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 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


jbell on DSK7SPTVN1PROD with 
2 

HR 3409 RFS 

1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘Stop the War on Coal Act of 2012’’. 

4 (b) TABLE OF CONTENTS.—The table of contents for 

5 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. 


jbell on DSK7SPTVN1PROD with 
3 

HR 3409 RFS 

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 COALPOWERED NAVAJO GENERATING STATION 

Sec. 701. Limitation on authority to issue regulations. 

1 TITLE I—LIMITATION ON AU2 THORITY TO ISSUE REGULA3 TIONS UNDER THE SURFACE 

4 MINING CONTROL AND REC5 LAMATION ACT OF 1977 

6 SEC. 101. LIMITATION ON AUTHORITY TO ISSUE REGULA7 TIONS UNDER THE SURFACE MINING CON8 TROL AND RECLAMATION ACT OF 1977. 

9 The Secretary of the Interior may not, before Decem10 ber 31, 2013, issue or approve any proposed or final regu11 lation under the Surface Mining Control and Reclamation 

12 Act of 1977 (30 U.S.C. 1201 et seq.) that would— 

13 (1) adversely impact employment in coal mines 

14 in the United States; 

15 (2) cause a reduction in revenue received by the 

16 Federal Government or any State, tribal, or local 

17 government, by reducing through regulation the 

18 amount of coal in the United States that is available 

19 for mining; 

20 (3) reduce the amount of coal available for do21 mestic consumption or for export; 


jbell on DSK7SPTVN1PROD with 
4 

HR 3409 RFS 

1 (4) designate any area as unsuitable for surface 

2 coal mining and reclamation operations; or 

3 (5) expose the United States to liability for tak4 ing the value of privately owned coal through regula5 tion. 

6 SEC. 102. PUBLICATION OF SCIENTIFIC STUDIES FOR PRO7 POSED RULES. 

8 (a) REQUIREMENT.—Title VI of the Surface Mining 

9 Control and Reclamation Act of 1977 (16 U.S.C. 1291 

10 et seq.) is amended by adding at the end the following: 

11 ‘‘PUBLICATION OF SCIENTIFIC STUDIES FOR PROPOSED

12 RULES

13 ‘‘SEC. 722. (a) REQUIREMENT.—The Secretary, or 

14 any other Federal official proposing a rule under this Act, 

15 shall publish with each rule proposed under this Act each 

16 scientific study the Secretary or other official, respectively, 

17 relied on in developing the rule. 

18 ‘‘(b) SCIENTIFIC STUDY DEFINED.—In this section 

19 the term ‘scientific study’ means a study that— 

20 ‘‘(1) applies rigorous, systematic, and objective 

21 methodology to obtain reliable and valid knowledge 

22 relevant to the subject matter involved; 

23 ‘‘(2) presents findings and makes claims that 

24 are appropriate to, and supported by, the methods 

25 that have been employed; and 


jbell on DSK7SPTVN1PROD with 
5 

HR 3409 RFS 

1 ‘‘(3) includes, appropriate to the rule being pro2 posed— 

3 ‘‘(A) use of systematic, empirical methods 

4 that draw on observation or experiment; 

5 ‘‘(B) use of data analyses that are ade6 quate to support the general findings; 

7 ‘‘(C) reliance on measurements or observa8 tional methods that provide reliable and gener9 alizable findings; 

10 ‘‘(D) strong claims of causal relationships, 

11 only with research designs that eliminate plau12 sible competing explanations for observed re13 sults, such as, but not limited to, random-as14 signment experiments; 

15 ‘‘(E) presentation of studies and methods 

16 in sufficient detail and clarity to allow for rep17 lication or, at a minimum, to offer the oppor18 tunity to build systematically on the findings of 

19 the research; 

20 ‘‘(F) acceptance by a peer-reviewed journal 

21 or critique by a panel of independent experts 

22 through a comparably rigorous, objective, and 

23 scientific review; and 


jbell on DSK7SPTVN1PROD with 
6 

HR 3409 RFS 

1 ‘‘(G) consistency of findings across mul2 tiple studies or sites to support the generality 

3 of results and conclusions.’’. 

4 (b) CLERICAL AMENDMENT.—The table of contents 

5 at the end of the first section of such Act is amended by 

6 adding at the end of the items relating to such title the 

7 following: 

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

8 TITLE II—NO GREENHOUSE GAS 

9 REGULATION UNDER THE 

10 CLEAN AIR ACT 

11 SEC. 201. NO REGULATION OF EMISSIONS OF GREENHOUSE 

12 GASES. 

13 Title III of the Clean Air Act (42 U.S.C. 7601 et 

14 seq.) is amended by adding at the end the following: 

15 ‘‘SEC. 330. NO REGULATION OF EMISSIONS OF GREEN16 HOUSE GASES. 

17 ‘‘(a) DEFINITION.—In this section, the term ‘green18 house gas’ means any of the following: 

19 ‘‘(1) Water vapor. 

20 ‘‘(2) Carbon dioxide. 

21 ‘‘(3) Methane. 

22 ‘‘(4) Nitrous oxide. 

23 ‘‘(5) Sulfur hexafluoride. 

24 ‘‘(6) Hydrofluorocarbons. 

25 ‘‘(7) Perfluorocarbons. 


jbell on DSK7SPTVN1PROD with 
7 

HR 3409 RFS 

1 ‘‘(8) Any other substance subject to, or pro2 posed to be subject to, regulation, action, or consid3 eration under this Act to address climate change. 

4 ‘‘(b) LIMITATION ON AGENCY ACTION.— 

5 ‘‘(1) LIMITATION.— 

6 ‘‘(A) IN GENERAL.—The Administrator 

7 may not, under this Act, promulgate any regu8 lation concerning, take action relating to, or 

9 take into consideration the emission of a green10 house gas to address climate change. 

11 ‘‘(B) AIR POLLUTANT DEFINITION.—The 

12 definition of the term ‘air pollutant’ in section 

13 302(g) does not include a greenhouse gas. Not14 withstanding the previous sentence, such defini15 tion may include a greenhouse gas for purposes 

16 of addressing concerns other than climate 

17 change. 

18 ‘‘(2) EXCEPTIONS.—Paragraph (1) does not 

19 prohibit the following: 

20 ‘‘(A) Notwithstanding paragraph (4)(B), 

21 implementation and enforcement of the rule en22 titled ‘Light-Duty Vehicle Greenhouse Gas 

23 Emission Standards and Corporate Average 

24 Fuel Economy Standards’ (as published at 75 

25 Fed. Reg. 25324 (May 7, 2010) and without 


jbell on DSK7SPTVN1PROD with 
8 

HR 3409 RFS 

1 further revision) and implementation and en2 forcement of the rule entitled ‘Greenhouse Gas 

3 Emissions Standards and Fuel Efficiency 

4 Standards for Medium- and Heavy-Duty En5 gines and Vehicles’ (as published at 76 Fed. 

6 Reg. 57106 (September 15, 2011) and without 

7 further revision). 

8 ‘‘(B) Implementation and enforcement of 

9 section 211(o). 

10 ‘‘(C) Statutorily authorized Federal re11 search, development, demonstration programs 

12 and voluntary programs addressing climate 

13 change. 

14 ‘‘(D) Implementation and enforcement of 

15 title VI to the extent such implementation or 

16 enforcement only involves one or more class I 

17 substances or class II substances (as such 

18 terms are defined in section 601). 

19 ‘‘(E) Implementation and enforcement of 

20 section 821 (42 U.S.C. 7651k note) of Public 

21 Law 101–549 (commonly referred to as the 

22 ‘Clean Air Act Amendments of 1990’). 

23 ‘‘(3) INAPPLICABILITY OF PROVISIONS.—Noth24 ing listed in paragraph (2) shall cause a greenhouse 

25 gas to be subject to part C of title I (relating to preVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
9 

HR 3409 RFS 

1 vention of significant deterioration of air quality) or 

2 considered an air pollutant for purposes of title V 

3 (relating to permits). 

4 ‘‘(4) CERTAIN PRIOR AGENCY ACTIONS.—The 

5 following rules and actions (including any supple6 ment or revision to such rules and actions) are re7 pealed and shall have no legal effect: 

8 ‘‘(A) ‘Mandatory Reporting of Greenhouse 

9 Gases’, published at 74 Fed. Reg. 56260 (Octo10 ber 30, 2009). 

11 ‘‘(B) ‘Endangerment and Cause or Con12 tribute Findings for Greenhouse Gases Under 

13 Section 202(a) of the Clean Air Act’, published 

14 at 74 Fed. Reg. 66496 (December 15, 2009). 

15 ‘‘(C) ‘Reconsideration of Interpretation of 

16 Regulations That Determine Pollutants Covered 

17 by Clean Air Act Permitting Programs’, pub18 lished at 75 Fed. Reg. 17004 (April 2, 2010) 

19 and the memorandum from Stephen L. John20 son, Environmental Protection Agency (EPA) 

21 Administrator, to EPA Regional Administra22 tors, concerning ‘EPA’s Interpretation of Regu23 lations that Determine Pollutants Covered by 

24 Federal Prevention of Significant Deterioration 

25 (PSD) Permit Program’ (December 18, 2008). 


jbell on DSK7SPTVN1PROD with 
10 

HR 3409 RFS 

1 ‘‘(D) ‘Prevention of Significant Deteriora2 tion and Title V Greenhouse Gas Tailoring 

3 Rule’, published at 75 Fed. Reg. 31514 (June 

4 3, 2010). 

