewatering and draining the liquid must be done gradually. This 
subsection ensures that if a permitting authority determines 
that a coal combustion waste structure must close, closure 
requirements take into account site-specific factors and the 
closure plan takes into account the time needed to address the 
issue of alternate disposal capacity to replace the closed 
structure.
    The Committee also understands that coal combustion 
residual impoundments often serve a wastewater management 
function by receiving and handling water from other power plant 
processes, including storm water run-off. The Committee 
anticipates that a closure plan, issued pursuant to this 
subsection, would recognize this ancillary function and provide 
a reasonable time for alternative wastewater treatment 
facilities to be permitted and constructed.
    Subsection (i) of the new section 4011 provides that 
nothing in new section 4011 of the Solid Waste Disposal Act 
precludes or denies any right of any State to adopt or enforce 
any regulation or requirement, respecting coal combustion 
residuals, that is more stringent or broader in scope than a 
regulation or requirement required under new section 4011 of 
the Solid Waste Disposal Act. This provision is consistent with 
other subtitles of the Solid Waste Disposal Act that allow 
States to be more stringent than the Federal baseline 
established by this legislation.
    Paragraph (2)(A) of subparagraph (i) of new section 4011 
requires that, with respect to the regulation of coal 
combustion residuals, the Administrator defer regulation to the 
States unless the Administrator is regulating coal combustion 
residuals in a State pursuant to a program authorized under 
subsection (e) of new section 4011 or as part of the 
Administrator's authorities regarding Federally-funded projects 
involving procurement of cement or concrete under section 6005 
of the Solid Waste Disposal Act. The Committee understands that 
a blanket prohibition on the authority of the Administrator to 
regulate coal combustion residuals under any subtitle of the 
Solid Waste Disposal Act could have adverse impacts where State 
laws preclude a State from regulating more stringently than the 
Administrator. This provision also precludes the Administrator 
from finalizing the proposed coal combustion residual 
regulations promulgated on June 21, 2011, and prohibits the 
Administrator from promulgating any additional regulations to 
regulate coal combustion residuals.
    Paragraph (2)(B) of subparagraph (i) of new section 4011 
states that nothing in this section shall be construed to 
affect the authority of the Administrator under section 7003 of 
the Solid Waste Disposal Act to address imminent and 
substantial endangerments to health or the environment with 
respect to the disposal of coal combustion residuals.
    Subparagraph (j) of the new section 4011 states that a 
permit program implemented by the Administrator under 
subsection (e) of new section 4011 shall not apply to the 
utilization, placement, and storage of coal combustion 
residuals at surface mining and reclamation operations. The 
Department of the Interior, Office of Surface Mining 
Reclamation and Enforcement under the Surface Mining Control 
and Reclamation Act (SMCRA) (30 U.S.C. 1234 et seq.) governs 
the utilization, placement, and storage of coal combustion 
residuals at surface mining and reclamation operations. In 
addition, several States utilize their solid waste laws and 
regulations to govern the utilization, placement, and storage 
of coal combustion residuals at surface mining and reclamation 
operations and the legislation does not affect such State 
authorities.
    Subsection (k) of new section 4011 identifies the following 
terms and states their meaning:
    Paragraph (1) of subsection (k) defines ``coal combustion 
residuals'' to include those solid wastes identified in Section 
3001(b)(3)(A)(i) of the Solid Waste Disposal Act, including 
recoverable materials from such wastes. Section 
3001(b)(3)(A)(I) defines these wastes to be: fly ash waste, 
bottom ash waste, slag waste, and flue gas emissions control 
waste generated primarily from the combustion of coal or other 
fossil fuels. ``Coal combustion residuals'' also includes other 
non-hazardous wastes: (1) coal combustion waste when co-managed 
with certain other wastes produced in conjunction with the 
combustion of coal, provided that such wastes are not 
segregated and disposed of separately from the coal combustion 
wastes and comprise a relatively small proportion of the total 
wastes being disposed of in the structure; (2) fluidized bed 
combustion wastes; (3) wastes from co-burning coal with non-
hazardous secondary materials provided that coal makes up at 
least 50% of the total fuel burned; and (4) wastes that are 
recovered from monofills, which consist of wastes from co-
burning coal with fly ash waste, bottom ash waste, slag waste, 
and flue gas emissions control waste generated primarily from 
the combustion of coal or other fossil fuels.
    Paragraph (2) of subsection (k) defines ``coal combustion 
residuals permit program'' to mean a permit program that is 
adopted by a State or, as conditioned in this bill by the 
Administrator, for a State for the management and disposal of 
coal combustion residuals to the extent such activities occur 
in structures in such State. The limitation in the definition, 
``to the extent such activities occur in structures in such 
State'' is included because States where coal is not produced 
or burned for electricity, or where coal combustion residuals 
are not stored or disposed of, may not need a permit program.
    Paragraph (3) of subsection (k) defines ``structure'' to 
include landfills, surface impoundments, or other land-based 
units which may receive coal combustion residuals, including 
both wet and dry surface impoundments. The Committee is aware 
that 40 CFR, Part 258 was promulgated by the Administrator to 
regulate municipal solid waste landfills. The Committee, 
however, intends this legislation to govern all land-based 
disposal units for coal combustion residuals and believes that 
the requirements in 40 CFR Part 258 are adaptable and 
appropriate for disposal of coal combustion residuals in 
structures other than solid waste landfills. The Committee 
believes that this legislation closes any perceived gaps 
between the requirements of 40 CFR Part 258 and what is 
required to regulate land-based disposal units other than solid 
waste landfills.
    The Committee does not intend to include in the definition 
of ``structure,'' land-based units at coal-fired electric power 
plants--such as cooling water, polishing, or storm water 
ponds--which receive small or incidental amounts of, and are 
not intended to serve as disposal structures for, coal 
combustion residuals.
    Paragraph (4) of subsection (k) defines the term `revised 
criteria' to mean the criteria promulgated for Municipal Solid 
Waste landfill units under 4004(a) of the Solid Waste Disposal 
Act and under 1008(a)(3) of the Solid Waste Disposal Act, as 
revised under section 4010(c) of the Solid Waste Disposal Act. 
The Committee believes that it is not necessary for EPA to 
promulgate new regulations. EPA acknowledged in the Proposed 
Rule that the ``part 258 criteria represent a reasonable 
balance between ensuring the protection of human health and the 
environment from the risks of these wastes and the practical 
realities of facilities' ability to implement the criteria.''
    The Committee expects that permit programs using the 
minimum Federal baseline established by this legislation will 
meet the standard of protecting human health and the 
environment, and notes that the `revised criteria' that serve 
as the baseline for permit programs consist of criteria that 
the Administrator promulgated pursuant to sections 1008(a)(3), 
4004(a), and 4010(c) of RCRA--and which require that the 
Agency's promulgated regulations provide:

