[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1751 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 1751
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 20, 2011
Mr. Hoeven (for himself, Mr. Conrad, Mr. Enzi, Ms. Landrieu, Mr.
Boozman, Mr. Nelson of Nebraska, Mr. Portman, Mr. Manchin, Mr. Thune,
and Mr. Rockefeller) introduced the following bill; which was read
twice and referred to the Committee on Environment and Public Works
_______________________________________________________________________
A BILL
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
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, including a description of the
State's--
``(I) process to inspect or
otherwise determine compliance with
such permit program;
``(II) process to enforce the
requirements of such permit program;
and
``(III) public participation
process for the promulgation,
amendment, or repeal of regulations
for, and the issuance of permits under,
such permit program;
``(iv) a legal certification that the State
has, at the time of certification, fully
effective statutes and regulations necessary to
implement a coal combustion residuals permit
program that meets the specifications described
in subsection (c)(1); and
``(v) copies of State statutes and
regulations 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
according to a schedule determined by such agency. If
the identified deficiency is not corrected according to
such schedule, 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) 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 according
to a schedule determined by such agency. If the
identified deficiency is not corrected according to
such schedule, the head of such agency has authority to
require that the structure close in accordance with
subsection (h).
``(E) 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.
``(F) 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.
``(G) In the case of a coal combustion residuals
permit program implemented by a State, the State has
the authority to address wind dispersal of dust from
coal combustion residuals by requiring dust control
measures, as determined appropriate by the head of the
lead State agency responsible for implementing the coal
combustion residuals 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 and corrective
action requirements described in subpart E of
part 258 of title 40, Code of Federal
Regulations, except that, for the purposes of
this paragraph, such revised criteria shall
also include--
``(I) for the purposes of detection
monitoring, the constituents boron,
chloride, conductivity, fluoride,
mercury, pH, sulfate, sulfide, and
total dissolved solids; and
``(II) for the purposes of
assessment monitoring, the constituents
aluminum, boron, chloride, fluoride,
iron, manganese, molybdenum, pH,
sulfate, and total dissolved solids;
``(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;
``(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;
``(E) for all structures that receive coal
combustion residuals after the date of enactment of
this section, the revised criteria for surface water
described in section 258.27 of title 40, Code of
Federal Regulations;
``(F) for all structures that receive coal
combustion residuals after the date of enactment of
this section, the revised criteria for recordkeeping
described in section 258.29 of title 40, Code of
Federal Regulations;
``(G) for landfills and other land-based units,
other than surface impoundments, that receive coal
combustion residuals after the date of enactment of
this section, the revised criteria for run-on and run-
off control systems described in section 258.26 of
title 40, Code of Federal Regulations; and
``(H) for surface impoundments that receive coal
combustion residuals after the date of enactment of
this section, the revised criteria for run-off control
systems described in section 258.26(a)(2) 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 closure plan that establishes a deadline for completion and 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.
``(C) Technical and enforcement assistance only
upon request.--Upon request from the head of a lead
State agency that is implementing a coal combustion
residuals permit program, the Administrator may provide
to such State agency only the technical or enforcement
assistance requested.
``(3) Citizen suits.--Nothing in this section shall be
construed to affect the authority of a person to commence a
civil action in accordance with section 7002.
``(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) in accordance with the
requirement of such section that the criteria protect human
health and the environment.''.
(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.).
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