S. 3512 (112th): Coal Ash Recycling and Oversight Act of 2012

112th Congress, 2011–2013. Text as of Aug 02, 2012 (Introduced).

Status & Summary | PDF | Source: GPO

II

112th CONGRESS

2d Session

S. 3512

IN THE SENATE OF THE UNITED STATES

August 2, 2012

(for himself, Mr. Conrad, Mr. Baucus, Mr. McConnell, Mr. Kohl, Mr. Portman, Ms. Landrieu, Mr. Boozman, Mr. Manchin, Mr. Blunt, Mr. Warner, Mr. Johnson of Wisconsin, Mr. Pryor, Mr. Moran, Mrs. McCaskill, Mr. Alexander, Mr. Nelson of Nebraska, Mr. Toomey, Mr. Nelson of Florida, Mr. Graham, Mr. Casey, Mr. Thune, Mr. Webb, and Mr. Hatch) 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.

1.

Short title

This title may be cited as the Coal Ash Recycling and Oversight Act of 2012.

2.

Management and disposal of coal combustion residuals

(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:

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)(3)(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).

(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;

(III)

public participation process for the promulgation, amendment, or repeal of regulations for, and the issuance of permits under, such permit program; and

(IV)

statutes, regulations, or policies pertaining to public access to information, such as groundwater monitoring data;

(iv)

a legal certification that the State has, at the time of certification, fully effective statutes or regulations necessary to implement a coal combustion residuals permit program that meets the specifications described in subsection (c); and

(v)

copies of State statutes and regulations described in clause (iv).

(C)

Updates

A State may update the certification as needed to reflect changes to the coal combustion residuals permit program.

(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

(A)

In general

A coal combustion residuals permit program shall apply the revised criteria described in paragraph (2) to owners or operators of structures, including surface impoundments, that receive coal combustion residuals.

(B)

Structural integrity

(i)

Engineering certification

A coal combustion residuals permit program shall require that an independent registered professional engineer certify that—

(I)

the design of structures is in accordance with recognized and generally accepted good engineering practices for containment of the maximum volume of coal combustion residuals and liquids appropriate for the structure; and

(II)

the construction and maintenance of the structure will ensure dam stability.

(ii)

Inspection

A coal combustion residuals permit program shall require that structures that are surface impoundments be inspected not less than annually by an independent registered professional engineer to assure that the design, operation, and maintenance of the surface impoundment is in accordance with recognized and generally accepted good engineering practices for containment of the maximum volume of coal combustion residuals and liquids which can be impounded, so as to ensure dam stability.

(iii)

Deficiency

(I)

In general

If the head of the agency responsible for implementing the coal combustion residuals permit program determines that a structure is deficient with respect to the requirements in clauses (i) and (ii), the head of the agency has the authority to require action to correct the deficiency according to a schedule determined by the agency.

(II)

Uncorrected deficiencies

If a deficiency is not corrected according to the schedule, the head of the agency has the authority to require that the structure close in accordance with subsection (h).

(C)

Location

Each structure that first receives coal combustion residuals after the date of enactment of this section shall be constructed with a base located a minimum of 2 feet above the upper limit of the water table, unless it is demonstrated to the satisfaction of the agency responsible for implementing the coal combustion residuals permit program that—

(i)

the hydrogeologic characteristics of the structure and surrounding land would preclude such a requirement; and

(ii)

the function and integrity of the liner system will not be adversely impacted by contact with the water table.

(D)

Wind dispersal

(i)

In general

The agency responsible for implementing the coal combustion residuals permit program shall require that owners or operators of structures address wind dispersal of dust by requiring cover, or by wetting coal combustion residuals with water to a moisture content that prevents wind dispersal, facilitates compaction, and does not result in free liquids.

(ii)

Alternative methods

Subject to the review and approval by the agency, owners or operators of structures may propose alternative methods to address wind dispersal of dust that will provide comparable or more effective control of dust.

(E)

Permits

The agency responsible for implementing the coal combustion residuals permit program shall require that the owner or operator of each structure that receives coal combustion residuals after the date of enactment of this section apply for and obtain a permit incorporating the requirements of the coal combustion residuals permit program.

(F)

State notification and groundwater monitoring

(i)

Notification

Not later than the date on which a State submits a certification under subsection (b)(2), the State shall notify owners or operators of structures within the State of—

(I)

the obligation to apply for and obtain a permit under subparagraph (E); and

(II)

the groundwater monitoring requirements applicable to structures under paragraph (2)(A)(ii).

(ii)

Groundwater monitoring

Not later than 1 year after the date on which a State submits a certification under subsection (b)(2), the State shall require the owner or operator of each structure to comply with the groundwater monitoring requirements under paragraph (2)(A)(ii).