        ``. . . for the protection of public health and the 
        environment. . . .'' [1008(a)];

        ``. . . no reasonable probability of adverse effects on 
        health or the environment'' [4004(a)]; and

        ``the criteria . . . necessary to protect human health 
        and the environment. . . .'' [4010(c)].

    Finally, while H.R. 2273 does not preclude EPA from 
revising the criteria in Part 258, such future revisions to 
Part 258 would apply to the entire municipal solid waste 
landfill program.

Sec. 3. 2000 Regulatory determination

    This section provides that nothing in H.R. 2273 shall be 
construed to alter EPA's regulatory determination entitled 
``Notice of Regulatory Determination on Wastes from the 
Combustion of Fossil Fuels,'' published at 65 Fed. Reg. 32214 
(May 22, 2000).

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                        SOLID WASTE DISPOSAL ACT


                     TITLE II--SOLID WASTE DISPOSAL


                   SHORT TITLE AND TABLE OF CONTENTS

  Sec. 1001. This title (hereinafter in this title referred to 
as ``this Act''), together with the following table of 
contents, may be cited as the ``Solid Waste Disposal Act'':

                     Subtitle A--General Provisions

Sec. 1001. Short title and table of contents.
     * * * * * * *

             Subtitle D--State or Regional Solid Waste Plans

Sec. 4001. Objectives of subtitle.
     * * * * * * *
Sec. 4011. Management and disposal of coal combustion residuals.

           *       *       *       *       *       *       *


Subtitle D--State or Regional Solid Waste Plans

           *       *       *       *       *       *       *


SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS.