5 ‘‘(E) ‘Action To Ensure Authority To 

6 Issue Permits Under the Prevention of Signifi7 cant Deterioration Program to Sources of 

8 Greenhouse Gas Emissions: Finding of Sub9 stantial Inadequacy and SIP Call’, published at 

10 75 Fed. Reg. 77698 (December 13, 2010). 

11 ‘‘(F) ‘Action To Ensure Authority To 

12 Issue Permits Under the Prevention of Signifi13 cant Deterioration Program to Sources of 

14 Greenhouse Gas Emissions: Finding of Failure 

15 To Submit State Implementation Plan Revi16 sions Required for Greenhouse Gases’, pub17 lished at 75 Fed. Reg. 81874 (December 29, 

18 2010). 

19 ‘‘(G) ‘Action to Ensure Authority To Issue 

20 Permits Under the Prevention of Significant 

21 Deterioration Program to Sources of Green22 house Gas Emissions: Federal Implementation 

23 Plan’, published at 75 Fed. Reg. 82246 (De24 cember 30, 2010). 


jbell on DSK7SPTVN1PROD with 
11 

HR 3409 RFS 

1 ‘‘(H) ‘Action to Ensure Authority to Im2 plement Title V Permitting Programs Under 

3 the Greenhouse Gas Tailoring Rule’, published 

4 at 75 Fed. Reg. 82254 (December 30, 2010). 

5 ‘‘(I) ‘Determinations Concerning Need for 

6 Error Correction, Partial Approval and Partial 

7 Disapproval, and Federal Implementation Plan 

8 Regarding Texas Prevention of Significant De9 terioration Program’, published at 75 Fed. Reg. 

10 82430 (December 30, 2010). 

11 ‘‘(J) ‘Limitation of Approval of Prevention 

12 of Significant Deterioration Provisions Con13 cerning Greenhouse Gas Emitting-Sources in 

14 State Implementation Plans’, published at 75 

15 Fed. Reg. 82536 (December 30, 2010). 

16 ‘‘(K) ‘Determinations Concerning Need for 

17 Error Correction, Partial Approval and Partial 

18 Disapproval, and Federal Implementation Plan 

19 Regarding Texas Prevention of Significant De20 terioration Program; Proposed Rule’, published 

21 at 75 Fed. Reg. 82365 (December 30, 2010). 

22 ‘‘(L) Except for actions listed in paragraph 

23 (2), any other Federal action under this Act oc24 curring before the date of enactment of this 

25 section that constitutes a stationary source perVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
12 

HR 3409 RFS 

1 mitting requirement or an emissions standard 

2 for a greenhouse gas to address climate change. 

3 ‘‘(5) STATE ACTION.— 

4 ‘‘(A) NO LIMITATION.—This section does 

5 not limit or otherwise affect the authority of a 

6 State to adopt, amend, enforce, or repeal State 

7 laws and regulations pertaining to the emission 

8 of a greenhouse gas. 

9 ‘‘(B) EXCEPTION.— 

10 ‘‘(i) RULE.—Notwithstanding sub11 paragraph (A), any provision described in 

12 clause (ii)— 

13 ‘‘(I) is not federally enforceable; 

14 ‘‘(II) is not deemed to be a part 

15 of Federal law; and 

16 ‘‘(III) is deemed to be stricken 

17 from the plan described in clause 

18 (ii)(I) or the program or permit de19 scribed in clause (ii)(II), as applicable. 

20 ‘‘(ii) PROVISION DEFINED.—For pur21 poses of clause (i), the term ‘provision’ 

22 means any provision that— 

23 ‘‘(I) is contained in a State im24 plementation plan under section 110 

25 and authorizes or requires a limitation 


jbell on DSK7SPTVN1PROD with 
13 

HR 3409 RFS 

1 on, or imposes a permit requirement 

2 for, the emission of a greenhouse gas 

3 to address climate change; or 

4 ‘‘(II) is part of an operating per5 mit program under title V, or a per6 mit issued pursuant to title V, and 

7 authorizes or requires a limitation on 

8 the emission of a greenhouse gas to 

9 address climate change. 

10 ‘‘(C) ACTION BY ADMINISTRATOR.—The 

11 Administrator may not approve or make feder12 ally enforceable any provision described in sub13 paragraph (B)(ii).’’. 

14 SEC. 202. PRESERVING ONE NATIONAL STANDARD FOR 

15 AUTOMOBILES. 

16 (a) FINDING.—Congress finds that the emissions of 

17 greenhouse gases from a motor vehicle tailpipe are related 

18 to fuel economy. 

19 (b) REPORT REQUIRED.—Not later than 60 days 

20 after the date of enactment of this Act, the Secretary of 

21 Transportation shall submit a report to the Congress that, 

22 notwithstanding section 201, assumes the implementation 

23 and enforcement of the final rule entitled ‘‘2017 and Later 

24 Model Year Light-Duty Vehicle Greenhouse Gas EmisVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
14 

HR 3409 RFS 

1 sions and Corporate Average Fuel Economy Standards’’ 

2 (issued on August 28, 2012) and estimates— 

3 (1) the total number of jobs that will be lost 

4 due to decreased demand by year caused by the rule; 

5 (2) the number of additional fatalities and inju6 ries that will be caused by the rule; and 

7 (3) the additional cost to the economy of the re8 dundant regulation of fuel economy and greenhouse 

9 gas emissions by the Environmental Protection 

10 Agency and State agencies for model years 2011 

11 through 2025. 

12 (c) CONSULTATION.—Other than to gather basic fac13 tual information, the Secretary of Transportation shall not 

14 consult with the Administrator of the Environmental Pro15 tection Agency or any official from the California Air Re16 sources Board in fulfilling the requirement described in 

17 subsection (b). 

18 (d) AMENDMENT TO THE CLEAN AIR ACT.—Section 

19 209(b) of the Clean Air Act (42 U.S.C. 7543) is amended 

20 by adding at the end the following: 

21 ‘‘(4) With respect to standards for emissions of 

22 greenhouse gases (as defined in section 330) for model 

23 year 2017 or any subsequent model year new motor vehi24 cles and new motor vehicle engines— 


jbell on DSK7SPTVN1PROD with 
15 

HR 3409 RFS 

1 ‘‘(A) the Administrator may not waive applica2 tion of subsection (a); and 

3 ‘‘(B) no waiver granted prior to the date of en4 actment of this paragraph may be construed to 

5 waive the application of subsection (a).’’. 

6 TITLE III—TRANSPARENCY IN 

7 REGULATORY ANALYSIS OF 

8 IMPACTS ON NATION 

9 SEC. 301. COMMITTEE FOR THE CUMULATIVE ANALYSIS OF 

10 REGULATIONS THAT IMPACT ENERGY AND 

11 MANUFACTURING IN THE UNITED STATES. 

12 (a) ESTABLISHMENT.—The President shall establish 

13 a committee to be known as the Committee for the Cumu14 lative Analysis of Regulations that Impact Energy and 

15 Manufacturing in the United States (in this Act referred 

16 to as the ‘‘Committee’’) to analyze and report on the cu17 mulative and incremental impacts of certain rules and ac18 tions of the Environmental Protection Agency, in accord19 ance with sections 302 and 303. 

20 (b) MEMBERS.—The Committee shall be composed of 

21 the following officials (or their designees): 

22 (1) The Secretary of Agriculture, acting 

23 through the Chief Economist. 


jbell on DSK7SPTVN1PROD with 
16 

HR 3409 RFS 

1 (2) The Secretary of Commerce, acting through 

2 the Chief Economist and the Under Secretary for 

3 International Trade. 

4 (3) The Secretary of Labor, acting through the 

5 Commissioner of the Bureau of Labor Statistics. 

6 (4) The Secretary of Energy, acting through 

7 the Administrator of the Energy Information Ad8 ministration. 

9 (5) The Secretary of the Treasury, acting 

10 through the Deputy Assistant Secretary for Environ11 ment and Energy of the Department of the Treas12 ury. 

13 (6) The Administrator of the Environmental 

14 Protection Agency. 

15 (7) The Chairman of the Council of Economic 

16 Advisors. 

17 (8) The Chairman of the Federal Energy Regu18 latory Commission. 

19 (9) The Administrator of the Office of Informa20 tion and Regulatory Affairs. 

21 (10) The Chief Counsel for Advocacy of the 

22 Small Business Administration. 

23 (11) The Chairman of the United States Inter24 national Trade Commission, acting through the Of25 fice of Economics. 


jbell on DSK7SPTVN1PROD with 
17 

HR 3409 RFS 

1 (c) CHAIR.—The Secretary of Commerce shall serve 

2 as Chair of the Committee. In carrying out the functions 

3 of the Chair, the Secretary of Commerce shall consult with 

4 the members serving on the Committee pursuant to para5 graphs (5) and (11) of subsection (b). 

6 (d) CONSULTATION.—In conducting analyses under 

7 section 302 and preparing reports under section 303, the 

8 Committee shall consult with, and consider pertinent re9 ports issued by, the Electric Reliability Organization cer10 tified under section 215(c) of the Federal Power Act (16 

11 U.S.C. 824o(c)). 

12 (e) TERMINATION.—The Committee shall terminate 

13 60 days after submitting its final report pursuant to sec14 tion 303(c). 

