Ensuring Safe Disposal of Coal Ash Act

I 117TH CONGRESS 1ST SESSION H. R. 2396 To amend the Solid Waste Disposal Act to ensure the safe disposal of coal combustion residuals. IN THE HOUSE OF REPRESENTATIVES APRIL 8, 2021 Mr. COHEN introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend the Solid Waste Disposal Act to ensure the safe disposal of coal combustion residuals. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Ensuring Safe Dis- 4 posal of Coal Ash Act’’. 5 SEC. 2. ENSURING SAFE DISPOSAL OF COAL ASH. 6 Section 4005(d) of the Solid Waste Disposal Act (42 7 U.S.C. 6945(d)) is amended— 8 (1) in paragraph (1)— 9 VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 2396 IH (A) in subparagraph (A), in the matter 1 preceding clause (i), by striking ‘‘in lieu of reg- 2 ulation of coal combustion residuals units’’ and 3 inserting ‘‘as a program of regulation of coal 4 combustion residuals units pursuant to this 5 subsection’’; 6 (B) in subparagraph (B)— 7 (i) in the matter preceding clause (i), 8 by striking ‘‘after public notice and an op- 9 portunity for public comment’’ and insert- 10 ing ‘‘after public notice, an opportunity for 11 public comment, and an opportunity for a 12 public hearing’’; and 13 (ii) in clause (i), by inserting ‘‘as re- 14 vised pursuant to paragraph (8) of this 15 subsection’’ after ‘‘Code of Federal Regula- 16 tions’’; 17 (C) in subparagraph (D)— 18 (i) in clause (i)(I), by striking ‘‘12’’ 19 and inserting ‘‘5’’; 20 (ii) in clause (i)(II), by striking ‘‘not 21 later than 3 years’’ and inserting ‘‘not 22 later than 1 year’’; 23 VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 2396 IH (iii) in clause (ii)(II), by inserting 1 ‘‘clauses (i) and (ii) of’’ before ‘‘subpara- 2 graph (B)’’; and 3 (iv) by adding at the end the fol- 4 lowing: 5 ‘‘(iii) PERIOD FOR CORRECTION OF 6 DEFICIENCIES.—The Administrator shall 7 include in a notice under clause (ii) a rea- 8 sonable period for the State to correct the 9 deficiencies identified under such clause, 10 which shall not exceed 180 days.’’; and 11 (D) in subparagraph (E)— 12 (i) in clause (i), by inserting ‘‘by the 13 end of the period included in the notice 14 under subparagraph (D)(iii)’’ after ‘‘identi- 15 fied by the Administrator under subpara- 16 graph (D)(ii)’’; and 17 (ii) in clause (ii), by inserting ‘‘by the 18 end of the period included in the notice 19 under subparagraph (D)(iii)’’ after ‘‘identi- 20 fied by the Administrator under subpara- 21 graph (D)(ii)’’; 22 (2) in paragraph (2)(B), by inserting ‘‘as re- 23 vised pursuant to paragraph (8) of this subsection’’ 24 after ‘‘Code of Federal Regulations’’; 25 VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 2396 IH (3) in paragraph (3), by inserting ‘‘as revised 1 pursuant to paragraph (8) of this subsection’’ after 2 ‘‘Code of Federal Regulations’’; and 3 (4) by adding at the end the following: 4 ‘‘(8) REVISION OF REGULATIONS AND REVIEW 5 OF APPROVED STATE PROGRAMS.—Not later than 2 6 years after the date of enactment of this paragraph, 7 the Administrator shall— 8 ‘‘(A) finalize revisions to the criteria for 9 coal combustion residuals units under part 257 10 of title 40, Code of Federal Regulations, to in- 11 clude any criteria necessary to protect human 12 health and the environment, including the 13 health of vulnerable or disproportionately ex- 14 posed subpopulations, as well as the following 15 minimum requirements: 16 ‘‘(i) Require meaningful public partici- 17 pation in the issuance and renewal of all 18 permits or other prior approvals, including 19 notice, opportunity to comment, and public 20 hearings to ensure that— 21 ‘‘(I) potentially affected residents 22 of a community have an appropriate 23 opportunity to participate in decisions 24 regarding a proposed activity that 25 VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 2396 IH may affect the environment or public 1 health of the community; 2 ‘‘(II) the public contribution can 3 influence the determination by the 4 Federal or State permitting agency; 5 ‘‘(III) the concerns of all partici- 6 pants involved are taken into consid- 7 eration in the decision-making proc- 8 ess; and 9 ‘‘(IV) the Federal or State per- 10 mitting agency provides to potentially 11 affected members of the public accu- 12 rate information and facilitates the in- 13 volvement of potentially affected mem- 14 bers of the public. 15 ‘‘(ii) Require financial assurance for 16 all coal combustion residuals units suffi- 17 cient to cover closure, post-closure care, 18 and corrective actions, and responsibility 19 for bodily injury and property damage to 20 third parties caused by sudden accidental 21 occurrences arising from operations of the 22 facility, in the form of a surety bond or ir- 23 revocable letter of credit, with no allowance 24 for insurance or for financial tests, cor- 25 VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 2396 IH porate guarantees, or other forms of self- 1 bonding. 