  (a) State Permit Programs for Coal Combustion Residuals.--
Each State may adopt and implement a coal combustion residuals 
permit program.
  (b) State Actions.--
          (1) Notification.--Not later than 6 months after the 
        date of enactment of this section (except as provided 
        by the deadline identified under subsection (d)(2)(B)), 
        the Governor of each State shall notify the 
        Administrator, in writing, whether such State will 
        adopt and implement a coal combustion residuals permit 
        program.
          (2) Certification.--
                  (A) In general.--Not later than 36 months 
                after the date of enactment of this section 
                (except as provided in subsections (f)(1)(A) 
                and (f)(1)(C)), in the case of a State that has 
                notified the Administrator that it will 
                implement a coal combustion residuals permit 
                program, the head of the lead State agency 
                responsible for implementing the coal 
                combustion residuals permit program shall 
                submit to the Administrator a certification 
                that such coal combustion residuals permit 
                program meets the specifications described in 
                subsection (c)(1).
                  (B) Contents.--A certification submitted 
                under this paragraph shall include--
                          (i) a letter identifying the lead 
                        State agency responsible for 
                        implementing the coal combustion 
                        residuals permit program, signed by the 
                        head of such agency;
                          (ii) identification of any other 
                        State agencies involved with the 
                        implementation of the coal combustion 
                        residuals permit program;
                          (iii) a narrative description that 
                        provides an explanation of how the 
                        State will ensure that the coal 
                        combustion residuals permit program 
                        meets the requirements of this section;
                          (iv) a legal certification that the 
                        State has, at the time of 
                        certification, fully effective 
                        statutes, regulations, or guidance 
                        necessary to implement a coal 
                        combustion residuals permit program 
                        that meets the specifications described 
                        in subsection (c)(1); and
                          (v) copies of State statutes, 
                        regulations, and guidance described in 
                        clause (iv).
          (3) Maintenance of 4005(c) or 3006 program.--In order 
        to adopt or implement a coal combustion residuals 
        permit program under this section (including pursuant 
        to subsection (f)), the State agency responsible for 
        implementing a coal combustion residuals permit program 
        in a State shall maintain an approved program under 
        section 4005(c) or an authorized program under section 
        3006.
  (c) Permit Program Specifications.--
          (1) Minimum requirements.--The specifications 
        described in this subsection for a coal combustion 
        residuals permit program are as follows:
                  (A) The revised criteria described in 
                paragraph (2) shall apply to a coal combustion 
                residuals permit program, except as provided in 
                paragraph (3).
                  (B) Each structure shall be, in accordance 
                with generally accepted engineering standards 
                for the structural integrity of such 
                structures, designed, constructed, and 
                maintained to provide for containment of the 
                maximum volumes of coal combustion residuals 
                appropriate for the structure. If a structure 
                is determined by the head of the agency 
                responsible for implementing the coal 
                combustion residuals permit program to be 
                deficient, the head of such agency has 
                authority to require action to correct the 
                deficiency. If the identified deficiency is not 
                corrected, the head of such agency has 
                authority to require that the structure close 
                in accordance with subsection (h).
                  (C) The coal combustion residuals permit 
                program shall apply the revised criteria 
                promulgated pursuant to section 4010(c) for 
                location, design, groundwater monitoring, 
                corrective action, financial assurance, closure 
                and post-closure described in paragraph (2) and 
                the specifications described in this paragraph 
                to surface impoundments.
                  (D) Constituents for detection monitoring 
                shall include boron, chloride, conductivity, 
                fluoride, pH, sulphate, sulfide, and total 
                dissolved solids.
                  (E) If a structure that is classified as 
                posing a high hazard potential pursuant to the 
                guidelines published by the Federal Emergency 
                Management Agency entitled ``Federal Guidelines 
                for Dam Safety: Hazard Potential Classification 
                System for Dams'' (FEMA Publication Number 333) 
                is determined by the head of the agency 
                responsible for implementing the coal 
                combustion residuals permit program to be 
                deficient with respect to the structural 
                integrity requirement in subparagraph (B), the 
                head of such agency has authority to require 
                action to correct the deficiency. If the 