15 SEC. 302. ANALYSES. 

16 (a) SCOPE.—The Committee shall conduct analyses, 

17 for each of the calendar years 2016, 2020, and 2030, of 

18 the following: 

19 (1) The cumulative impact of covered rules that 

20 are promulgated as final regulations on or before 

21 January 1, 2013, in combination with covered ac22 tions. 

23 (2) The cumulative impact of all covered rules 

24 (including covered rules that have not been promulVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
18 

HR 3409 RFS 

1 gated as final regulations on or before January 1, 

2 2013), in combination with covered actions. 

3 (3) The incremental impact of each covered rule 

4 not promulgated as a final regulation on or before 

5 January 1, 2013, relative to an analytic baseline 

6 representing the results of the analysis conducted 

7 under paragraph (1). 

8 (b) CONTENTS.—The Committee shall include in 

9 each analysis conducted under this section the following: 

10 (1) Estimates of the impacts of the covered 

11 rules and covered actions with regard to— 

12 (A) the global economic competitiveness of 

13 the United States, particularly with respect to 

14 energy intensive and trade sensitive industries; 

15 (B) other cumulative costs and cumulative 

16 benefits, including evaluation through a general 

17 equilibrium model approach; 

18 (C) any resulting change in national, 

19 State, and regional electricity prices; 

20 (D) any resulting change in national, 

21 State, and regional fuel prices; 

22 (E) the impact on national, State, and re23 gional employment during the 5-year period be24 ginning on the date of enactment of this Act, 

25 and also in the long term, including secondary 


jbell on DSK7SPTVN1PROD with 
19 

HR 3409 RFS 

1 impacts associated with increased energy prices 

2 and facility closures; and 

3 (F) the reliability and adequacy of bulk 

4 power supply in the United States. 

5 (2) Discussion of key uncertainties and assump6 tions associated with each estimate. 

7 (3) A sensitivity analysis. 

8 (4) Discussion, and where feasible an assess9 ment, of the cumulative impact of the covered rules 

10 and covered actions on— 

11 (A) consumers; 

12 (B) small businesses; 

13 (C) regional economies; 

14 (D) State, local, and tribal governments; 

15 (E) low-income communities; 

16 (F) public health, including health effects 

17 associated with regulatory costs; 

18 (G) local and industry-specific labor mar19 kets; and 

20 (H) agriculture, 

21 as well as key uncertainties associated with each 

22 topic. 

23 (c) METHODS.—In conducting analyses under this 

24 section, the Committee shall use the best available meth25 ods, consistent with guidance from the Office of InformaVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
20 

HR 3409 RFS 

1 tion and Regulatory Affairs and the Office of Management 

2 and Budget Circular A–4. 

3 (d) DATA.—In conducting analyses under this sec4 tion, the Committee— 

5 (1) shall use the best data that are available to 

6 the public or supplied to the Committee by its mem7 bers, including the most recent such data appro8 priate for this analysis representing air quality, facil9 ity emissions, and installed controls; and 

10 (2) is not required to create data or to use data 

11 that are not readily accessible. 

12 (e) COVERED RULES.—In this section, the term ‘‘cov13 ered rule’’ means the following: 

14 (1) The following published rules (including any 

15 successor or substantially similar rule): 

16 (A) The Clean Air Interstate Rule (as de17 fined in section 304(a)(4)). 

18 (B) ‘‘National Ambient Air Quality Stand19 ards for Ozone’’, published at 73 Fed. Reg. 

20 16436 (March 27, 2008). 

21 (C) ‘‘National Emission Standards for 

22 Hazardous Air Pollutants for Major Sources: 

23 Industrial, Commercial, and Institutional Boil24 ers and Process Heaters’’, published at 76 Fed. 

25 Reg. 15608 (March 21, 2011). 


jbell on DSK7SPTVN1PROD with 
21 

HR 3409 RFS 

1 (D) ‘‘National Emission Standards for 

2 Hazardous Air Pollutants for Area Sources: In3 dustrial, Commercial, and Institutional Boil4 ers’’, published at 76 Fed. Reg. 15554 (March 

5 21, 2011). 

6 (E) ‘‘National Emission Standards for 

7 Hazardous Air Pollutants from Coal- and Oil8 fired Electric Utility Steam Generating Units 

9 and Standards of Performance for Fossil-Fuel10 Fired Electric Utility, Industrial-Commercial11 Institutional, and Small Industrial-Commercial12 Institutional Steam Generating Units’’, pub13 lished at 77 Fed. Reg. 9304 (February 16, 

14 2012). 

15 (F) ‘‘Hazardous and Solid Waste Manage16 ment System; Identification and Listing of Spe17 cial Wastes; Disposal of Coal Combustion Re18 siduals From Electric Utilities’’, published at 

19 75 Fed. Reg. 35127 (June 21, 2010). 

20 (G) ‘‘Primary National Ambient Air Qual21 ity Standard for Sulfur Dioxide’’, published at 

22 75 Fed. Reg. 35520 (June 22, 2010). 

23 (H) ‘‘Primary National Ambient Air Qual24 ity Standards for Nitrogen Dioxide’’, published 

25 at 75 Fed. Reg. 6474 (February 9, 2010). 


jbell on DSK7SPTVN1PROD with 
22 

HR 3409 RFS 

1 (I) ‘‘National Emission Standards for Haz2 ardous Air Pollutants from the Portland Ce3 ment Manufacturing Industry and Standards of 

4 Performance for Portland Cement Plants’’, 

5 published at 75 Fed. Reg. 54970 (September 9, 

6 2010). 

7 (2) The following additional rules or guidelines 

8 promulgated on or after January 1, 2009: 

9 (A) Any rule or guideline promulgated 

10 under section 111(b) or 111(d) of the Clean Air 

11 Act (42 U.S.C. 7411(b), 7411(d)) to address 

12 climate change. 

13 (B) Any rule or guideline promulgated by 

14 the Administrator of the Environmental Protec15 tion Agency, a State, a local government, or a 

16 permitting agency under or as the result of sec17 tion 169A or 169B of the Clean Air Act (42 

18 U.S.C. 7491, 7492). 

19 (C) Any rule establishing or modifying a 

20 national ambient air quality standard under 

21 section 109 of the Clean Air Act (42 U.S.C. 

22 7409). 

23 (D) Any rule addressing fuels under title 

24 II of the Clean Air Act (42 U.S.C. 7521 et 

25 seq.) as described in the Unified Agenda of 


jbell on DSK7SPTVN1PROD with 
23 

HR 3409 RFS 

1 Federal Regulatory and Deregulatory Actions 

2 under Regulatory Identification Number 2060– 

3 AQ86, or any substantially similar rule, includ4 ing any rule under section 211(v) of the Clean 

5 Air Act (42 U.S.C. 7545(v)). 

6 (f) COVERED ACTIONS.—In this section, the term 

7 ‘‘covered action’’ means any action on or after January 

8 1, 2009, by the Administrator of the Environmental Pro9 tection Agency, a State, a local government, or a permit10 ting agency as a result of the application of part C of title 

11 I (relating to prevention of significant deterioration of air 

12 quality) or title V (relating to permitting) of the Clean 

13 Air Act (42 U.S.C. 7401 et seq.), if such application oc14 curs with respect to an air pollutant that is identified as 

15 a greenhouse gas in ‘‘Endangerment and Cause or Con16 tribute Findings for Greenhouse Gases Under Section 

17 202(a) of the Clean Air Act’’, published at 74 Fed. Reg. 

18 66496 (December 15, 2009). 

19 SEC. 303. REPORTS; PUBLIC COMMENT. 

20 (a) PRELIMINARY REPORT.—Not later than March 

21 31, 2013, the Committee shall make public and submit 

22 to the Committee on Energy and Commerce of the House 

23 of Representatives and the Committee on Environment 

24 and Public Works of the Senate a preliminary report conVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
24 

HR 3409 RFS 

1 taining the results of the analyses conducted under section 

2 302. 

3 (b) PUBLIC COMMENT PERIOD.—The Committee 

4 shall accept public comments regarding the preliminary re5 port submitted under subsection (a) for a period of 120 

6 days after such submission. 

7 (c) FINAL REPORT.—Not later than September 30, 

8 2013, the Committee shall submit to Congress a final re9 port containing the analyses conducted under section 302, 

10 including any revisions to such analyses made as a result 

11 of public comments, and a response to such comments. 

12 SEC. 304. ADDITIONAL PROVISIONS RELATING TO CERTAIN 

13 RULES. 

14 (a) CROSS-STATE AIR POLLUTION RULE/TRANSPORT

15 RULE.— 

16 (1) EARLIER RULES.—The rule entitled ‘‘Fed17 eral Implementation Plans: Interstate Transport of 

18 Fine Particulate Matter and Ozone and Correction 

19 of SIP Approvals’’, published at 76 Fed. Reg. 48208 

20 (August 8, 2011), and any successor or substantially 

21 similar rule, shall be of no force or effect, and shall 

22 be treated as though such rule had never taken ef23 fect. 

24 (2) CONTINUED APPLICABILITY OF CLEAN AIR

25 INTERSTATE RULE.—In place of any rule described 


jbell on DSK7SPTVN1PROD with 
25 

HR 3409 RFS 

1 in paragraph (1), the Administrator of the Environ2 mental Protection Agency (in this section referred to 

3 as the ‘‘Administrator’’) shall continue to implement 

4 the Clean Air Interstate Rule. 