(G)

Agency requirements

Except for information described in section 1905 of title 18, United States Code, the agency responsible for implementing the coal combustion residuals permit program shall ensure that—

(i)

documents for permit determinations are made available for public review and comment under the public participation process described in subsection (b)(2)(B)(iii)(III);

(ii)

final determinations on permit applications are made known to the public; and

(iii)

groundwater monitoring data collected under paragraph (2) is publicly available.

(H)

Agency authority

(i)

In general

The agency responsible for implementing the coal combustion residuals permit program has the authority to—

(I)

obtain information necessary to determine whether the owner or operator of a structure is in compliance with the coal combustion residuals permit program requirements of this section;

(II)

conduct or require monitoring and testing to ensure that structures are in compliance with the coal combustion residuals permit program requirements of this section; and

(III)

enter, at reasonable times, any site or premise subject to the coal combustion residuals permit program for the purpose of inspecting structures and reviewing records relevant to the operation and maintenance of structures.

(ii)

Monitoring and testing

If monitoring or testing is conducted under clause (i)(II) by or for the agency responsible for implementing the coal combustion residuals permit program, the agency shall, if requested, provide to the owner or operator—

(I)

a written description of the monitoring or testing completed;

(II)

at the time of sampling, a portion of each sample equal in volume or weight to the portion retained by or for the agency; and

(III)

a copy of the results of any analysis of samples collected by or for the agency.

(I)

State authority

A State implementing a coal combustion residuals permit program has the authority to—

(i)

inspect structures; and

(ii)

implement and enforce the coal combustion residuals permit program.

(J)

Requirements for surface impoundments that do not meet certain criteria

(i)

In general

In addition to the groundwater monitoring and corrective action requirements described in paragraph (2)(A)(ii), a coal combustion residuals permit program shall require a surface impoundment that receives coal combustion residuals after the date of enactment of this section to—

(I)

comply with the requirements in clause (ii)(I)(aa) and subclauses (II) through (IV) of clause (ii) if the surface impoundment—

(aa)

does not—

(AA)

have a liner system described in section 258.40(b) of title 40, Code of Federal Regulations; and

(BB)

meet the design criteria described in section 258.40(a)(1) of title 40, Code of Federal Regulations; and

(bb)

within 10 years after the date of enactment of this section, is required under section 258.56(a) of title 40, Code of Federal Regulations, to undergo an assessment of corrective measures for any constituent identified in paragraph (2)(A)(ii) for which assessment groundwater monitoring is required; and

(II)

comply with the requirements in clause (ii)(I)(bb) and subclauses (II) through (IV) of clause (ii) if the surface impoundment—

(aa)

does not—

(AA)

have a liner system described in section 258.40(b) of title 40, Code of Federal Regulations; and

(BB)

meet the design criteria described in section 258.40(a)(1) of title 40, Code of Federal Regulations; and

(bb)

as of the date of enactment of this section, is subject to a State corrective action requirement.

(ii)

Requirements

(I)

Deadlines

(aa)

In general

Except as provided in item (bb), subclause (IV), and clause (iii), the groundwater protection standard for structures identified in clause (i)(I) established by the agency responsible for implementing the coal combustion residuals permit program under section 258.55(h) or 258.55(i) of title 40, Code of Federal Regulations, for any constituent for which corrective measures are required shall be met—

(AA)

as soon as practicable at the relevant point of compliance, as described in section 258.40(d) of title 40, Code of Federal Regulations; and

(BB)

not later than 10 years after the date of enactment of this section.

(bb)

Impoundments subject to State corrective action requirements

Except as provided in subclause (IV), the groundwater protection standard for structures identified in clause (i)(II) established by the agency responsible for implementing the coal combustion residuals permit program under section 258.55(h) or 258.55(i) of title 40, Code of Federal Regulations, for any constituent for which corrective measures are required shall be met—

(AA)

as soon as practicable at the relevant point of compliance, as described in section 258.40(d) of title 40, Code of Federal Regulations; and

(BB)

not later than 8 years after the date of enactment of this section.

(II)

Closure

If the deadlines under clause (I) are not satisfied, the structure shall cease receiving coal combustion residuals and initiate closure under subsection (h).

(III)

Interim measures

(aa)

In general

Except as provided in item (bb), not later than 90 days after the date on which the assessment of corrective measures is initiated, the owner or operator shall implement interim measures, as necessary, under the factors in section 258.58(a)(3) of title 40, Code of Federal Regulations.

(bb)

Impoundments subject to state corrective action requirements

Item (aa) shall only apply to surface impoundments subject to a State corrective action requirement as of the date of enactment of this section if the owner or operator has not implemented interim measures, as necessary, under the factors in section 258.58(a)(3) of title 40, Code of Federal Regulations.

