H.R. 2273: Coal Residuals Reuse and Management Act

H.R. 2273

Coal Residuals Reuse and Management Act

Date
October 14, 2011 (112th Congress, 1st Session)

Staff Contact
Sarah Makin

Floor Situation

On Friday, October 14, 2011, the House is scheduled to consider H.R. 2273 under a rule.  The rule makes in order six amendments that are debatable for 10 minutes each.  The rule provides for one hour of general debate equally divided and controlled by the chair and ranking minority member of the Committee on Energy and Commerce.  The rule also provides for one motion to recommit with or without instructions.

The bill was introduced by Rep. David McKinley (R-WV) on June 22, 2011, and referred to the Committee on Energy and Commerce.

Bill Summary

H.R. 2273 would utilize the framework and requirements of an existing federal regulatory program developed by the Environmental Protection Agency (EPA) under the Solid Waste Disposal Act (RCRA) as the basis for enforceable minimum federal standards for the regulation of a waste stream known as coal ash.  The bill would include enforceable federal standards, but would leave regulation and enforcement to the states. 

H.R. 2273 would facilitate the recovery of coal combustion residuals (coal ash) by creating a state-based permit program.  The bill would allow all states to be more stringent than the federal minimum in the bill.

The bill gives states with existing RCRA solid or hazardous waste permit programs the option to also adopt and implement a coal combustion residuals permit program because they have already demonstrated an ability to regulate such wastes.  The bill would require that a state intending to implement a permit program must notify the EPA of its intent and must legally certify that its permit program meets the minimum specifications set out in the legislation. 

The bill would include the following permit program specifications:

(1)           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.

(2)           The coal combustion residuals permit program shall apply the revised criteria for location, design, groundwater monitoring, corrective action, financial assurance, closure and post-closure and the specifications to surface impoundments.

(3)           Constituents for detection monitoring shall include boron, chloride, conductivity, fluoride, pH, sulphate, sulfide, and total dissolved solids.

(4)           If a structure that is classified as posing a high hazard potential pursuant to the guidelines published by the Federal Emergency Management Agency titled “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, 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.

(5)           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.

(6)           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.

H.R. 2273 would draw minimum specifications for a permit program from the revised criteria promulgated by the EPA for the municipal solid waste program.  The bill would require that if a state decides not to adopt and implement a permit program, or fails to implement a program, the EPA would begin a process that involves notifying the state of any alleged deficiencies in the program and allowing the state to refute the allegation or cure any deficiencies.  The bill would require that if a state fails to remedy any deficiencies, the EPA, using the minimum specifications for a permit program, would be authorized to assume control of a permit program in that state. 

H.R. 2273 would also provide a mechanism for a state that has ceded control of its permit program to the EPA to take back the permit program by demonstrating that its program complies with the legislation’s minimum specifications.  The bill would ensure the operation of only one permitting program (either by the EPA or the state); thereby making it impossible for there to be simultaneous regulatory programs for managing coal combustion residuals in a state.   

Background

Recently-promulgated EPA rules would create three new regulatory options for management of coal combustion residuals (CCRs) – the byproduct of coal combustion.  If implemented, these burdensome rules would place an unwarranted stigma on CCRs and threaten their beneficial reuse.

CCRs are used to create roads, bridges, and buildings, and are commonly recycled into materials used in the construction industry, such as cement and roofing shingles.  As the amount of CCRs used beneficially decreases, thousands of jobs could be lost.  Because nearly 50 percent of the nation’s electricity is produced from coal, these stringent new regulations would also drive up the cost of power production.  Consumers of electricity and goods manufactured with CCRs would be negatively impacted.

House Republicans believe that the government’s goal should be to produce the most effective and least burdensome regulations possible.  The Coal Residuals Reuse and Management Act, H.R. 2273, would facilitate the recovery and beneficial use of CCRs and ensure that unused portions are responsibly managed by creating a State-based permit program in accordance with existing federal standards.  Most importantly, the bill would achieve environmental goals without harming consumers and destroying jobs.

Cost

The Congressional Budget Office (CBO) estimates that implementing H.R. 2273 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 this mandate would fall well below the annual threshold established in UMRA.

Amendments

Amendment No. 1—Rep. Shimkus (R-IL):  This manager’s amendment would provide additional detail to the certification requirements that states must provide to the EPA; would add certain operating criteria from and  would clarify that states may request technical assistance from EPA; would add a savings clause for citizen suits; would add additional constituents for groundwater monitoring; would reiterate in the definition of revised criteria that the criteria were promulgated to protect human health and the environment.

Amendment No. 2—Rep. Waxman (D-CA):  This amendment would require state programs to meet a legal standard of protection to ensure that human health and the environment are protected.

Amendment No. 3—Rep. Carney (D-DE):  This amendment would establish a five-year time frame for bringing existing surface impoundments into compliance with revised criteria for design, groundwater monitoring, and corrective action.  The amendment would also maintain state flexibility to opt-out (with certification) and would provide a compliance window of up to 10 years.

Amendment No. 4—Rep. Markey (D-MA):  This amendment would require states to notify the public and the EPA and offer the opportunity to comment before a state establishes a program to regulate coal combustion waste.

Amendment No. 5—Rep. Rush (D-IL):  This amendment would apply additional federal enforcement authority so that if the EPA Administrator determines that a structure is in violation of a state coal combustion residuals permit program, and the state has not taken appropriate action to enforce such permit program with respect to such structure, the EPA may inspect the structure and enforce the requirements of the permit program with respect to the structure.

Amendment No. 6—Rep. Jackson Lee (D-TX):  This amendment would require the Administrator of the EPA to submit a report to Congress on the long-term impacts of state coal combustion residuals permit programs on human health and the environment within five years of enactment.