                identified deficiency is not corrected, the 
                head of such agency has authority to require 
                that the structure close in accordance with 
                subsection (h).
                  (F) New structures that first receive coal 
                combustion residuals after the date of 
                enactment of this section shall be constructed 
                with a base located a minimum of two feet above 
                the upper limit of the natural water table.
                  (G) In the case of a coal combustion 
                residuals permit program implemented by a 
                State, the State has the authority to inspect 
                structures and implement and enforce such 
                permit program.
          (2) Revised criteria.--The revised criteria described 
        in this paragraph are--
                  (A) the revised criteria for design, 
                groundwater monitoring, corrective action, 
                closure, and post-closure, for structures, 
                including--
                          (i) for new structures, and lateral 
                        expansions of existing structures, that 
                        first receive coal combustion residuals 
                        after the date of enactment of this 
                        section, the revised criteria regarding 
                        design requirements described in 
                        section 258.40 of title 40, Code of 
                        Federal Regulations; and
                          (ii) for all structures that receive 
                        coal combustion residuals after the 
                        date of enactment of this section, the 
                        revised criteria regarding groundwater 
                        monitoring requirements described in 
                        subpart E of part 258 of title 40, Code 
                        of Federal Regulations;
                  (B) the revised criteria for location 
                restrictions described in--
                          (i) for new structures, and lateral 
                        expansions of existing structures, that 
                        first receive coal combustion residuals 
                        after the date of enactment of this 
                        section, sections 258.11 through 258.15 
                        of title 40, Code of Federal 
                        Regulations; and
                          (ii) for existing structures that 
                        receive coal combustion residuals after 
                        the date of enactment of this section, 
                        sections 258.11 and 258.15 of title 40, 
                        Code of Federal Regulations;
                  (C) for all structures that receive coal 
                combustion residuals after the date of 
                enactment of this section, the revised criteria 
                for air quality described in section 258.24 of 
                title 40, Code of Federal Regulations; and
                  (D) for all structures that receive coal 
                combustion residuals after the date of 
                enactment of this section, the revised criteria 
                for financial assurance described in subpart G 
                of part 258 of title 40, Code of Federal 
                Regulations.
          (3) Applicability of certain requirements.--A State 
        may determine that one or more of the requirements of 
        the revised criteria described in paragraph (2) is not 
        needed for the management of coal combustion residuals 
        in that State, and may decline to apply such 
        requirement as part of its coal combustion residuals 
        permit program. If a State declines to apply a 
        requirement under this paragraph, the State shall 
        include in the certification under subsection (b)(2) a 
        description of such requirement and the reasons such 
        requirement is not needed in the State. If the 
        Administrator determines that a State determination 
        under this paragraph does not accurately reflect the 
        needs for the management of coal combustion residuals 
        in the State, the Administrator may treat such State 
        determination as a deficiency under subsection (d).
  (d) Written Notice and Opportunity To Remedy.--
          (1) In general.--The Administrator shall provide to a 
        State written notice and an opportunity to remedy 
        deficiencies in accordance with paragraph (2) if at any 
        time the State--
                  (A) does not satisfy the notification 
                requirement under subsection (b)(1);
                  (B) has not submitted a certification under 
                subsection (b)(2);
                  (C) does not satisfy the maintenance 
                requirement under subsection (b)(3); or
                  (D) is not implementing a coal combustion 
                residuals permit program that meets the 
                specifications described in subsection (c)(1).
          (2) Contents of notice; deadline for response.--A 
        notice provided under this subsection shall--
                  (A) include findings of the Administrator 
                detailing any applicable deficiencies in--
                          (i) compliance by the State with the 
                        notification requirement under 
                        subsection (b)(1);
                          (ii) compliance by the State with the 
                        certification requirement under 
                        subsection (b)(2);
                          (iii) compliance by the State with 
                        the maintenance requirement under 
                        subsection (b)(3); and
                          (iv) the State coal combustion 
                        residuals permit program in meeting the 
                        specifications described in subsection 
                        (c)(1); and
                  (B) identify, in collaboration with the 