(IV)

Extension of deadline

(aa)

In general

Except as provided in item (bb), the deadline for meeting a groundwater protection standard under subclause (I) may be extended by the agency responsible for implementing the coal combustion residuals permit program, after opportunity for public notice and comment under the public participation process described in subsection (b)(2)(B)(iii)(III), based on—

(AA)

the effectiveness of any interim measures implemented by the owner or operator of the facility under section 258.58(a)(3) of title 40, Code of Federal Regulations;

(BB)

the level of progress demonstrated in meeting the groundwater protection standard;

(CC)

the potential for other adverse human health or environmental exposures attributable to the contamination from the surface impoundment undergoing corrective action; and

(DD)

the lack of available alternative management capacity for the coal combustion residuals and related materials managed in the impoundment at the facility at which the impoundment is located if the owner or operator has used best efforts, as necessary, to design, obtain any necessary permits, finance, construct, and render operational the alternative management capacity during the time period for meeting a groundwater protection standard in subclause (I).

(bb)

Exception

The deadlines under subclause (I) shall not be extended if there has been contamination of public or private drinking water systems attributable to a surface impoundment undergoing corrective action, unless the contamination has been addressed by providing a permanent replacement water system.

(iii)

Subsequent closure

(I)

In general

In addition to the groundwater monitoring and corrective action requirements described in paragraph (2)(A)(ii), a coal combustion residuals permit program shall require a surface impoundment that receives coal combustion residuals after the date of enactment of this section to comply with the requirements in subclause (II) if the surface impoundment—

(aa)

does not—

(AA)

have a liner system described in section 258.40(b) of title 40, Code of Federal Regulations; and

(BB)

meet the design criteria described in section 258.40(a)(1) of title 40, Code of Federal Regulations;

(bb)

more than 10 years after the date of enactment of this section, is required under section 258.56(a) of title 40, Code of Federal Regulations, to undergo an assessment of corrective measures for any constituent identified in paragraph (2)(A)(ii) for which assessment groundwater monitoring is required; and

(cc)

is not subject to the requirements in clause (ii).

(II)

Requirements

(aa)

Closure

The structures identified in subclause (I) shall cease receiving coal combustion residuals and initiate closure in accordance with subsection (h) after alternative management capacity for the coal combustion residuals and related materials managed in the impoundment at the facility is available.

(bb)

Best efforts

The alternative management capacity shall be developed as soon as practicable with the owner or operator using best efforts to design, obtain necessary permits, finance, construct, and render operational the alternative management capacity.

(cc)

Alternative management capacity plan

The owner or operator shall, in collaboration with the agency responsible for implementing the coal combustion residuals permit program, prepare a written plan that describes the steps necessary to develop the alternative management capacity and includes a schedule for completion.

(dd)

Public participation

The plan described in item (cc) shall be subject to public notice and comment under the public participation process described in subsection (b)(2)(B)(iii)(III).

(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, except that the leachate collection system requirements described in section 258.40(a)(2) of title 40, Code of Federal Regulations do not apply to structures that are surface impoundments;

(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, the 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, establishing a groundwater protection standard, and assessment of corrective measures, the constituents aluminum, boron, chloride, fluoride, iron, manganese, molybdenum, pH, sulfate, and total dissolved solids;

(iii)

for all structures that receive coal combustion residuals after the date of enactment of this section, in a manner consistent with subsection (h), the revised criteria for closure described in subsections (a) through (c) and (h) through (j) of section 258.60 of title 40, Code of Federal Regulations; and

(iv)

for all structures that receive coal combustion residuals after the date of enactment of this section, the revised criteria for post-closure care described in section 258.61 of title 40, Code of Federal Regulations, except for the requirement described in subsection (a)(4) of that section;

(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.

(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);

(D)

is not implementing a coal combustion residuals permit program that—

(i)

meets the specifications described in subsection (c); or

(ii)
(I)

is consistent with the certification under subsection (b)(2)(B)(iii); and

(II)

maintains fully effective statutes or regulations necessary to implement a coal combustion residuals permit program; or

(E)

does not make available to the Administrator within 90 days of a written request, specific information necessary for the Administrator to ascertain whether the State has complied with subparagraphs (A) through (D).

(2)

Request

If the request described in paragraph (1)(E) is made pursuant to a petition of the Administrator, the Administrator shall only make the request if the Administrator does not possess the information necessary to ascertain whether the State has complied with subparagraphs (A) through (D) of paragraph (1).

(3)

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);

(iv)

the State coal combustion residuals permit program in meeting the specifications described in subsection (c); and

(v)

compliance by the State with the request under paragraph (1)(E); and

(B)

identify, in collaboration with the State, a reasonable deadline, by which the State shall remedy the deficiencies detailed under subparagraph (A), which shall be—

(i)

in the case of a deficiency described in clauses (i) through (iv) of subparagraph (A), not earlier than 180 days after the date on which the State receives the notice; and

(ii)

in the case of a deficiency described in subparagraph (A)(v), not later than 90 days after the date on which the State receives the notice.

