< Back to H.R. 3409 (112th Congress, 2011–2013)

Text of the Stop the War on Coal Act of 2012

This bill was introduced in a previous session of Congress and was passed by the House on September 21, 2012 but was never passed by the Senate. The text of the bill below is as of Nov 13, 2012 (Referred to Senate Committee).

Source: GPO

IIB

112th CONGRESS

2d Session

H. R. 3409

IN THE SENATE OF THE UNITED STATES

November 13, 2012

Received; read twice and referred to the Committee on Environment and Public Works

AN ACT

To limit the authority of the Secretary of the Interior to issue regulations before December 31, 2013, under the Surface Mining Control and Reclamation Act of 1977.

1.

Short title; Table of contents

(a)

Short title

This Act may be cited as the Stop the War on Coal Act of 2012.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; Table of contents.

Title I—Limitation on authority to issue regulations under the Surface Mining Control and Reclamation Act of 1977

Sec. 101. Limitation on authority to issue regulations under the Surface Mining Control and Reclamation Act of 1977.

Sec. 102. Publication of scientific studies for proposed rules.

Title II—No greenhouse gas regulation under the Clean Air Act

Sec. 201. No regulation of emissions of greenhouse gases.

Sec. 202. Preserving one national standard for automobiles.

Title III—Transparency in Regulatory Analysis of Impacts on Nation

Sec. 301. Committee for the Cumulative Analysis of Regulations that Impact Energy and Manufacturing in the United States.

Sec. 302. Analyses.

Sec. 303. Reports; public comment.

Sec. 304. Additional provisions relating to certain rules.

Sec. 305. Consideration of feasibility and cost in establishing national ambient air quality standards.

Title IV—Management and disposal of coal combustion residuals

Sec. 401. Management and disposal of coal combustion residuals.

Sec. 402. 2000 Regulatory determination.

Sec. 403. Technical assistance.

Sec. 404. Federal Power Act.

Title V—Preserving State authority to make determinations relating to water quality standards

Sec. 501. State water quality standards.

Sec. 502. Permits for dredged or fill material.

Sec. 503. Deadlines for agency comments.

Sec. 504. Applicability of amendments.

Sec. 505. Reporting on harmful pollutants.

Sec. 506. Pipelines crossing streambeds.

Sec. 507. Impacts of EPA regulatory activity on employment and economic activity.

Title VI—REGIONAL HAZE REGULATORY RELIEF

Sec. 601. Implementation plans.

Sec. 602. Visibility protection for Federal Class I areas.

Title VII—No regional haze regulation on the coal-powered Navajo generating station

Sec. 701. Limitation on authority to issue regulations.

I

Limitation on authority to issue regulations under the Surface Mining Control and Reclamation Act of 1977

101.

Limitation on authority to issue regulations under the Surface Mining Control and Reclamation Act of 1977

The Secretary of the Interior may not, before December 31, 2013, issue or approve any proposed or final regulation under the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.) that would—

(1)

adversely impact employment in coal mines in the United States;

(2)

cause a reduction in revenue received by the Federal Government or any State, tribal, or local government, by reducing through regulation the amount of coal in the United States that is available for mining;

(3)

reduce the amount of coal available for domestic consumption or for export;

(4)

designate any area as unsuitable for surface coal mining and reclamation operations; or

(5)

expose the United States to liability for taking the value of privately owned coal through regulation.

102.

Publication of scientific studies for proposed rules

(a)

Requirement

Title VI of the Surface Mining Control and Reclamation Act of 1977 (16 U.S.C. 1291 et seq.) is amended by adding at the end the following:

722.

Publication of scientific studies for proposed rules

(a)

Requirement

The Secretary, or any other Federal official proposing a rule under this Act, shall publish with each rule proposed under this Act each scientific study the Secretary or other official, respectively, relied on in developing the rule.

(b)

Scientific study defined

In this section the term scientific study means a study that—

(1)

applies rigorous, systematic, and objective methodology to obtain reliable and valid knowledge relevant to the subject matter involved;

(2)

presents findings and makes claims that are appropriate to, and supported by, the methods that have been employed; and

(3)

includes, appropriate to the rule being proposed—

(A)

use of systematic, empirical methods that draw on observation or experiment;

(B)

use of data analyses that are adequate to support the general findings;

(C)

reliance on measurements or observational methods that provide reliable and generalizable findings;

(D)

strong claims of causal relationships, only with research designs that eliminate plausible competing explanations for observed results, such as, but not limited to, random-assignment experiments;

(E)

presentation of studies and methods in sufficient detail and clarity to allow for replication or, at a minimum, to offer the opportunity to build systematically on the findings of the research;

(F)

acceptance by a peer-reviewed journal or critique by a panel of independent experts through a comparably rigorous, objective, and scientific review; and

(G)

consistency of findings across multiple studies or sites to support the generality of results and conclusions.

.

(b)

Clerical amendment

The table of contents at the end of the first section of such Act is amended by adding at the end of the items relating to such title the following:

Sec. 722. Publication of scientific studies for proposed rules.

.

II

No greenhouse gas regulation under the Clean Air Act

201.

No regulation of emissions of greenhouse gases

Title III of the Clean Air Act (42 U.S.C. 7601 et seq.) is amended by adding at the end the following:

330.

No Regulation of emissions of greenhouse gases

(a)

Definition

In this section, the term greenhouse gas means any of the following:

(1)

Water vapor.