                State, a reasonable deadline, which shall be 
                not sooner than 6 months after the State 
                receives the notice, by which the State shall 
                remedy the deficiencies detailed under 
                subparagraph (A).
  (e) Implementation by Administrator.--
          (1) In general.--The Administrator shall implement a 
        coal combustion residuals permit program for a State 
        only in the following circumstances:
                  (A) If the Governor of such State notifies 
                the Administrator under subsection (b)(1) that 
                such State will not adopt and implement such a 
                permit program.
                  (B) If such State has received a notice under 
                subsection (d) and, after any review brought by 
                the State under section 7006, fails, by the 
                deadline identified in such notice under 
                subsection (d)(2)(B), to remedy the 
                deficiencies detailed in such notice under 
                subsection (d)(2)(A).
                  (C) If such State informs the Administrator, 
                in writing, that such State will no longer 
                implement such a permit program.
          (2) Requirements.--If the Administrator implements a 
        coal combustion residuals permit program for a State 
        under paragraph (1), such permit program shall consist 
        of the specifications described in subsection (c)(1).
          (3) Enforcement.--If the Administrator implements a 
        coal combustion residuals permit program for a State 
        under paragraph (1), the authorities referred to in 
        section 4005(c)(2)(A) shall apply with respect to coal 
        combustion residuals and structures and the 
        Administrator may use such authorities to inspect, 
        gather information, and enforce the requirements of 
        this section in the State.
  (f) State Control After Implementation by Administrator.--
          (1) State control.--
                  (A) New adoption and implementation by 
                state.--For a State for which the Administrator 
                is implementing a coal combustion residuals 
                permit program under subsection (e)(1)(A), the 
                State may adopt and implement such a permit 
                program by--
                          (i) notifying the Administrator that 
                        the State will adopt and implement such 
                        a permit program;
                          (ii) not later than 6 months after 
                        the date of such notification, 
                        submitting to the Administrator a 
                        certification under subsection (b)(2); 
                        and
                          (iii) receiving from the 
                        Administrator--
                                  (I) a determination that the 
                                State coal combustion residuals 
                                permit program meets the 
                                specifications described in 
                                subsection (c)(1); and
                                  (II) a timeline for 
                                transition of control of the 
                                coal combustion residuals 
                                permit program.
                  (B) Remedying deficient permit program.--For 
                a State for which the Administrator is 
                implementing a coal combustion residuals permit 
                program under subsection (e)(1)(B), the State 
                may adopt and implement such a permit program 
                by--
                          (i) remedying the deficiencies 
                        detailed in the notice provided under 
                        subsection (d)(2)(A); and
                          (ii) receiving from the 
                        Administrator--
                                  (I) a determination that the 
                                deficiencies detailed in such 
                                notice have been remedied; and
                                  (II) a timeline for 
                                transition of control of the 
                                coal combustion residuals 
                                permit program.
                  (C) Resumption of implementation by state.--
                For a State for which the Administrator is 
                implementing a coal combustion residuals permit 
                program under subsection (e)(1)(C), the State 
                may adopt and implement such a permit program 
                by--
                          (i) notifying the Administrator that 
                        the State will adopt and implement such 
                        a permit program;
                          (ii) not later than 6 months after 
                        the date of such notification, 
                        submitting to the Administrator a 
                        certification under subsection (b)(2); 
                        and
                          (iii) receiving from the 
                        Administrator--
                                  (I) a determination that the 
                                State coal combustion residuals 
                                permit program meets the 
                                specifications described in 
                                subsection (c)(1); and
                                  (II) a timeline for 
                                transition of control of the 
                                coal combustion residuals 
                                permit program.
          (2) Review of determination.--
                  (A) Determination required.--The 
                Administrator shall make a determination under 
                paragraph (1) not later than 90 days after the 
                date on which the State submits a certification 