5 (3) ADDITIONAL RULEMAKINGS.— 

6 (A) ISSUANCE OF NEW RULES.—The Ad7 ministrator— 

8 (i) shall not issue any proposed or 

9 final rule under section 110(a)(2)(D)(i)(I) 

10 or section 126 of the Clean Air Act (42 

11 U.S.C. 7410(a)(2)(D)(i)(I), 7426) relating 

12 to national ambient air quality standards 

13 for ozone or particulate matter (including 

14 any modification of the Clean Air Inter15 state Rule) before the date that is 3 years 

16 after the date on which the Committee 

17 submits the final report under section 

18 303(c); 

19 (ii) in issuing any rule described in 

20 clause (i), shall base the rule on actual 

21 monitored (and not modeled) data and 

22 shall, notwithstanding section 

23 110(a)(2)(D)(i)(I), allow the trading of 

24 emissions allowances among entities covVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
26 

HR 3409 RFS 

1 ered by the rule irrespective of the States 

2 in which such entities are located; 

3 (iii) shall not issue any proposed or 

4 final rule under section 109 of the Clean 

5 Air Act (42 U.S.C. 7409) that relies upon 

6 scientific or technical data that have not 

7 been made available to the public; and 

8 (iv) shall not issue any proposed or 

9 final rule under section 109 of the Clean 

10 Air Act (42 U.S.C. 7409), unless the ac11 companying regulatory impact analysis, as 

12 required under Executive Order No. 

13 12866, is peer reviewed in a manner con14 sistent with the Office of Management and 

15 Budget’s ‘‘Final Information Quality Bul16 letin for Peer Review’’ and the third edi17 tion of the Environmental Protection 

18 Agency’s ‘‘Peer Review Handbook’’. 

19 (B) IMPLEMENTATION SCHEDULE.—In 

20 promulgating any final rule described in sub21 paragraph (A)(i), the Administrator shall estab22 lish a date for State implementation of the 

23 standards established by such final rule that is 

24 not earlier than 3 years after the date of publi25 cation of such final rule. 


jbell on DSK7SPTVN1PROD with 
27 

HR 3409 RFS 

1 (4) DEFINITION OF CLEAN AIR INTERSTATE

2 RULE.—For purposes of this section, the term 

3 ‘‘Clean Air Interstate Rule’’ means the Clean Air 

4 Interstate Rule and the rule establishing Federal 

5 Implementation Plans for the Clean Air Interstate 

6 Rule as promulgated and modified by the Adminis7 trator (70 Fed. Reg. 25162 (May 12, 2005), 71 

8 Fed. Reg. 25288 (April 28, 2006), 72 Fed. Reg. 

9 55657 (October 1, 2007), 72 Fed. Reg. 59190 (Oc10 tober 19, 2007), 72 Fed. Reg. 62338 (November 2, 

11 2007), 74 Fed. Reg. 56721 (November 3, 2009)). 

12 (b) STEAM GENERATING UNIT RULES.— 

13 (1) EARLIER RULES.—The proposed rule enti14 tled ‘‘National Emission Standards for Hazardous 

15 Air Pollutants From Coal- and Oil-Fired Electric 

16 Utility Steam Generating Units and Standards of 

17 Performance for Fossil-Fuel-Fired Electric Utility, 

18 Industrial-Commercial- Institutional, and Small In19 dustrial-Commercial-Institutional Steam Generating 

20 Units’’ published at 76 Fed. Reg. 24976 (May 3, 

21 2011), and any final rule that is based on such pro22 posed rule and is issued prior to the date of the en23 actment of this Act, shall be of no force and effect, 

24 and shall be treated as though such proposed or 

25 final rule had never been issued. In conducting analVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
28 

HR 3409 RFS 

1 yses under section 302(a), the Committee shall ana2 lyze the rule described in section 302(e)(1)(E) (in3 cluding any successor or substantially similar rule) 

4 as if the preceding sentence did not apply to such 

5 rule. 

6 (2) PROMULGATION OF FINAL RULES.—In 

7 place of the rules described in paragraph (1), the 

8 Administrator shall— 

9 (A) issue regulations establishing national 

10 emission standards for coal-and oil-fired electric 

11 utility steam generating units under section 112 

12 of the Clean Air Act (42 U.S.C. 7412) with re13 spect to each hazardous air pollutant for which 

14 the Administrator finds such regulations are 

15 appropriate and necessary pursuant to sub16 section (n)(1)(A) of such section; 

17 (B) issue regulations establishing stand18 ards of performance for fossil-fuel-fired electric 

19 utility, industrial-commercial-institutional, and 

20 small industrial-commercial-institutional steam 

21 generating units under section 111 of the Clean 

22 Air Act (42 U.S.C. 111); and 

23 (C) issue the final regulations required by 

24 subparagraphs (A) and (B)— 


jbell on DSK7SPTVN1PROD with 
29 

HR 3409 RFS 

1 (i) after issuing proposed regulations 

2 under such subparagraphs; 

3 (ii) after consideration of the final re4 port submitted under section 303(c); and 

5 (iii) not earlier than the date that is 

6 12 months after the date on which the 

7 Committee submits such report to the Con8 gress, or such later date as may be deter9 mined by the Administrator. 

10 (3) COMPLIANCE PROVISIONS.— 

11 (A) ESTABLISHMENT OF COMPLIANCE

12 DATES.—In promulgating the regulations under 

13 paragraph (2), the Administrator— 

14 (i) shall establish a date for compli15 ance with the standards and requirements 

16 under such regulations that is not earlier 

17 than 5 years after the effective date of the 

18 regulations; and 

19 (ii) in establishing a date for such 

20 compliance, shall take into consideration— 

21 (I) the costs of achieving emis22 sions reductions; 

23 (II) any non-air quality health 

24 and environmental impact and energy 


jbell on DSK7SPTVN1PROD with 
30 

HR 3409 RFS 

1 requirements of the standards and re2 quirements; 

3 (III) the feasibility of imple4 menting the standards and require5 ments, including the time needed to— 

6 (aa) obtain necessary permit 

7 approvals; and 

8 (bb) procure, install, and 

9 test control equipment; 

10 (IV) the availability of equip11 ment, suppliers, and labor, given the 

12 requirements of the regulations and 

13 other proposed or finalized regula14 tions; and 

15 (V) potential net employment im16 pacts. 

17 (B) NEW SOURCES.—With respect to the 

18 regulations promulgated pursuant to paragraph 

19 (2)— 

20 (i) the date on which the Adminis21 trator proposes a regulation pursuant to 

22 paragraph (2)(A) establishing an emission 

23 standard under section 112 of the Clean 

24 Air Act (42 U.S.C. 7412) shall be treated 

25 as the date on which the Administrator 


jbell on DSK7SPTVN1PROD with 
31 

HR 3409 RFS 

1 first proposes such a regulation for pur2 poses of applying the definition of a new 

3 source under section 112(a)(4) of such Act 

4 (42 U.S.C. 7412(a)(4)); 

5 (ii) the date on which the Adminis6 trator proposes a regulation pursuant to 

7 paragraph (2)(B) establishing a standard 

8 of performance under section 111 of the 

9 Clean Air Act (42 U.S.C. 7411) shall be 

10 treated as the date on which the Adminis11 trator proposes such a regulation for pur12 poses of applying the definition of a new 

13 source under section 111(a)(2) of such Act 

14 (42 U.S.C. 7411(a)(2)); 

15 (iii) for purposes of any emission 

16 standard or limitation applicable to electric 

17 utility steam generating units, the term 

18 ‘‘new source’’ means a stationary source 

19 for which a preconstruction permit or 

20 other preconstruction approval required 

21 under the Clean Air Act (42 U.S.C. 7401 

22 et seq.) has been issued after the effective 

23 date of such emissions standard or limita24 tion; and 


jbell on DSK7SPTVN1PROD with 
32 

HR 3409 RFS 

1 (iv) for purposes of clause (iii), the 

2 date of issuance of a preconstruction per3 mit or other preconstruction approval is 

4 deemed to be the date on which such per5 mit or approval is issued to the applicant 

6 irrespective of any administrative or judi7 cial review occurring after such date. 

8 (C) RULE OF CONSTRUCTION.—Nothing in 

9 this subsection shall be construed to restrict or 

10 otherwise affect the provisions of paragraphs 

11 (3)(B) and (4) of section 112(i) of the Clean 

12 Air Act (42 U.S.C. 7412(i)). 

13 (4) OTHER PROVISIONS.— 

14 (A) ESTABLISHMENT OF STANDARDS

15 ACHIEVABLE IN PRACTICE.—The regulations 

16 promulgated pursuant to paragraph (2)(A) of 

17 this section shall apply section 112(d)(3) of the 

18 Clean Air Act (42 U.S.C. 7412(d)(3)) in ac19 cordance with the following: 

20 (i) NEW SOURCES.—With respect to 

21 new sources: 

22 (I) The Administrator shall iden23 tify the best controlled similar source 

24 for each source category or sub25 category. 


jbell on DSK7SPTVN1PROD with 
33 

HR 3409 RFS 

1 (II) The best controlled similar 

2 source for a category or subcategory 

3 shall be the single source that is de4 termined by the Administrator to be 

5 the best controlled, in the aggregate, 

6 for all of the hazardous air pollutants 

7 for which the Administrator intends 

8 to issue standards for such source cat9 egory or subcategory, under actual op10 erating conditions, taking into account 

11 the variability in actual source per12 formance, source design, fuels, con13 trols, ability to measure pollutant 

14 emissions, and operating conditions. 