(2)

Carbon dioxide.

(3)

Methane.

(4)

Nitrous oxide.

(5)

Sulfur hexafluoride.

(6)

Hydrofluorocarbons.

(7)

Perfluorocarbons.

(8)

Any other substance subject to, or proposed to be subject to, regulation, action, or consideration under this Act to address climate change.

(b)

Limitation on agency action

(1)

Limitation

(A)

In general

The Administrator may not, under this Act, promulgate any regulation concerning, take action relating to, or take into consideration the emission of a greenhouse gas to address climate change.

(B)

Air pollutant definition

The definition of the term air pollutant in section 302(g) does not include a greenhouse gas. Notwithstanding the previous sentence, such definition may include a greenhouse gas for purposes of addressing concerns other than climate change.

(2)

Exceptions

Paragraph (1) does not prohibit the following:

(A)

Notwithstanding paragraph (4)(B), implementation and enforcement of the rule entitled Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards (as published at 75 Fed. Reg. 25324 (May 7, 2010) and without further revision) and implementation and enforcement of the rule entitled Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles (as published at 76 Fed. Reg. 57106 (September 15, 2011) and without further revision).

(B)

Implementation and enforcement of section 211(o).

(C)

Statutorily authorized Federal research, development, demonstration programs and voluntary programs addressing climate change.

(D)

Implementation and enforcement of title VI to the extent such implementation or enforcement only involves one or more class I substances or class II substances (as such terms are defined in section 601).

(E)

Implementation and enforcement of section 821 (42 U.S.C. 7651k note) of Public Law 101–549 (commonly referred to as the Clean Air Act Amendments of 1990).

(3)

Inapplicability of provisions

Nothing listed in paragraph (2) shall cause a greenhouse gas to be subject to part C of title I (relating to prevention of significant deterioration of air quality) or considered an air pollutant for purposes of title V (relating to permits).

(4)

Certain prior agency actions

The following rules and actions (including any supplement or revision to such rules and actions) are repealed and shall have no legal effect:

(A)

Mandatory Reporting of Greenhouse Gases, published at 74 Fed. Reg. 56260 (October 30, 2009).

(B)

Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, published at 74 Fed. Reg. 66496 (December 15, 2009).

(C)

Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs, published at 75 Fed. Reg. 17004 (April 2, 2010) and the memorandum from Stephen L. Johnson, Environmental Protection Agency (EPA) Administrator, to EPA Regional Administrators, concerning EPA’s Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program (December 18, 2008).

(D)

Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, published at 75 Fed. Reg. 31514 (June 3, 2010).

(E)

Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call, published at 75 Fed. Reg. 77698 (December 13, 2010).

(F)

Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Failure To Submit State Implementation Plan Revisions Required for Greenhouse Gases, published at 75 Fed. Reg. 81874 (December 29, 2010).

(G)

Action to Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Federal Implementation Plan, published at 75 Fed. Reg. 82246 (December 30, 2010).

(H)

Action to Ensure Authority to Implement Title V Permitting Programs Under the Greenhouse Gas Tailoring Rule, published at 75 Fed. Reg. 82254 (December 30, 2010).

(I)

Determinations Concerning Need for Error Correction, Partial Approval and Partial Disapproval, and Federal Implementation Plan Regarding Texas Prevention of Significant Deterioration Program, published at 75 Fed. Reg. 82430 (December 30, 2010).

(J)

Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans, published at 75 Fed. Reg. 82536 (December 30, 2010).

(K)

Determinations Concerning Need for Error Correction, Partial Approval and Partial Disapproval, and Federal Implementation Plan Regarding Texas Prevention of Significant Deterioration Program; Proposed Rule, published at 75 Fed. Reg. 82365 (December 30, 2010).

(L)

Except for actions listed in paragraph (2), any other Federal action under this Act occurring before the date of enactment of this section that constitutes a stationary source permitting requirement or an emissions standard for a greenhouse gas to address climate change.

(5)

State action

(A)

No limitation

This section does not limit or otherwise affect the authority of a State to adopt, amend, enforce, or repeal State laws and regulations pertaining to the emission of a greenhouse gas.

(B)

Exception

(i)

Rule

Notwithstanding subparagraph (A), any provision described in clause (ii)—

(I)

is not federally enforceable;

(II)

is not deemed to be a part of Federal law; and

(III)

is deemed to be stricken from the plan described in clause (ii)(I) or the program or permit described in clause (ii)(II), as applicable.

(ii)

Provision defined

For purposes of clause (i), the term provision means any provision that—

(I)

is contained in a State implementation plan under section 110 and authorizes or requires a limitation on, or imposes a permit requirement for, the emission of a greenhouse gas to address climate change; or

(II)

is part of an operating permit program under title V, or a permit issued pursuant to title V, and authorizes or requires a limitation on the emission of a greenhouse gas to address climate change.

(C)

Action by Administrator

The Administrator may not approve or make federally enforceable any provision described in subparagraph (B)(ii).

.

202.

Preserving one national standard for automobiles

(a)

Finding

Congress finds that the emissions of greenhouse gases from a motor vehicle tailpipe are related to fuel economy.