2 ‘‘(iii) Prohibit the continued operation 3 of unlined impoundments, which shall in- 4 clude all coal combustion residuals units 5 that fail to meet the design criteria for new 6 impoundments pursuant to part 257 of 7 title 40, Code of Federal Regulations. 8 ‘‘(iv) Limit fugitive dust emissions at 9 coal combustion residuals units and, in- 10 cluding during closure and corrective ac- 11 tion, to no more than 35 micrograms per 12 square meter, or another standard estab- 13 lished by the Administrator that will pro- 14 tect human health, including the health of 15 vulnerable or disproportionately exposed 16 subpopulations, and require air monitoring 17 and public reporting to ensure such stand- 18 ard is met. 19 ‘‘(v) Require permit or other prior ap- 20 proval terms that do not exceed 5 years. 21 ‘‘(vi) Require permits for operation, 22 closure, and corrective action that ensure 23 compliance with all applicable require- 24 ments, and deny any permit for closure 25 VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 2396 IH that would allow coal combustion residuals 1 to be— 2 ‘‘(I) in contact with ground 3 water, including on an intermittent or 4 seasonal basis; or 5 ‘‘(II) in a location that does not 6 meet the requirements for new coal 7 combustion residuals units under part 8 257 of title 40, Code of Federal Regu- 9 lations, including but not limited to 10 floodplains. 11 ‘‘(vii) Prohibit, as open dumping, the 12 unencapsulated use of coal combustion re- 13 siduals when placed on land, unless, in the 14 case of soil amendment for agricultural 15 use, the placement meets limits established 16 by Environmental Protection Agency to 17 protect health and the environment. 18 ‘‘(viii) Require compliance with the 19 criteria in part 257 of title 40, Code of 20 Federal Regulations, for any coal combus- 21 tion residuals unit, without regard to when 22 the unit ceased accepting coal combustion 23 residuals. 24 VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 2396 IH ‘‘(ix) Require groundwater monitoring 1 methods that are sufficient to detect con- 2 taminants at levels defined in applicable 3 groundwater protection standards. 4 ‘‘(x) Add boron, hexavalent chromium, 5 manganese, and sulfate to the constituents 6 listed in Appendix IV to part 257 of title 7 40, Code of Federal Regulations. 8 ‘‘(xi) Require corrective action beyond 9 facility boundaries, as needed to protect 10 human health and the environment, includ- 11 ing the health of vulnerable or dispropor- 12 tionately exposed subpopulations. 13 ‘‘(xii) Require owners and operators 14 to complete remedial activities to prevent 15 further releases, to remediate any releases 16 and to restore the affected area to original 17 conditions as soon as feasible and to pub- 18 lish semi-annual progress reports on pub- 19 licly accessible websites from the date of 20 remedy selection until completion of the 21 remedy. 22 ‘‘(xiii) Require owners and operators 23 to determine whether releases of coal com- 24 bustion residuals constituents from coal 25 VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 2396 IH combustion residuals units threaten drink- 1 ing water wells and to supply alternative 2 sources of safe drinking water as soon as 3 feasible to well users, if water is adversely 4 impacted; 5 ‘‘(B) promulgate regulations that set forth 6 minimum requirements for State and Federal 7 coal combustion residuals permit programs, in- 8 cluding but not limited to public participation 9 requirements in accordance with paragraph 10 (8)(A)(i), enforcement capabilities, transparency 11 of compliance documents, and equity in applica- 12 tion to low-income communities, communities of 13 color, and other disproportionately impacted 14 populations; 15 ‘‘(C) promulgate regulations to require 16 owners of closed coal combustion residuals dis- 17 posal sites to identify the locations of such sites 18 through surveying, platting, or other measures, 19 together with recordation of such information 20 on the public record, to ensure that the loca- 21 tions where such wastes are disposed of are 22 known and can be located in the future; and 23 ‘‘(D) review under paragraph (1)(D) any 24 State program that has been approved under 25 VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 2396 IH paragraph (1)(B) to ensure compliance with the 1 revised criteria promulgated under subpara- 2 graph (A) and the regulations promulgated 3 under subparagraphs (B) and (C).’’. 4 Æ VerDate Sep 11 2014 04:13 Jun 05, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\H2396.IH H2396 pbinns on DSKJLVW7X2PROD with BILLS