15 (ii) EXISTING SOURCES.—With re16 spect to existing sources: 

17 (I) The Administrator shall iden18 tify one group of sources that con19 stitutes the best performing 12 per20 cent of existing sources for each 

21 source category or subcategory. 

22 (II) The group constituting the 

23 best performing 12 percent of existing 

24 sources for a category or subcategory 

25 shall be the single group that is deterVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
34 

HR 3409 RFS 

1 mined by the Administrator to be the 

2 best performing, in the aggregate, for 

3 all of the hazardous air pollutants for 

4 which the Administrator intends to 

5 issue standards for such source cat6 egory or subcategory, under actual op7 erating conditions, taking into account 

8 the variability in actual source per9 formance, source design, fuels, con10 trols, ability to measure pollutant 

11 emissions, and operating conditions. 

12 (B) REGULATORY ALTERNATIVES.—For 

13 the regulations promulgated pursuant to para14 graph (2) of this section, from among the range 

15 of regulatory alternatives authorized under the 

16 Clean Air Act (42 U.S.C. 7401 et seq.), includ17 ing work practice standards under section 

18 112(h) of such Act (42 U.S.C. 7412(h)), the 

19 Administrator shall impose the least burden20 some, consistent with the purposes of such Act 

21 and Executive Order No. 13563 published at 76 

22 Fed. Reg. 3821 (January 21, 2011). 


jbell on DSK7SPTVN1PROD with 
35 

HR 3409 RFS 

1 SEC. 305. CONSIDERATION OF FEASIBILITY AND COST IN 

2 ESTABLISHING NATIONAL AMBIENT AIR 

3 QUALITY STANDARDS. 

4 In establishing any national primary or secondary 

5 ambient air quality standard under section 109 of the 

6 Clean Air Act (42 U.S.C. 7409), the Administrator of the 

7 Environmental Protection Agency shall take into consider8 ation feasibility and cost. 

9 TITLE IV—MANAGEMENT AND 

10 DISPOSAL OF COAL COMBUS11 TION RESIDUALS 

12 SEC. 401. MANAGEMENT AND DISPOSAL OF COAL COMBUS13 TION RESIDUALS. 

14 (a) IN GENERAL.—Subtitle D of the Solid Waste Dis15 posal Act (42 U.S.C. 6941 et seq.) is amended by adding 

16 at the end the following: 

17 ‘‘SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COM18 BUSTION RESIDUALS. 

19 ‘‘(a) STATE PERMIT PROGRAMS FOR COAL COMBUS20 TION RESIDUALS.—Each State may adopt and implement 

21 a coal combustion residuals permit program. 

22 ‘‘(b) STATE ACTIONS.— 

23 ‘‘(1) NOTIFICATION.—Not later than 6 months 

24 after the date of enactment of this section (except 

25 as provided by the deadline identified under sub26 section (d)(3)(B)), the Governor of each State shall 


jbell on DSK7SPTVN1PROD with 
36 

HR 3409 RFS 

1 notify the Administrator, in writing, whether such 

2 State will adopt and implement a coal combustion 

3 residuals permit program. 

4 ‘‘(2) CERTIFICATION.— 

5 ‘‘(A) IN GENERAL.—Not later than 36 

6 months after the date of enactment of this sec7 tion (except as provided in subsections (f)(1)(A) 

8 and (f)(1)(C)), in the case of a State that has 

9 notified the Administrator that it will imple10 ment a coal combustion residuals permit pro11 gram, the head of the lead State agency respon12 sible for implementing the coal combustion re13 siduals permit program shall submit to the Ad14 ministrator a certification that such coal com15 bustion residuals permit program meets the 

16 specifications described in subsection (c). 

17 ‘‘(B) CONTENTS.—A certification sub18 mitted under this paragraph shall include— 

19 ‘‘(i) a letter identifying the lead State 

20 agency responsible for implementing the 

21 coal combustion residuals permit program, 

22 signed by the head of such agency; 

23 ‘‘(ii) identification of any other State 

24 agencies involved with the implementation 


jbell on DSK7SPTVN1PROD with 
37 

HR 3409 RFS 

1 of the coal combustion residuals permit 

2 program; 

3 ‘‘(iii) a narrative description that pro4 vides an explanation of how the State will 

5 ensure that the coal combustion residuals 

6 permit program meets the requirements of 

7 this section, including a description of the 

8 State’s— 

9 ‘‘(I) process to inspect or other10 wise determine compliance with such 

11 permit program; 

12 ‘‘(II) process to enforce the re13 quirements of such permit program; 

14 ‘‘(III) public participation proc15 ess for the promulgation, amendment, 

16 or repeal of regulations for, and the 

17 issuance of permits under, such per18 mit program; and 

19 ‘‘(IV) statutes, regulations, or 

20 policies pertaining to public access to 

21 information, such as groundwater 

22 monitoring data; 

23 ‘‘(iv) a legal certification that the 

24 State has, at the time of certification, fully 

25 effective statutes or regulations necessary 


jbell on DSK7SPTVN1PROD with 
38 

HR 3409 RFS 

1 to implement a coal combustion residuals 

2 permit program that meets the specifica3 tions described in subsection (c); and 

4 ‘‘(v) copies of State statutes and regu5 lations described in clause (iv). 

6 ‘‘(C) UPDATES.—A State may update the 

7 certification as needed to reflect changes to the 

8 coal combustion residuals permit program. 

9 ‘‘(3) MAINTENANCE OF 4005(C) OR 3006 PRO10 GRAM.—In order to adopt or implement a coal com11 bustion residuals permit program under this section 

12 (including pursuant to subsection (f)), the State 

13 agency responsible for implementing a coal combus14 tion residuals permit program in a State shall main15 tain an approved program under section 4005(c) or 

16 an authorized program under section 3006. 

17 ‘‘(c) PERMIT PROGRAM SPECIFICATIONS.— 

18 ‘‘(1) MINIMUM REQUIREMENTS.— 

19 ‘‘(A) IN GENERAL.—A coal combustion re20 siduals permit program shall apply the revised 

21 criteria described in paragraph (2) to owners or 

22 operators of structures, including surface im23 poundments, that receive coal combustion re24 siduals. 

25 ‘‘(B) STRUCTURAL INTEGRITY.— 


jbell on DSK7SPTVN1PROD with 
39 

HR 3409 RFS 

1 ‘‘(i) ENGINEERING CERTIFICATION.— 

2 A coal combustion residuals permit pro3 gram shall require that an independent 

4 registered professional engineer certify 

5 that— 

6 ‘‘(I) the design of structures is in 

7 accordance with recognized and gen8 erally accepted good engineering prac9 tices for containment of the maximum 

10 volume of coal combustion residuals 

11 and liquids appropriate for the struc12 ture; and 

13 ‘‘(II) the construction and main14 tenance of the structure will ensure 

15 dam stability. 

16 ‘‘(ii) INSPECTION.—A coal combustion 

17 residuals permit program shall require that 

18 structures that are surface impoundments 

19 be inspected not less than annually by an 

20 independent registered professional engi21 neer to assure that the design, operation, 

22 and maintenance of the surface impound23 ment is in accordance with recognized and 

24 generally accepted good engineering prac25 tices for containment of the maximum volVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
40 

HR 3409 RFS 

1 ume of coal combustion residuals and liq2 uids which can be impounded, so as to en3 sure dam stability. 

4 ‘‘(iii) DEFICIENCY.— 

5 ‘‘(I) IN GENERAL.—If the head 

6 of the agency responsible for imple7 menting the coal combustion residuals 

8 permit program determines that a 

9 structure is deficient with respect to 

10 the requirements in clauses (i) and 

11 (ii), the head of the agency has the 

12 authority to require action to correct 

13 the deficiency according to a schedule 

14 determined by the agency. 

15 ‘‘(II) UNCORRECTED DEFI16 CIENCIES.—If a deficiency is not cor17 rected according to the schedule, the 

18 head of the agency has the authority 

19 to require that the structure close in 

20 accordance with subsection (h). 

21 ‘‘(C) LOCATION.—Each structure that first 

22 receives coal combustion residuals after the date 

23 of enactment of this section shall be constructed 

24 with a base located a minimum of 2 feet above 

25 the upper limit of the water table, unless it is 


jbell on DSK7SPTVN1PROD with 
41 

HR 3409 RFS 

1 demonstrated to the satisfaction of the agency 

2 responsible for implementing the coal combus3 tion residuals permit program that— 

4 ‘‘(i) the hydrogeologic characteristics 

5 of the structure and surrounding land 

6 would preclude such a requirement; and 

7 ‘‘(ii) the function and integrity of the 

8 liner system will not be adversely impacted 

9 by contact with the water table. 

10 ‘‘(D) WIND DISPERSAL.— 

11 ‘‘(i) IN GENERAL.—The agency re12 sponsible for implementing the coal com13 bustion residuals permit program shall re14 quire that owners or operators of struc15 tures address wind dispersal of dust by re16 quiring cover, or by wetting coal combus17 tion residuals with water to a moisture 

18 content that prevents wind dispersal, facili19 tates compaction, and does not result in 

20 free liquids. 