                under paragraph (1)(A)(ii) or (1)(C)(ii), or 
                notifies the Administrator that the 
                deficiencies have been remedied pursuant to 
                paragraph (1)(B)(i), as applicable.
                  (B) Review.--A State may obtain a review of a 
                determination by the Administrator under 
                paragraph (1) as if such determination was a 
                final regulation for purposes of section 7006.
          (3) Implementation during transition.--
                  (A) Effect on actions and orders.--Actions 
                taken or orders issued pursuant to a coal 
                combustion residuals permit program shall 
                remain in effect if--
                          (i) a State takes control of its coal 
                        combustion residuals permit program 
                        from the Administrator under paragraph 
                        (1); or
                          (ii) the Administrator takes control 
                        of a coal combustion residuals permit 
                        program from a State under subsection 
                        (e).
                  (B) Change in requirements.--Subparagraph (A) 
                shall apply to such actions and orders until 
                such time as the Administrator or the head of 
                the lead State agency responsible for 
                implementing the coal combustion residuals 
                permit program, as applicable--
                          (i) implements changes to the 
                        requirements of the coal combustion 
                        residuals permit program with respect 
                        to the basis for the action or order; 
                        or
                          (ii) certifies the completion of a 
                        corrective action that is the subject 
                        of the action or order.
          (4) Single permit program.--If a State adopts and 
        implements a coal combustion residuals permit program 
        under this subsection, the Administrator shall cease to 
        implement the permit program implemented under 
        subsection (e) for such State.
  (g) Effect on Determination Under 4005(c) or 3006.--The 
Administrator shall not consider the implementation of a coal 
combustion residuals permit program by the Administrator under 
subsection (e) in making a determination of approval for a 
permit program or other system of prior approval and conditions 
under section 4005(c) or of authorization for a program under 
section 3006.
  (h) Closure.--If it is determined, pursuant to a coal 
combustion residuals permit program, that a structure should 
close, the time period and method for the closure of such 
structure shall be set forth, in a schedule, in a closure plan 
that takes into account the nature and the site-specific 
characteristics of the structure to be closed. In the case of a 
surface impoundment, the closure plan shall require, at a 
minimum, the removal of liquid and the stabilization of 
remaining waste, as necessary to support the final cover.
  (i) Authority.--
          (1) State authority.--Nothing in this section shall 
        preclude or deny any right of any State to adopt or 
        enforce any regulation or requirement respecting coal 
        combustion residuals that is more stringent or broader 
        in scope than a regulation or requirement under this 
        section.
          (2) Authority of the administrator.--
                  (A) In general.--Except as provided in 
                subsection (e) of this section and section 6005 
                of this title, the Administrator shall, with 
                respect to the regulation of coal combustion 
                residuals, defer to the States pursuant to this 
                section.
                  (B) Imminent hazard.--Nothing in this section 
                shall be construed to affect the authority of 
                the Administrator under section 7003 with 
                respect to coal combustion residuals.
  (j) Mine Reclamation Activities.--A coal combustion residuals 
permit program implemented under subsection (e) by the 
Administrator shall not apply to the utilization, placement, 
and storage of coal combustion residuals at surface mining and 
reclamation operations.
  (k) Definitions.--In this section:
          (1) Coal combustion residuals.--The term ``coal 
        combustion residuals'' means--
                  (A) the solid wastes listed in section 
                3001(b)(3)(A)(i), including recoverable 
                materials from such wastes;
                  (B) coal combustion wastes that are co-
                managed with wastes produced in conjunction 
                with the combustion of coal, provided that such 
                wastes are not segregated and disposed of 
                separately from the coal combustion wastes and 
                comprise a relatively small proportion of the 
                total wastes being disposed in the structure;
                  (C) fluidized bed combustion wastes;
                  (D) wastes from the co-burning of coal with 
                non-hazardous secondary materials provided that 
                coal makes up at least 50 percent of the total 
                fuel burned; and
                  (E) wastes from the co-burning of coal with 
                materials described in subparagraph (A) that 
                are recovered from monofills.
          (2) Coal combustion residuals permit program.--The 
        term ``coal combustion residuals permit program'' means 
        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.
          (3) Structure.--The term ``structure'' means a 
        landfill, surface impoundment, or other land-based unit 
        which may receive coal combustion residuals.
          (4) Revised criteria.--The term ``revised criteria'' 
        means the criteria promulgated for municipal solid 
        waste landfill units under section 4004(a) and under 
        section 1008(a)(3), as revised under section 4010(c).