(b)

Report required

Not later than 60 days after the date of enactment of this Act, the Secretary of Transportation shall submit a report to the Congress that, notwithstanding section 201, assumes the implementation and enforcement of the final rule entitled 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards (issued on August 28, 2012) and estimates—

(1)

the total number of jobs that will be lost due to decreased demand by year caused by the rule;

(2)

the number of additional fatalities and injuries that will be caused by the rule; and

(3)

the additional cost to the economy of the redundant regulation of fuel economy and greenhouse gas emissions by the Environmental Protection Agency and State agencies for model years 2011 through 2025.

(c)

Consultation

Other than to gather basic factual information, the Secretary of Transportation shall not consult with the Administrator of the Environmental Protection Agency or any official from the California Air Resources Board in fulfilling the requirement described in subsection (b).

(d)

Amendment to the Clean Air Act

Section 209(b) of the Clean Air Act (42 U.S.C. 7543) is amended by adding at the end the following:

(4)

With respect to standards for emissions of greenhouse gases (as defined in section 330) for model year 2017 or any subsequent model year new motor vehicles and new motor vehicle engines—

(A)

the Administrator may not waive application of subsection (a); and

(B)

no waiver granted prior to the date of enactment of this paragraph may be construed to waive the application of subsection (a).

.

III

Transparency in Regulatory Analysis of Impacts on Nation

301.

Committee for the Cumulative Analysis of Regulations that Impact Energy and Manufacturing in the United States

(a)

Establishment

The President shall establish a committee to be known as the Committee for the Cumulative Analysis of Regulations that Impact Energy and Manufacturing in the United States (in this Act referred to as the Committee) to analyze and report on the cumulative and incremental impacts of certain rules and actions of the Environmental Protection Agency, in accordance with sections 302 and 303.

(b)

Members

The Committee shall be composed of the following officials (or their designees):

(1)

The Secretary of Agriculture, acting through the Chief Economist.

(2)

The Secretary of Commerce, acting through the Chief Economist and the Under Secretary for International Trade.

(3)

The Secretary of Labor, acting through the Commissioner of the Bureau of Labor Statistics.

(4)

The Secretary of Energy, acting through the Administrator of the Energy Information Administration.

(5)

The Secretary of the Treasury, acting through the Deputy Assistant Secretary for Environment and Energy of the Department of the Treasury.

(6)

The Administrator of the Environmental Protection Agency.

(7)

The Chairman of the Council of Economic Advisors.

(8)

The Chairman of the Federal Energy Regulatory Commission.

(9)

The Administrator of the Office of Information and Regulatory Affairs.

(10)

The Chief Counsel for Advocacy of the Small Business Administration.

(11)

The Chairman of the United States International Trade Commission, acting through the Office of Economics.

(c)

Chair

The Secretary of Commerce shall serve as Chair of the Committee. In carrying out the functions of the Chair, the Secretary of Commerce shall consult with the members serving on the Committee pursuant to paragraphs (5) and (11) of subsection (b).

(d)

Consultation

In conducting analyses under section 302 and preparing reports under section 303, the Committee shall consult with, and consider pertinent reports issued by, the Electric Reliability Organization certified under section 215(c) of the Federal Power Act (16 U.S.C. 824o(c)).

(e)

Termination

The Committee shall terminate 60 days after submitting its final report pursuant to section 303(c).

302.

Analyses

(a)

Scope

The Committee shall conduct analyses, for each of the calendar years 2016, 2020, and 2030, of the following:

(1)

The cumulative impact of covered rules that are promulgated as final regulations on or before January 1, 2013, in combination with covered actions.

(2)

The cumulative impact of all covered rules (including covered rules that have not been promulgated as final regulations on or before January 1, 2013), in combination with covered actions.

(3)

The incremental impact of each covered rule not promulgated as a final regulation on or before January 1, 2013, relative to an analytic baseline representing the results of the analysis conducted under paragraph (1).

(b)

Contents

The Committee shall include in each analysis conducted under this section the following:

(1)

Estimates of the impacts of the covered rules and covered actions with regard to—

(A)

the global economic competitiveness of the United States, particularly with respect to energy intensive and trade sensitive industries;

(B)

other cumulative costs and cumulative benefits, including evaluation through a general equilibrium model approach;

(C)

any resulting change in national, State, and regional electricity prices;

(D)

any resulting change in national, State, and regional fuel prices;

(E)

the impact on national, State, and regional employment during the 5-year period beginning on the date of enactment of this Act, and also in the long term, including secondary impacts associated with increased energy prices and facility closures; and

(F)

the reliability and adequacy of bulk power supply in the United States.

(2)

Discussion of key uncertainties and assumptions associated with each estimate.

(3)

A sensitivity analysis.

(4)

Discussion, and where feasible an assessment, of the cumulative impact of the covered rules and covered actions on—

(A)

consumers;

(B)

small businesses;

(C)

regional economies;

(D)

State, local, and tribal governments;

(E)

low-income communities;

(F)

public health, including health effects associated with regulatory costs;

(G)

local and industry-specific labor markets; and

(H)

agriculture,

as well as key uncertainties associated with each topic.
(c)

Methods

In conducting analyses under this section, the Committee shall use the best available methods, consistent with guidance from the Office of Information and Regulatory Affairs and the Office of Management and Budget Circular A–4.

(d)

Data

In conducting analyses under this section, the Committee—

(1)

shall use the best data that are available to the public or supplied to the Committee by its members, including the most recent such data appropriate for this analysis representing air quality, facility emissions, and installed controls; and

(2)

is not required to create data or to use data that are not readily accessible.