21 ‘‘(ii) ALTERNATIVE METHODS.—Sub22 ject to the review and approval by the 

23 agency, owners or operators of structures 

24 may propose alternative methods to ad25 dress wind dispersal of dust that will proVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
42 

HR 3409 RFS 

1 vide comparable or more effective control 

2 of dust. 

3 ‘‘(E) PERMITS.—The agency responsible 

4 for implementing the coal combustion residuals 

5 permit program shall require that the owner or 

6 operator of each structure that receives coal 

7 combustion residuals after the date of enact8 ment of this section apply for and obtain a per9 mit incorporating the requirements of the coal 

10 combustion residuals permit program. 

11 ‘‘(F) STATE NOTIFICATION AND GROUND12 WATER MONITORING.— 

13 ‘‘(i) NOTIFICATION.—Not later than 

14 the date on which a State submits a cer15 tification under subsection (b)(2), the 

16 State shall notify owners or operators of 

17 structures within the State of— 

18 ‘‘(I) the obligation to apply for 

19 and obtain a permit under subpara20 graph (E); and 

21 ‘‘(II) the groundwater monitoring 

22 requirements applicable to structures 

23 under paragraph (2)(A)(ii). 

24 ‘‘(ii) GROUNDWATER MONITORING.— 

25 Not later than 1 year after the date on 


jbell on DSK7SPTVN1PROD with 
43 

HR 3409 RFS 

1 which a State submits a certification under 

2 subsection (b)(2), the State shall require 

3 the owner or operator of each structure to 

4 comply with the groundwater monitoring 

5 requirements under paragraph (2)(A)(ii). 

6 ‘‘(G) AGENCY REQUIREMENTS.—Except 

7 for information described in section 1905 of 

8 title 18, United States Code, the agency respon9 sible for implementing the coal combustion re10 siduals permit program shall ensure that— 

11 ‘‘(i) documents for permit determina12 tions are made available for public review 

13 and comment under the public participa14 tion process described in subsection 

15 (b)(2)(B)(iii)(III); 

16 ‘‘(ii) final determinations on permit 

17 applications are made known to the public; 

18 and 

19 ‘‘(iii) groundwater monitoring data 

20 collected under paragraph (2) is publicly 

21 available. 

22 ‘‘(H) AGENCY AUTHORITY.— 

23 ‘‘(i) IN GENERAL.—The agency re24 sponsible for implementing the coal comVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
44 

HR 3409 RFS 

1 bustion residuals permit program has the 

2 authority to— 

3 ‘‘(I) obtain information necessary 

4 to determine whether the owner or op5 erator of a structure is in compliance 

6 with the coal combustion residuals 

7 permit program requirements of this 

8 section; 

9 ‘‘(II) conduct or require moni10 toring and testing to ensure that 

11 structures are in compliance with the 

12 coal combustion residuals permit pro13 gram requirements of this section; 

14 and 

15 ‘‘(III) enter, at reasonable times, 

16 any site or premise subject to the coal 

17 combustion residuals permit program 

18 for the purpose of inspecting struc19 tures and reviewing records relevant 

20 to the operation and maintenance of 

21 structures. 

22 ‘‘(ii) MONITORING AND TESTING.—If 

23 monitoring or testing is conducted under 

24 clause (i)(II) by or for the agency respon25 sible for implementing the coal combustion 


jbell on DSK7SPTVN1PROD with 
45 

HR 3409 RFS 

1 residuals permit program, the agency shall, 

2 if requested, provide to the owner or oper3 ator— 

4 ‘‘(I) a written description of the 

5 monitoring or testing completed; 

6 ‘‘(II) at the time of sampling, a 

7 portion of each sample equal in vol8 ume or weight to the portion retained 

9 by or for the agency; and 

10 ‘‘(III) a copy of the results of 

11 any analysis of samples collected by or 

12 for the agency. 

13 ‘‘(I) STATE AUTHORITY.—A State imple14 menting a coal combustion residuals permit 

15 program has the authority to— 

16 ‘‘(i) inspect structures; and 

17 ‘‘(ii) implement and enforce the coal 

18 combustion residuals permit program. 

19 ‘‘(J) REQUIREMENTS FOR SURFACE IM20 POUNDMENTS THAT DO NOT MEET CERTAIN

21 CRITERIA.— 

22 ‘‘(i) IN GENERAL.—In addition to the 

23 groundwater monitoring and corrective ac24 tion requirements described in paragraph 

25 (2)(A)(ii), a coal combustion residuals perVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
46 

HR 3409 RFS 

1 mit program shall require a surface im2 poundment that receives coal combustion 

3 residuals after the date of enactment of 

4 this section to— 

5 ‘‘(I) comply with the require6 ments in clause (ii)(I)(aa) and sub7 clauses (II) through (IV) of clause (ii) 

8 if the surface impoundment— 

9 ‘‘(aa) does not— 

10 ‘‘(AA) have a liner sys11 tem described in section 

12 258.40(b) of title 40, Code 

13 of Federal Regulations; and 

14 ‘‘(BB) meet the design 

15 criteria described in section 

16 258.40(a)(1) of title 40, 

17 Code of Federal Regula18 tions; and 

19 ‘‘(bb) within 10 years after 

20 the date of enactment of this sec21 tion, is required under section 

22 258.56(a) of title 40, Code of 

23 Federal Regulations, to undergo 

24 an assessment of corrective meas25 ures for any constituent identiVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
47 

HR 3409 RFS 

1 fied in paragraph (2)(A)(ii) for 

2 which assessment groundwater 

3 monitoring is required; and 

4 ‘‘(II) comply with the require5 ments in clause (ii)(I)(bb) and sub6 clauses (II) through (IV) of clause (ii) 

7 if the surface impoundment— 

8 ‘‘(aa) does not— 

9 ‘‘(AA) have a liner sys10 tem described in section 

11 258.40(b) of title 40, Code 

12 of Federal Regulations; and 

13 ‘‘(BB) meet the design 

14 criteria described in section 

15 258.40(a)(1) of title 40, 

16 Code of Federal Regula17 tions; and 

18 ‘‘(bb) as of the date of en19 actment of this section, is subject 

20 to a State corrective action re21 quirement. 

22 ‘‘(ii) REQUIREMENTS.— 

23 ‘‘(I) DEADLINES.— 

24 ‘‘(aa) IN GENERAL.—Except 

25 as provided in item (bb), subVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
48 

HR 3409 RFS 

1 clause (IV), and clause (iii), the 

2 groundwater protection standard 

3 for structures identified in clause 

4 (i)(I) established by the agency 

5 responsible for implementing the 

6 coal combustion residuals permit 

7 program under section 258.55(h) 

8 or 258.55(i) of title 40, Code of 

9 Federal Regulations, for any con10 stituent for which corrective 

11 measures are required shall be 

12 met— 

13 ‘‘(AA) as soon as prac14 ticable at the relevant point 

15 of compliance, as described 

16 in section 258.40(d) of title 

17 40, Code of Federal Regula18 tions; and 

19 ‘‘(BB) not later than 

20 10 years after the date of 

21 enactment of this section. 

22 ‘‘(bb) IMPOUNDMENTS SUB23 JECT TO STATE CORRECTIVE AC24 TION REQUIREMENTS.—Except 

25 as provided in subclause (IV), the 


jbell on DSK7SPTVN1PROD with 
49 

HR 3409 RFS 

1 groundwater protection standard 

2 for structures identified in clause 

3 (i)(II) established by the agency 

4 responsible for implementing the 

5 coal combustion residuals permit 

6 program under section 258.55(h) 

7 or 258.55(i) of title 40, Code of 

8 Federal Regulations, for any con9 stituent for which corrective 

10 measures are required shall be 

11 met— 

12 ‘‘(AA) as soon as prac13 ticable at the relevant point 

14 of compliance, as described 

15 in section 258.40(d) of title 

16 40, Code of Federal Regula17 tions; and 

18 ‘‘(BB) not later than 8 

19 years after the date of en20 actment of this section. 

21 ‘‘(II) CLOSURE.—If the deadlines 

22 under clause (I) are not satisfied, the 

23 structure shall cease receiving coal 

24 combustion residuals and initiate clo25 sure under subsection (h). 


jbell on DSK7SPTVN1PROD with 
50 

HR 3409 RFS 

1 ‘‘(III) INTERIM MEASURES.— 

2 ‘‘(aa) IN GENERAL.—Except 

3 as provided in item (bb), not 

4 later than 90 days after the date 

5 on which the assessment of cor6 rective measures is initiated, the 

7 owner or operator shall imple8 ment interim measures, as nec9 essary, under the factors in sec10 tion 258.58(a)(3) of title 40, 

11 Code of Federal Regulations. 

12 ‘‘(bb) IMPOUNDMENTS SUB13 JECT TO STATE CORRECTIVE AC14 TION REQUIREMENTS.—Item (aa) 

15 shall only apply to surface im16 poundments subject to a State 

17 corrective action requirement as 

18 of the date of enactment of this 

19 section if the owner or operator 

20 has not implemented interim 

21 measures, as necessary, under 

22 the factors in section 

23 258.58(a)(3) of title 40, Code of 

24 Federal Regulations. 


jbell on DSK7SPTVN1PROD with 
51 

HR 3409 RFS 

1 ‘‘(IV) EXTENSION OF DEAD2 LINE.— 

3 ‘‘(aa) IN GENERAL.—Except 

4 as provided in item (bb), the 

5 deadline for meeting a ground6 water protection standard under 

7 subclause (I) may be extended by 

8 the agency responsible for imple9 menting the coal combustion re10 siduals permit program, after op11 portunity for public notice and 

12 comment under the public par13 ticipation process described in 

14 subsection (b)(2)(B)(iii)(III), 

15 based on— 

16 ‘‘(AA) the effectiveness 

17 of any interim measures im18 plemented by the owner or 

19 operator of the facility under 

20 section 258.58(a)(3) of title 

21 40, Code of Federal Regula22 tions; 

23 ‘‘(BB) the level of 

24 progress demonstrated in 


jbell on DSK7SPTVN1PROD with 
52 

HR 3409 RFS 

1 meeting the groundwater 

2 protection standard; 

3 ‘‘(CC) the potential for 

4 other adverse human health 

5 or environmental exposures 

6 attributable to the contami7 nation from the surface im8 poundment undergoing cor9 rective action; and 

10 ‘‘(DD) the lack of avail11 able alternative management 

12 capacity for the coal com13 bustion residuals and related 

14 materials managed in the 

15 impoundment at the facility 

16 at which the impoundment 

17 is located if the owner or op18 erator has used best efforts, 

19 as necessary, to design, ob20 tain any necessary permits, 

21 finance, construct, and 

22 render operational the alter23 native management capacity 

24 during the time period for 

25 meeting a groundwater proVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
53 

HR 3409 RFS 

1 tection standard in sub2 clause (I). 