           *       *       *       *       *       *       *


                            ADDITIONAL VIEWS

    There was some confusion surrounding H.R. 2273, the Coal 
Residuals Reuse and Management Act, when it was reported from 
the Committee on Energy and Commerce. On April 6, 2011, the 
Subcommittee on Environment and Economy held a legislative 
hearing on H.R. 1391. H.R. 1391 was a completely different 
proposal than H.R. 2273, and the Subcommittee never held a 
hearing on H.R. 2273. As a result, there is no legislative 
record that explains how the legislation is envisioned to be 
implemented, or what stakeholders views are on the legislation.
    Although members requested a hearing at the full committee 
markup in order to better understand the legislation, no 
hearing has been scheduled. Instead, members on both sides of 
the Committee were forced to rely on representations made by 
majority staff about the effect and intent of the legislation. 
Those representations are not reflected in the report on this 
bill.
    For example, during consideration, members were told that 
the legislation would allow EPA to tailor disposal criteria to 
reflect the risks of Coal Combustion Residual (CCR) disposal, 
although no revisions would be required. In contrast, the 
report states:

          ``[W]hile H.R. 2273 does not preclude EPA from 
        revising the criteria in Part 258, such future 
        revisions would apply to the entire municipal solid 
        waste landfill program.''

If this statement accurately reflects the intent and effect of 
the legislation, then EPA is precluded from tailoring or 
adapting criteria for the disposal of CCR. Unsafe CCR disposal 
can lead to contamination from aluminum, arsenic, boron, 
cadmium, chloride, fluoride, iron, lead, manganese, mercury, 
molybdenum, and sulfate. This list of contaminants is different 
from those posing a threat from unsafe disposal of municipal 
solid waste.
    Also during consideration, representations were made about 
the incorporation of the protectiveness standard of RCRA 
Section 4010(C). That section, pursuant to which the criteria 
for disposal of municipal solid waste were promulgated, 
establishes that criteria for disposal must include the 
requirements necessary to protect human health and the 
environment from the risks associated with disposal of 
municipal solid waste. However, the majority report does not 
reflect that intent. The majority writes:

          The Administrator's evaluation of a State program is 
        limited to the specifications set forth in paragraph 
        (c)(1). The Administrator may not assert that a State's 
        program is deficient based upon a claim that the 
        program does not contain a requirement not specifically 
        set forth in paragraph (c)(1).

Thus, according to the Committee report, if a plan includes the 
requirements specifically set forth in paragraph (c)(1) but is 
not sufficient to protect human health and the environment, the 
EPA would be blocked from finding that plan deficient. This 
statement from the majority conflicts with representations that 
were made about the incorporation of a standard of 
protectiveness.
    This confusion extends to specific requirements, such as 
dust control. In its subtitle D proposal for CCR disposal, EPA 
required dust control ``by either covering or otherwise 
managing CCRs to control wind dispersal of dust, emplacement as 
wet conditioned CCRs to control wind dispersal, when stored in 
piles, or storage in tanks or buildings.''\1\ That requirement 
was included because of health concerns. For instance, EPA has 
stated:
---------------------------------------------------------------------------
    \1\75 F.R. 35175.

          Inhalation of hexavalent chromium has been shown to 
        cause lung cancer. By requiring fugitive dust controls, 
        the proposed rule would reduce inhalation exposure to 
        hexavalent chromium near CCR disposal units that are 
        not currently required to control fugitive dust.\2\
---------------------------------------------------------------------------
    \2\75 F.R. 35215.

The risk of exposure to hexavalent chromium through inhalation 
is in addition to general risks from exposure to particulate 
matter. At the subcommittee hearing on this topic, witnesses 
from the ASTWMO and the American Coal Ash Association testified 
that they support improvements to the standards for landfill 
disposal, such as dust control.
    Representations were made during consideration of the bill 
that the legislation would incorporate the dust control 
requirements included in EPA's subtitle D proposal. However, 
the majority report makes clear that these requirements are not 
intended to be included in the legislation. Instead, the 
majority writes:

          ``[T]he Committee considers the applicable Clean Air 
        Act provisions and individual State fugitive dust 
        requirements adequate to address any potential dust 
        issues with coal combustion residuals structures.''

    These discrepancies are illustrative, but do not represent 
an exhaustive list. The Committee has still not heard from the 
EPA or stakeholders on the legislation. The one piece of expert 
analysis available to the Committee, the analysis of costs 
prepared by the Congressional Budget Office, has been rejected 
by the majority in their report. Although the Congressional 
Budget Office expects that EPA will need to review state permit 
programs to ensure that they are meeting the specifications of 
the bill. The majority rejects this idea, demonstrating that 
they do not intend the EPA to play a role in ensuring 
sufficient state programs to protect human health and the 
environment.
    The majority's rejection of the CBO score raises 
significant concerns about how the program will be paid for and 
as to whether the majority understands the effects and 
implementation of the legislation they have reported.
    It is clear that this legislation must be subject to 
additional scrutiny, and the legislative record is not yet 
sufficient to inform a floor vote on this legislation.
                                   Henry A. Waxman.
                                   G.K. Butterfield.
                                   Lois Capps.
                                   Anna G. Eshoo.
                                   Doris O. Matsui.
                                   Frank Pallone, Jr .
                                   Bobby L. Rush.
                                   Jan Schakowsky.
                                   Eliot L. Engel.
                                   Edward J. Markey.
                                   Diana DeGette.
                                   Donna M. Christensen.

                                  