(e)

Covered rules

In this section, the term covered rule means the following:

(1)

The following published rules (including any successor or substantially similar rule):

(A)

The Clean Air Interstate Rule (as defined in section 304(a)(4)).

(B)

National Ambient Air Quality Standards for Ozone, published at 73 Fed. Reg. 16436 (March 27, 2008).

(C)

National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters, published at 76 Fed. Reg. 15608 (March 21, 2011).

(D)

National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers, published at 76 Fed. Reg. 15554 (March 21, 2011).

(E)

National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, published at 77 Fed. Reg. 9304 (February 16, 2012).

(F)

Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities, published at 75 Fed. Reg. 35127 (June 21, 2010).

(G)

Primary National Ambient Air Quality Standard for Sulfur Dioxide, published at 75 Fed. Reg. 35520 (June 22, 2010).

(H)

Primary National Ambient Air Quality Standards for Nitrogen Dioxide, published at 75 Fed. Reg. 6474 (February 9, 2010).

(I)

National Emission Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants, published at 75 Fed. Reg. 54970 (September 9, 2010).

(2)

The following additional rules or guidelines promulgated on or after January 1, 2009:

(A)

Any rule or guideline promulgated under section 111(b) or 111(d) of the Clean Air Act (42 U.S.C. 7411(b), 7411(d)) to address climate change.

(B)

Any rule or guideline promulgated by the Administrator of the Environmental Protection Agency, a State, a local government, or a permitting agency under or as the result of section 169A or 169B of the Clean Air Act (42 U.S.C. 7491, 7492).

(C)

Any rule establishing or modifying a national ambient air quality standard under section 109 of the Clean Air Act (42 U.S.C. 7409).

(D)

Any rule addressing fuels under title II of the Clean Air Act (42 U.S.C. 7521 et seq.) as described in the Unified Agenda of Federal Regulatory and Deregulatory Actions under Regulatory Identification Number 2060–AQ86, or any substantially similar rule, including any rule under section 211(v) of the Clean Air Act (42 U.S.C. 7545(v)).

(f)

Covered actions

In this section, the term covered action means any action on or after January 1, 2009, by the Administrator of the Environmental Protection Agency, a State, a local government, or a permitting agency as a result of the application of part C of title I (relating to prevention of significant deterioration of air quality) or title V (relating to permitting) of the Clean Air Act (42 U.S.C. 7401 et seq.), if such application occurs with respect to an air pollutant that is identified as a greenhouse gas in Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, published at 74 Fed. Reg. 66496 (December 15, 2009).

303.

Reports; public comment

(a)

Preliminary report

Not later than March 31, 2013, the Committee shall make public and submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Environment and Public Works of the Senate a preliminary report containing the results of the analyses conducted under section 302.

(b)

Public comment period

The Committee shall accept public comments regarding the preliminary report submitted under subsection (a) for a period of 120 days after such submission.

(c)

Final report

Not later than September 30, 2013, the Committee shall submit to Congress a final report containing the analyses conducted under section 302, including any revisions to such analyses made as a result of public comments, and a response to such comments.

304.

Additional provisions relating to certain rules

(a)

Cross-State Air Pollution rule/Transport rule

(1)

Earlier rules

The rule entitled Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, published at 76 Fed. Reg. 48208 (August 8, 2011), and any successor or substantially similar rule, shall be of no force or effect, and shall be treated as though such rule had never taken effect.

(2)

Continued applicability of Clean Air Interstate Rule

In place of any rule described in paragraph (1), the Administrator of the Environmental Protection Agency (in this section referred to as the Administrator) shall continue to implement the Clean Air Interstate Rule.

(3)

Additional rulemakings

(A)

Issuance of new rules

The Administrator—

(i)

shall not issue any proposed or final rule under section 110(a)(2)(D)(i)(I) or section 126 of the Clean Air Act (42 U.S.C. 7410(a)(2)(D)(i)(I), 7426) relating to national ambient air quality standards for ozone or particulate matter (including any modification of the Clean Air Interstate Rule) before the date that is 3 years after the date on which the Committee submits the final report under section 303(c);

(ii)

in issuing any rule described in clause (i), shall base the rule on actual monitored (and not modeled) data and shall, notwithstanding section 110(a)(2)(D)(i)(I), allow the trading of emissions allowances among entities covered by the rule irrespective of the States in which such entities are located;

(iii)

shall not issue any proposed or final rule under section 109 of the Clean Air Act (42 U.S.C. 7409) that relies upon scientific or technical data that have not been made available to the public; and

(iv)

shall not issue any proposed or final rule under section 109 of the Clean Air Act (42 U.S.C. 7409), unless the accompanying regulatory impact analysis, as required under Executive Order No. 12866, is peer reviewed in a manner consistent with the Office of Management and Budget’s Final Information Quality Bulletin for Peer Review and the third edition of the Environmental Protection Agency’s Peer Review Handbook.

(B)

Implementation schedule

In promulgating any final rule described in subparagraph (A)(i), the Administrator shall establish a date for State implementation of the standards established by such final rule that is not earlier than 3 years after the date of publication of such final rule.