3 ‘‘(bb) EXCEPTION.—The 

4 deadlines under subclause (I) 

5 shall not be extended if there has 

6 been contamination of public or 

7 private drinking water systems 

8 attributable to a surface im9 poundment undergoing corrective 

10 action, unless the contamination 

11 has been addressed by providing 

12 a permanent replacement water 

13 system. 

14 ‘‘(iii) SUBSEQUENT CLOSURE.— 

15 ‘‘(I) IN GENERAL.—In addition 

16 to the groundwater monitoring and 

17 corrective action requirements de18 scribed in paragraph (2)(A)(ii), a coal 

19 combustion residuals permit program 

20 shall require a surface impoundment 

21 that receives coal combustion residu22 als after the date of enactment of this 

23 section to comply with the require24 ments in subclause (II) if the surface 

25 impoundment— 


jbell on DSK7SPTVN1PROD with 
54 

HR 3409 RFS 

1 ‘‘(aa) does not— 

2 ‘‘(AA) have a liner sys3 tem described in section 

4 258.40(b) of title 40, Code 

5 of Federal Regulations; and 

6 ‘‘(BB) meet the design 

7 criteria described in section 

8 258.40(a)(1) of title 40, 

9 Code of Federal Regula10 tions; 

11 ‘‘(bb) more than 10 years 

12 after the date of enactment of 

13 this section, is required under 

14 section 258.56(a) of title 40, 

15 Code of Federal Regulations, to 

16 undergo an assessment of correc17 tive measures for any constituent 

18 identified in paragraph (2)(A)(ii) 

19 for which assessment ground20 water monitoring is required; and 

21 ‘‘(cc) is not subject to the 

22 requirements in clause (ii). 

23 ‘‘(II) REQUIREMENTS.— 

24 ‘‘(aa) CLOSURE.—The struc25 tures identified in subclause (I) 


jbell on DSK7SPTVN1PROD with 
55 

HR 3409 RFS 

1 shall cease receiving coal combus2 tion residuals and initiate closure 

3 in accordance with subsection (h) 

4 after alternative management ca5 pacity for the coal combustion re6 siduals and related materials 

7 managed in the impoundment at 

8 the facility is available. 

9 ‘‘(bb) BEST EFFORTS.—The 

10 alternative management capacity 

11 shall be developed as soon as 

12 practicable with the owner or op13 erator using best efforts to de14 sign, obtain necessary permits, fi15 nance, construct, and render 

16 operational the alternative man17 agement capacity. 

18 ‘‘(cc) ALTERNATIVE MAN19 AGEMENT CAPACITY PLAN.—The 

20 owner or operator shall, in col21 laboration with the agency re22 sponsible for implementing the 

23 coal combustion residuals permit 

24 program, prepare a written plan 

25 that describes the steps necessary 


jbell on DSK7SPTVN1PROD with 
56 

HR 3409 RFS 

1 to develop the alternative man2 agement capacity and includes a 

3 schedule for completion. 

4 ‘‘(dd) PUBLIC PARTICIPA5 TION.—The plan described in 

6 item (cc) shall be subject to pub7 lic notice and comment under the 

8 public participation process de9 scribed in subsection 

10 (b)(2)(B)(iii)(III). 

11 ‘‘(2) REVISED CRITERIA.—The revised criteria 

12 described in this paragraph are— 

13 ‘‘(A) the revised criteria for design, 

14 groundwater monitoring, corrective action, clo15 sure, and post-closure, for structures, includ16 ing— 

17 ‘‘(i) for new structures, and lateral ex18 pansions of existing structures, that first 

19 receive coal combustion residuals after the 

20 date of enactment of this section, the re21 vised criteria regarding design require22 ments described in section 258.40 of title 

23 40, Code of Federal Regulations, except 

24 that the leachate collection system require25 ments described in section 258.40(a)(2) of 


jbell on DSK7SPTVN1PROD with 
57 

HR 3409 RFS 

1 title 40, Code of Federal Regulations do 

2 not apply to structures that are surface 

3 impoundments; 

4 ‘‘(ii) for all structures that receive 

5 coal combustion residuals after the date of 

6 enactment of this section, the revised cri7 teria regarding groundwater monitoring 

8 and corrective action requirements de9 scribed in subpart E of part 258 of title 

10 40, Code of Federal Regulations, except 

11 that, for the purposes of this paragraph, 

12 the revised criteria shall also include— 

13 ‘‘(I) for the purposes of detection 

14 monitoring, the constituents boron, 

15 chloride, conductivity, fluoride, mer16 cury, pH, sulfate, sulfide, and total 

17 dissolved solids; and 

18 ‘‘(II) for the purposes of assess19 ment monitoring, establishing a 

20 groundwater protection standard, and 

21 assessment of corrective measures, the 

22 constituents aluminum, boron, chlo23 ride, fluoride, iron, manganese, molyb24 denum, pH, sulfate, and total dis25 solved solids; 


jbell on DSK7SPTVN1PROD with 
58 

HR 3409 RFS 

1 ‘‘(iii) for all structures that receive 

2 coal combustion residuals after the date of 

3 enactment of this section, in a manner 

4 consistent with subsection (h), the revised 

5 criteria for closure described in subsections 

6 (a) through (c) and (h) through (j) of sec7 tion 258.60 of title 40, Code of Federal 

8 Regulations; and 

9 ‘‘(iv) for all structures that receive 

10 coal combustion residuals after the date of 

11 enactment of this section, the revised cri12 teria for post-closure care described in sec13 tion 258.61 of title 40, Code of Federal 

14 Regulations, except for the requirement de15 scribed in subsection (a)(4) of that section; 

16 ‘‘(B) the revised criteria for location re17 strictions described in— 

18 ‘‘(i) for new structures, and lateral ex19 pansions of existing structures, that first 

20 receive coal combustion residuals after the 

21 date of enactment of this section, sections 

22 258.11 through 258.15 of title 40, Code of 

23 Federal Regulations; and 

24 ‘‘(ii) for existing structures that re25 ceive coal combustion residuals after the 


jbell on DSK7SPTVN1PROD with 
59 

HR 3409 RFS 

1 date of enactment of this section, sections 

2 258.11 and 258.15 of title 40, Code of 

3 Federal Regulations; 

4 ‘‘(C) for all structures that receive coal 

5 combustion residuals after the date of enact6 ment of this section, the revised criteria for air 

7 quality described in section 258.24 of title 40, 

8 Code of Federal Regulations; 

9 ‘‘(D) for all structures that receive coal 

10 combustion residuals after the date of enact11 ment of this section, the revised criteria for fi12 nancial assurance described in subpart G of 

13 part 258 of title 40, Code of Federal Regula14 tions; 

15 ‘‘(E) for all structures that receive coal 

16 combustion residuals after the date of enact17 ment of this section, the revised criteria for sur18 face water described in section 258.27 of title 

19 40, Code of Federal Regulations; 

20 ‘‘(F) for all structures that receive coal 

21 combustion residuals after the date of enact22 ment of this section, the revised criteria for rec23 ordkeeping described in section 258.29 of title 

24 40, Code of Federal Regulations; 


jbell on DSK7SPTVN1PROD with 
60 

HR 3409 RFS 

1 ‘‘(G) for landfills and other land-based 

2 units, other than surface impoundments, that 

3 receive coal combustion residuals after the date 

4 of enactment of this section, the revised criteria 

5 for run-on and run-off control systems de6 scribed in section 258.26 of title 40, Code of 

7 Federal Regulations; and 

8 ‘‘(H) for surface impoundments that re9 ceive coal combustion residuals after the date of 

10 enactment of this section, the revised criteria 

11 for run-off control systems described in section 

12 258.26(a)(2) of title 40, Code of Federal Regu13 lations. 