(e)

Implementation by Administrator

(1)

In general

The Administrator shall implement a coal combustion residuals permit program for a State only if—

(A)

the Governor of the State notifies the Administrator under subsection (b)(1) that the State will not adopt and implement a permit program;

(B)

the State has received a notice under subsection (d) and the Administrator determines, after providing a 30-day period for notice and public comment, that the State has failed, by the deadline identified in the notice under subsection (d)(3)(B), to remedy the deficiencies detailed in the notice under subsection (d)(3)(A); or

(C)

the State informs the Administrator, in writing, that such State will no longer implement such a permit program.

(2)

Review

A State may obtain a review of a determination by the Administrator under this subsection as if the determination was a final regulation for purposes of section 7006.

(3)

Other structures

For structures located on property within the exterior boundaries of a State for which the State does not have authority or jurisdiction to regulate, the Administrator shall implement a coal combustion residuals permit program only for those structures.

(4)

Requirements

If the Administrator implements a coal combustion residuals permit program for a State under paragraph (1) or (3), the permit program shall consist of the specifications described in subsection (c).

(5)

Enforcement

(A)

In general

If the Administrator implements a coal combustion residuals permit program for a State under paragraph (1)—

(i)

the authorities referred to in section 4005(c)(2)(A) shall apply with respect to coal combustion residuals and structures for which the Administrator is implementing the coal combustion residuals permit program; and

(ii)

the Administrator may use those authorities to inspect, gather information, and enforce the requirements of this section in the State.

(B)

Other structures

If the Administrator implements a coal combustion residuals permit program for a State under paragraph (3)—

(i)

the authorities referred to in section 4005(c)(2)(A) shall apply with respect to coal combustion residuals and structures for which the Administrator is implementing the coal combustion residuals permit program; and

(ii)

the Administrator may use those authorities to inspect, gather information, and enforce the requirements of this section for the structures for which the Administrator is implementing the coal combustion residuals permit program.

(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, after providing a 30-day period for notice and public comment that the State coal combustion residuals permit program meets the specifications described in subsection (c); 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 only the deficiencies detailed in the notice provided under subsection (d)(3)(A); and

(ii)

receiving from the Administrator—

(I)

a determination, after providing a 30-day period for notice and public comment, 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, after providing a 30-day period for notice and public comment, that the State coal combustion residuals permit program meets the specifications described in subsection (c); 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)(1) 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

(1)

In general

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.

(2)

Surface impoundment

In the case of a surface impoundment, the closure plan under paragraph (1) 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 subsections (d) and (e) and section 6005, 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 as affecting the authority of the Administrator under section 7003 with respect to coal combustion residuals.

(C)

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 enforcement assistance requested.

(D)

Concurrent enforcement

Except as provided in subparagraph (C), the Administrator shall not have concurrent enforcement authority when a State is implementing a coal combustion residuals permit program.

(E)

Other authority

The Administrator shall not have authority to finalize the proposed rule published at pages 35128 through 35264 of volume 75 of the Federal Register (June 21, 2010).

(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 by the Administrator under subsection (e) 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 all of the authorities, activities, and procedures that comprise the system of prior approval and conditions implemented by or for a State to regulate the management and disposal of coal combustion residuals.

(3)

Code of Federal Regulations

The term Code of Federal Regulations means the Code of Federal Regulations (as in effect on the date of enactment of this section) or any successor regulations.

(4)

Permit; prior approval and conditions

The terms permit and prior approval and conditions mean any authorization, license, or equivalent control document that incorporates the requirements and revised criteria described in paragraphs (1) and (2) of subsection (c), respectively.

(5)

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).

(6)

Structure

(A)

In general

Except as provided in subparagraph (B), the term structure means a landfill, surface impoundment, or other land-based unit which may receive coal combustion residuals.

(B)

De minimis receipt

The term structure does not include any land-based unit that receives only de minimis quantities of coal combustion residuals if the presence of coal combustion residuals is incidental to the material managed in the unit.

.

(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.

.

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.).

4.

Technical assistance

Nothing in this Act, or the amendments made by this Act, shall be construed to affect the authority of a State to request, or the Administrator of the Environmental Protection Agency to provide, technical assistance under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

5.

Federal Power Act

Nothing in this Act, or the amendments made by this Act, shall be construed to affect the obligations of the owner or operator of a structure (as defined in section 4011 of the Solid Waste Disposal Act, as added by this Act) under section 215(b)(1) of the Federal Power Act (16 U.S.C. 824o(b)(1)).