(4)

Definition of Clean Air Interstate Rule

For purposes of this section, the term Clean Air Interstate Rule means the Clean Air Interstate Rule and the rule establishing Federal Implementation Plans for the Clean Air Interstate Rule as promulgated and modified by the Administrator (70 Fed. Reg. 25162 (May 12, 2005), 71 Fed. Reg. 25288 (April 28, 2006), 72 Fed. Reg. 55657 (October 1, 2007), 72 Fed. Reg. 59190 (October 19, 2007), 72 Fed. Reg. 62338 (November 2, 2007), 74 Fed. Reg. 56721 (November 3, 2009)).

(b)

Steam generating unit rules

(1)

Earlier rules

The proposed rule entitled National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial- Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units published at 76 Fed. Reg. 24976 (May 3, 2011), and any final rule that is based on such proposed rule and is issued prior to the date of the enactment of this Act, shall be of no force and effect, and shall be treated as though such proposed or final rule had never been issued. In conducting analyses under section 302(a), the Committee shall analyze the rule described in section 302(e)(1)(E) (including any successor or substantially similar rule) as if the preceding sentence did not apply to such rule.

(2)

Promulgation of final rules

In place of the rules described in paragraph (1), the Administrator shall—

(A)

issue regulations establishing national emission standards for coal-and oil-fired electric utility steam generating units under section 112 of the Clean Air Act (42 U.S.C. 7412) with respect to each hazardous air pollutant for which the Administrator finds such regulations are appropriate and necessary pursuant to subsection (n)(1)(A) of such section;

(B)

issue regulations establishing standards of performance for fossil-fuel-fired electric utility, industrial-commercial-institutional, and small industrial-commercial-institutional steam generating units under section 111 of the Clean Air Act (42 U.S.C. 111); and

(C)

issue the final regulations required by subparagraphs (A) and (B)—

(i)

after issuing proposed regulations under such subparagraphs;

(ii)

after consideration of the final report submitted under section 303(c); and

(iii)

not earlier than the date that is 12 months after the date on which the Committee submits such report to the Congress, or such later date as may be determined by the Administrator.

(3)

Compliance provisions

(A)

Establishment of compliance dates

In promulgating the regulations under paragraph (2), the Administrator—

(i)

shall establish a date for compliance with the standards and requirements under such regulations that is not earlier than 5 years after the effective date of the regulations; and

(ii)

in establishing a date for such compliance, shall take into consideration—

(I)

the costs of achieving emissions reductions;

(II)

any non-air quality health and environmental impact and energy requirements of the standards and requirements;

(III)

the feasibility of implementing the standards and requirements, including the time needed to—

(aa)

obtain necessary permit approvals; and

(bb)

procure, install, and test control equipment;

(IV)

the availability of equipment, suppliers, and labor, given the requirements of the regulations and other proposed or finalized regulations; and

(V)

potential net employment impacts.

(B)

New sources

With respect to the regulations promulgated pursuant to paragraph (2)—

(i)

the date on which the Administrator proposes a regulation pursuant to paragraph (2)(A) establishing an emission standard under section 112 of the Clean Air Act (42 U.S.C. 7412) shall be treated as the date on which the Administrator first proposes such a regulation for purposes of applying the definition of a new source under section 112(a)(4) of such Act (42 U.S.C. 7412(a)(4));

(ii)

the date on which the Administrator proposes a regulation pursuant to paragraph (2)(B) establishing a standard of performance under section 111 of the Clean Air Act (42 U.S.C. 7411) shall be treated as the date on which the Administrator proposes such a regulation for purposes of applying the definition of a new source under section 111(a)(2) of such Act (42 U.S.C. 7411(a)(2));

(iii)

for purposes of any emission standard or limitation applicable to electric utility steam generating units, the term new source means a stationary source for which a preconstruction permit or other preconstruction approval required under the Clean Air Act (42 U.S.C. 7401 et seq.) has been issued after the effective date of such emissions standard or limitation; and

(iv)

for purposes of clause (iii), the date of issuance of a preconstruction permit or other preconstruction approval is deemed to be the date on which such permit or approval is issued to the applicant irrespective of any administrative or judicial review occurring after such date.

(C)

Rule of construction

Nothing in this subsection shall be construed to restrict or otherwise affect the provisions of paragraphs (3)(B) and (4) of section 112(i) of the Clean Air Act (42 U.S.C. 7412(i)).

(4)

Other provisions

(A)

Establishment of standards achievable in practice

The regulations promulgated pursuant to paragraph (2)(A) of this section shall apply section 112(d)(3) of the Clean Air Act (42 U.S.C. 7412(d)(3)) in accordance with the following:

(i)

New sources

With respect to new sources:

(I)

The Administrator shall identify the best controlled similar source for each source category or subcategory.

(II)

The best controlled similar source for a category or subcategory shall be the single source that is determined by the Administrator to be the best controlled, in the aggregate, for all of the hazardous air pollutants for which the Administrator intends to issue standards for such source category or subcategory, under actual operating conditions, taking into account the variability in actual source performance, source design, fuels, controls, ability to measure pollutant emissions, and operating conditions.

(ii)

Existing sources

With respect to existing sources:

(I)

The Administrator shall identify one group of sources that constitutes the best performing 12 percent of existing sources for each source category or subcategory.

(II)

The group constituting the best performing 12 percent of existing sources for a category or subcategory shall be the single group that is determined by the Administrator to be the best performing, in the aggregate, for all of the hazardous air pollutants for which the Administrator intends to issue standards for such source category or subcategory, under actual operating conditions, taking into account the variability in actual source performance, source design, fuels, controls, ability to measure pollutant emissions, and operating conditions.

(B)

Regulatory alternatives

For the regulations promulgated pursuant to paragraph (2) of this section, from among the range of regulatory alternatives authorized under the Clean Air Act (42 U.S.C. 7401 et seq.), including work practice standards under section 112(h) of such Act (42 U.S.C. 7412(h)), the Administrator shall impose the least burdensome, consistent with the purposes of such Act and Executive Order No. 13563 published at 76 Fed. Reg. 3821 (January 21, 2011).

305.

Consideration of feasibility and cost in establishing national ambient air quality standards

In establishing any national primary or secondary ambient air quality standard under section 109 of the Clean Air Act (42 U.S.C. 7409), the Administrator of the Environmental Protection Agency shall take into consideration feasibility and cost.

IV

Management and disposal of coal combustion residuals

401.

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.

.

402.

2000 Regulatory determination

Nothing in this title, or the amendments made by this title, 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.).

403.

Technical assistance

Nothing in this title, or the amendments made by this title, 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.).

404.

Federal Power Act

Nothing in this title, or the amendments made by this title, 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 title) under section 215(b)(1) of the Federal Power Act (16 U.S.C. 824o(b)(1)).

V

Preserving State authority to make determinations relating to water quality standards

501.

State water quality standards

(a)

State water quality standards

Section 303(c)(4) of the Federal Water Pollution Control Act (33 U.S.C. 1313(c)(4)) is amended—

(1)

by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively;

(2)

by striking (4) and inserting (4)(A);

(3)

by striking The Administrator shall promulgate and inserting the following:

(B)

The Administrator shall promulgate

; and

(4)

by adding at the end the following:

(C)

Notwithstanding subparagraph (A)(ii), the Administrator may not promulgate a revised or new standard for a pollutant in any case in which the State has submitted to the Administrator and the Administrator has approved a water quality standard for that pollutant, unless the State concurs with the Administrator’s determination that the revised or new standard is necessary to meet the requirements of this Act.

.

(b)

Federal licenses and permits

Section 401(a) of such Act (33 U.S.C. 1341(a)) is amended by adding at the end the following:

(7)

With respect to any discharge, if a State or interstate agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate determines under paragraph (1) that the discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307, the Administrator may not take any action to supersede the determination.

.

(c)

State NPDES permit programs

Section 402(c) of such Act (42 U.S.C. 1342(c)) is amended by adding at the end the following:

(5)

Limitation on authority of Administrator to withdraw approval of State programs

The Administrator may not withdraw approval of a State program under paragraph (3) or (4), or limit Federal financial assistance for the State program, on the basis that the Administrator disagrees with the State regarding—

(A)

the implementation of any water quality standard that has been adopted by the State and approved by the Administrator under section 303(c); or

(B)

the implementation of any Federal guidance that directs the interpretation of the State’s water quality standards.

.

(d)

Limitation on authority of Administrator To object to individual permits

Section 402(d) of such Act (33 U.S.C. 1342(d)) is amended by adding at the end the following:

(5)

The Administrator may not object under paragraph (2) to the issuance of a permit by a State on the basis of—

(A)

the Administrator’s interpretation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c); or

(B)

the implementation of any Federal guidance that directs the interpretation of the State’s water quality standards.

.

502.

Permits for dredged or fill material

(a)

Authority of EPA Administrator

Section 404(c) of the Federal Water Pollution Control Act (33 U.S.C. 1344(c)) is amended—

(1)

by striking (c) and inserting (c)(1); and

(2)

by adding at the end the following:

(2)

Paragraph (1) shall not apply to any permit if the State in which the discharge originates or will originate does not concur with the Administrator’s determination that the discharge will result in an unacceptable adverse effect as described in paragraph (1).

(3)

Following the date of issuance of a permit by the Secretary in accordance with this section, the Administrator may not take any action under paragraph (1) to retroactively invalidate the permit.

.

(b)

State permit programs

The first sentence of section 404(g)(1) of such Act (33 U.S.C. 1344(g)(1)) is amended by striking The Governor of any State desiring to administer its own individual and general permit program for the discharge and inserting The Governor of any State desiring to administer its own individual and general permit program for some or all of the discharges.

503.

Deadlines for agency comments

Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) is amended—

(1)

in subsection (m) by striking ninetieth day and inserting 30th day (or the 60th day if additional time is requested); and

(2)

in subsection (q)—

(A)

by striking (q) and inserting (q)(1); and

(B)

by adding at the end the following:

(2)

The Administrator and the head of a department or agency referred to in paragraph (1) shall each submit any comments with respect to an application for a permit under subsection (a) or (e) not later than the 30th day (or the 60th day if additional time is requested) after the date of receipt of an application for a permit under that subsection.

.

504.

Applicability of amendments

The amendments made by this title shall apply to actions taken on or after the date of enactment of this Act, including actions taken with respect to permit applications that are pending or revised or new standards that are being promulgated as of such date of enactment.

505.

Reporting on harmful pollutants

Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Administrator of the Environmental Protection Agency shall submit to Congress a report on any increase or reduction in waterborne pathogenic microorganisms (including protozoa, viruses, bacteria, and parasites), toxic chemicals, or toxic metals (such as lead and mercury) in waters regulated by a State under the provisions of this title, including the amendments made by this title.

506.

Pipelines crossing streambeds

None of the provisions of this title, including the amendments made by this title, shall be construed to limit the authority of the Administrator of the Environmental Protection Agency, as in effect on the day before the date of enactment of this Act, to regulate a pipeline that crosses a streambed.

507.

Impacts of EPA regulatory activity on employment and economic activity

(a)

Analysis of impacts of actions on employment and economic activity

(1)

Analysis

Before taking a covered action, the Administrator shall analyze the impact, disaggregated by State, of the covered action on employment levels and economic activity, including estimated job losses and decreased economic activity.

(2)

Economic models

(A)

In general

In carrying out paragraph (1), the Administrator shall utilize the best available economic models.

(B)

Annual GAO report

Not later than December 31st of each year, the Comptroller General of the United States shall submit to Congress a report on the economic models used by the Administrator to carry out this subsection.

(3)

Availability of information

With respect to any covered action, the Administrator shall—

(A)

post the analysis under paragraph (1) as a link on the main page of the public Internet Web site of the Environmental Protection Agency; and

(B)

request that the Governor of any State experiencing more than a de minimis negative impact post such analysis in the Capitol of such State.

(b)

Public hearings

(1)

In general

If the Administrator concludes under subsection (a)(1) that a covered action will have more than a de minimis negative impact on employment levels or economic activity in a State, the Administrator shall hold a public hearing in each such State at least 30 days prior to the effective date of the covered action.

(2)

Time, location, and selection

A public hearing required under paragraph (1) shall be held at a convenient time and location for impacted residents. In selecting a location for such a public hearing, the Administrator shall give priority to locations in the State that will experience the greatest number of job losses.

(c)

Notification

If the Administrator concludes under subsection (a)(1) that a covered action will have more than a de minimis negative impact on employment levels or economic activity in any State, the Administrator shall give notice of such impact to the State’s Congressional delegation, Governor, and Legislature at least 45 days before the effective date of the covered action.

(d)

Definitions

In this section, the following definitions apply:

(1)

Administrator

The term Administrator means the Administrator of the Environmental Protection Agency.

(2)

Covered action

The term covered action means any of the following actions taken by the Administrator under the Federal Water Pollution Control Act (33 U.S.C. 1201 et seq.):

(A)

Issuing a regulation, policy statement, guidance, response to a petition, or other requirement.

(B)

Implementing a new or substantially altered program.

(3)

More than a de minimis negative impact

The term more than a de minimis negative impact means the following:

(A)

With respect to employment levels, a loss of more than 100 jobs. Any offsetting job gains that result from the hypothetical creation of new jobs through new technologies or government employment may not be used in the job loss calculation.

(B)

With respect to economic activity, a decrease in economic activity of more than $1,000,000 over any calendar year. Any offsetting economic activity that results from the hypothetical creation of new economic activity through new technologies or government employment may not be used in the economic activity calculation.

VI

REGIONAL HAZE REGULATORY RELIEF

601.

Implementation plans

Section 110 of the Clean Air Act (42 U.S.C. 7410) is amended—

(1)

in subsection (c), by striking (c)(1) The Administrator and all that follows through the end of paragraph (1) and inserting the following:

(c)

Federal plans

(1)

Plans

(A)

In general

Except as provided in subparagraph (C), unless the conditions described in subparagraph (B) are met, the Administrator shall promulgate a Federal implementation plan at any time after the date that is 2 years after the date on which the Administrator—

(i)

finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A); or

(ii)

disapproves a State implementation plan submission.

(B)

Conditions

The conditions described in this subparagraph are that, before the date on which the Administrator promulgates a Federal implementation plan—

(i)

a State corrects a deficiency in a State implementation plan or plan revision submitted by the State; and

(ii)

the Administrator approves the plan or plan revision.

(C)

Visibility protection plans

In the case of a Federal implementation plan promulgated after the date of enactment of this subparagraph in place of a State implementation plan under section 169A—

(i)

the Administrator shall promulgate such Federal implementation plan only if the Administrator makes a finding that the State submitting the State implementation plan failed to consider the factors described in paragraphs (1) and (2) of section 169A(g) in preparing and submitting the plan; and

(ii)

compliance with the requirements of such Federal implementation plan shall not be required earlier than 5 years after the date of promulgation.

; and

(2)

in subsection (k)—

(A)

by striking paragraph (3) and inserting the following:

(3)

Full approval and disapproval

(A)

In general

Except as provided in subparagraphs (B) and (C), in the case of any submission for which the Administrator is required to act under paragraph (2), the Administrator shall approve the submission as a whole if the submission meets all of the applicable requirements of this Act.

(B)

Review

In reviewing any State implementation plan submitted pursuant to section 169A, the Administrator shall limit the review only to a determination of whether the State submitting the State implementation plan considered the factors described in paragraphs (1) and (2) of section 169A(g) in preparing and submitting the plan.

(C)

Visibility plans

The Administrator shall approve as a whole any implementation plan submitted pursuant to section 169A that was prepared and submitted after consideration of the factors described in paragraphs (1) and (2) of section 169A(g).

; and

(B)

in paragraph (5)—

(i)

in the first sentence, by striking Whenever and inserting the following:

(A)

In general

Whenever

; and

(ii)

by adding at the end the following:

(B)

Visibility plans

Notwithstanding subparagraph (A), with respect to an implementation plan approved pursuant to section 169A, the Administrator shall only find that such a plan is substantially inadequate to meet standards for air pollutants that cause or contribute to the impairment of visibility, or any other applicable standard or requirement, under that section if the Administrator makes a finding that, in preparing the plan, the submitting State failed to consider the factors described in paragraphs (1) and (2) of section 169A(g).

(C)

Existing visibility plans

(i)

Request for revocation

At any time after the date of enactment of this subparagraph—

(I)

a State may request that the existing Federal or State implementation plan for the State regarding visibility, or any determination made in calendar year 2012 or 2013 of best available retrofit technology pursuant to section 169A, be revoked; and

(II)

upon receipt of such a request, the Administrator shall revoke the implementation plan.

(ii)

Submission of new or revised plan

Upon a revocation under clause (i)(II), the State that requested the revocation shall, not later than 2 years after such revocation, submit to the Administrator a new or revised visibility plan in accordance with this Act.

.

602.

Visibility protection for Federal Class I areas

Section 169A of the Clean Air Act (42 U.S.C. 7491) is amended—

(1)

in subsection (b)(2), in the matter preceding subparagraph (A), by striking as may be necessary and inserting as the State determines, at the sole discretion of the State after considering factors described in this section and providing adequate opportunity for public comment, may be necessary; and

(2)

in subsection (g)—

(A)

by striking paragraph (1) and inserting the following:

(1)
(A)

in determining reasonable progress, there shall be taken into consideration—

(i)

the costs of compliance;

(ii)

the time necessary for compliance;

(iii)

the energy and nonair quality environmental impacts of compliance;

(iv)

the remaining useful life of any existing source subject to requirements under this section;

(v)

the degree of improvement in visibility that may reasonably be anticipated to result from measures described in the applicable implementation plan; and

(vi)

the economic impacts to the State (including people of the State);

(B)

in consideration of costs of compliance pursuant to subparagraph (A)(i), the State may use source-specific cost estimations developed by a licensed professional engineer as an alternate to other methods of estimation approved by the Administrator; and

(C)

in consideration of the degree of improvement in visibility pursuant to subparagraph (A)(v), the State may use alternate modeling techniques or methods than those prescribed by the Administrator in the Agency’s Guideline on Air Quality Models under appendix W to part 51 of title 40, Code of Federal Regulations, and, where available, measured emissions and monitoring data shall be used;

;

(B)

in paragraph (2)—

(i)

by striking (2) in determining best available retrofit technology the State and inserting the following:

(2)

in determining the best available retrofit technology—

(A)

the State

;

(ii)

in subparagraph (A) (as designated by clause (i)), by inserting the economic impacts to the State (including people of the State), after life of the source,;

(iii)

by striking technology; and inserting technology; and; and

(iv)

by adding at the end the following:

(B)

in consideration of the costs of compliance pursuant to subparagraph (A), the State may use source-specific cost estimations developed by a licensed professional engineer as an alternate to other methods of estimation approved by the Administrator;

(C)

with respect to consideration of the degree of improvement in visibility pursuant to subparagraph (A)—

(i)

the State may use alternate modeling techniques or methods than those prescribed by the Administrator in the Agency’s Guideline on Air Quality Models under appendix W to part 51 of title 40, Code of Federal Regulations;

(ii)

the State may consider the degree of improvement in visibility in the mandatory class I Federal area that is most affected by emissions from the source without considering the degree of improvement in visibility in any other such area; and

(iii)

the Administrator (in any case in which the Administrator has authority to determine emission limitations which reflect such technology) may not consider the degree of improvement in visibility in any area other than the mandatory class I Federal area that is most affected by emissions from the source; and

(D)

the determination of best available retrofit technology by the State for any source shall be subject to review by the Administrator, an administrative entity, or a Federal or State court only pursuant to a clearly erroneous standard of review;

; and

(C)

in paragraph (4), by striking (or the date of promulgation of such a plan revision in the case of action by the Administrator under section 110(c) for purposes of this section).

VII

No regional haze regulation on the coal-powered Navajo generating station

701.

Limitation on authority to issue regulations

The Administrator of the Environmental Protection Agency shall not promulgate any Federal implementation plan pursuant to section 169A or 169B of the Clean Air Act (42 U.S.C. 7491, 7492; relating to visibility protection) that would—

(1)

adversely impact employment at the coal-powered Navajo Generating Station or other coal-fired power plants and coal mines on tribal lands in northern Arizona;

(2)

directly or indirectly diminish the revenue received by the Federal Government or any State, tribal or local government by reducing through regulation the amount of coal that is available for mining on Navajo and Hopi Reservation lands;

(3)

cause a reduction in coal-based revenue to meet financial obligations required by federally authorized Indian water rights settlements, pursuant to section 403(f) of the Colorado River Basin Project Act (43 U.S.C. 1543(f)):

(4)

reduce the amount of coal, or increase the cost of coal, available for the Navajo Generating Station’s Federal responsibility to deliver water and power, as authorized by the Colorado River Basin Project Act (43 U.S.C. 1501 et seq.); or

(5)

expose the United States to liability for taking the value of tribally-owned coal in northern Arizona through regulation.

Passed the House of Representatives September 21, 2012.

Karen L. Haas,

Clerk