14 ‘‘(d) WRITTEN NOTICE AND OPPORTUNITY TO REM15 EDY.— 

16 ‘‘(1) IN GENERAL.—The Administrator shall 

17 provide to a State written notice and an opportunity 

18 to remedy deficiencies in accordance with paragraph 

19 (2) if at any time the State— 

20 ‘‘(A) does not satisfy the notification re21 quirement under subsection (b)(1); 

22 ‘‘(B) has not submitted a certification 

23 under subsection (b)(2); 

24 ‘‘(C) does not satisfy the maintenance re25 quirement under subsection (b)(3); 


jbell on DSK7SPTVN1PROD with 
61 

HR 3409 RFS 

1 ‘‘(D) is not implementing a coal combus2 tion residuals permit program that— 

3 ‘‘(i) meets the specifications described 

4 in subsection (c); or 

5 ‘‘(ii)(I) is consistent with the certifi6 cation under subsection (b)(2)(B)(iii); and 

7 ‘‘(II) maintains fully effective 

8 statutes or regulations necessary to 

9 implement a coal combustion residuals 

10 permit program; or 

11 ‘‘(E) does not make available to the Ad12 ministrator, within 90 days of a written re13 quest, specific information necessary for the 

14 Administrator to ascertain whether the State 

15 has complied with subparagraphs (A) through 

16 (D). 

17 ‘‘(2) REQUEST.—If the request described in 

18 paragraph (1)(E) is made pursuant to a petition of 

19 the Administrator, the Administrator shall only 

20 make the request if the Administrator does not pos21 sess the information necessary to ascertain whether 

22 the State has complied with subparagraphs (A) 

23 through (D) of paragraph (1). 


jbell on DSK7SPTVN1PROD with 
62 

HR 3409 RFS 

1 ‘‘(3) CONTENTS OF NOTICE; DEADLINE FOR RE2 SPONSE.—A notice provided under this subsection 

3 shall— 

4 ‘‘(A) include findings of the Administrator 

5 detailing any applicable deficiencies in— 

6 ‘‘(i) compliance by the State with the 

7 notification requirement under subsection 

8 (b)(1); 

9 ‘‘(ii) compliance by the State with the 

10 certification requirement under subsection 

11 (b)(2); 

12 ‘‘(iii) compliance by the State with the 

13 maintenance requirement under subsection 

14 (b)(3); 

15 ‘‘(iv) the State coal combustion re16 siduals permit program in meeting the 

17 specifications described in subsection (c); 

18 and 

19 ‘‘(v) compliance by the State with the 

20 request under paragraph (1)(E); and 

21 ‘‘(B) identify, in collaboration with the 

22 State, a reasonable deadline, by which the State 

23 shall remedy the deficiencies detailed under 

24 subparagraph (A), which shall be— 


jbell on DSK7SPTVN1PROD with 
63 

HR 3409 RFS 

1 ‘‘(i) in the case of a deficiency de2 scribed in clauses (i) through (iv) of sub3 paragraph (A), not earlier than 180 days 

4 after the date on which the State receives 

5 the notice; and 

6 ‘‘(ii) in the case of a deficiency de7 scribed in subparagraph (A)(v), not later 

8 than 90 days after the date on which the 

9 State receives the notice. 

10 ‘‘(e) IMPLEMENTATION BY ADMINISTRATOR.— 

11 ‘‘(1) IN GENERAL.—The Administrator shall 

12 implement a coal combustion residuals permit pro13 gram for a State only if— 

14 ‘‘(A) the Governor of the State notifies the 

15 Administrator under subsection (b)(1) that the 

16 State will not adopt and implement a permit 

17 program; 

18 ‘‘(B) the State has received a notice under 

19 subsection (d) and the Administrator deter20 mines, after providing a 30-day period for no21 tice and public comment, that the State has 

22 failed, by the deadline identified in the notice 

23 under subsection (d)(3)(B), to remedy the defi24 ciencies detailed in the notice under subsection 

25 (d)(3)(A); or 


jbell on DSK7SPTVN1PROD with 
64 

HR 3409 RFS 

1 ‘‘(C) the State informs the Administrator, 

2 in writing, that such State will no longer imple3 ment such a permit program. 

4 ‘‘(2) REVIEW.—A State may obtain a review of 

5 a determination by the Administrator under this 

6 subsection as if the determination was a final regu7 lation for purposes of section 7006. 

8 ‘‘(3) OTHER STRUCTURES.—For structures lo9 cated on property within the exterior boundaries of 

10 a State for which the State does not have authority 

11 or jurisdiction to regulate, the Administrator shall 

12 implement a coal combustion residuals permit pro13 gram only for those structures. 

14 ‘‘(4) REQUIREMENTS.—If the Administrator 

15 implements a coal combustion residuals permit pro16 gram for a State under paragraph (1) or (3), the 

17 permit program shall consist of the specifications de18 scribed in subsection (c). 

19 ‘‘(5) ENFORCEMENT.— 

20 ‘‘(A) IN GENERAL.—If the Administrator 

21 implements a coal combustion residuals permit 

22 program for a State under paragraph (1)— 

23 ‘‘(i) the authorities referred to in sec24 tion 4005(c)(2)(A) shall apply with respect 

25 to coal combustion residuals and structures 


jbell on DSK7SPTVN1PROD with 
65 

HR 3409 RFS 

1 for which the Administrator is imple2 menting the coal combustion residuals per3 mit program; and 

4 ‘‘(ii) the Administrator may use those 

5 authorities to inspect, gather information, 

6 and enforce the requirements of this sec7 tion in the State. 

8 ‘‘(B) OTHER STRUCTURES.—If the Admin9 istrator implements a coal combustion residuals 

10 permit program for a State under paragraph 

11 (3)— 

12 ‘‘(i) the authorities referred to in sec13 tion 4005(c)(2)(A) shall apply with respect 

14 to coal combustion residuals and structures 

15 for which the Administrator is imple16 menting the coal combustion residuals per17 mit program; and 

18 ‘‘(ii) the Administrator may use those 

19 authorities to inspect, gather information, 

20 and enforce the requirements of this sec21 tion for the structures for which the Ad22 ministrator is implementing the coal com23 bustion residuals permit program. 

24 ‘‘(f) STATE CONTROL AFTER IMPLEMENTATION BY

25 ADMINISTRATOR.— 


jbell on DSK7SPTVN1PROD with 
66 

HR 3409 RFS 

1 ‘‘(1) STATE CONTROL.— 

2 ‘‘(A) NEW ADOPTION AND IMPLEMENTA3 TION BY STATE.—For a State for which the 

4 Administrator is implementing a coal combus5 tion residuals permit program under subsection 

6 (e)(1)(A), the State may adopt and implement 

7 such a permit program by— 

8 ‘‘(i) notifying the Administrator that 

9 the State will adopt and implement such a 

10 permit program; 

11 ‘‘(ii) not later than 6 months after the 

12 date of such notification, submitting to the 

13 Administrator a certification under sub14 section (b)(2); and 

15 ‘‘(iii) receiving from the Adminis16 trator— 

17 ‘‘(I) a determination, after pro18 viding a 30-day period for notice and 

19 public comment that the State coal 

20 combustion residuals permit program 

21 meets the specifications described in 

22 subsection (c); and 

23 ‘‘(II) a timeline for transition of 

24 control of the coal combustion residu25 als permit program. 


jbell on DSK7SPTVN1PROD with 
67 

HR 3409 RFS 

1 ‘‘(B) REMEDYING DEFICIENT PERMIT PRO2 GRAM.—For a State for which the Adminis3 trator is implementing a coal combustion re4 siduals permit program under subsection 

5 (e)(1)(B), the State may adopt and implement 

6 such a permit program by— 

7 ‘‘(i) remedying only the deficiencies 

8 detailed in the notice provided under sub9 section (d)(3)(A); and 

10 ‘‘(ii) receiving from the Adminis11 trator— 

12 ‘‘(I) a determination, after pro13 viding a 30-day period for notice and 

14 public comment, that the deficiencies 

15 detailed in such notice have been rem16 edied; and 

17 ‘‘(II) a timeline for transition of 

18 control of the coal combustion residu19 als permit program. 

20 ‘‘(C) RESUMPTION OF IMPLEMENTATION

21 BY STATE.—For a State for which the Adminis22 trator is implementing a coal combustion re23 siduals permit program under subsection 

24 (e)(1)(C), the State may adopt and implement 

25 such a permit program by— 


jbell on DSK7SPTVN1PROD with 
68 

HR 3409 RFS 

1 ‘‘(i) notifying the Administrator that 

2 the State will adopt and implement such a 

3 permit program; 

4 ‘‘(ii) not later than 6 months after the 

5 date of such notification, submitting to the 

6 Administrator a certification under sub7 section (b)(2); and 

8 ‘‘(iii) receiving from the Adminis9 trator— 

10 ‘‘(I) a determination, after pro11 viding a 30-day period for notice and 

12 public comment, that the State coal 

13 combustion residuals permit program 

14 meets the specifications described in 

15 subsection (c); and 

16 ‘‘(II) a timeline for transition of 

17 control of the coal combustion residu18 als permit program. 

19 ‘‘(2) REVIEW OF DETERMINATION.— 

20 ‘‘(A) DETERMINATION REQUIRED.—The 

21 Administrator shall make a determination 

22 under paragraph (1) not later than 90 days 

23 after the date on which the State submits a cer24 tification under paragraph (1)(A)(ii) or 

25 (1)(C)(ii), or notifies the Administrator that the 


jbell on DSK7SPTVN1PROD with 
69 

HR 3409 RFS 

1 deficiencies have been remedied pursuant to 

2 paragraph (1)(B)(i), as applicable. 

3 ‘‘(B) REVIEW.—A State may obtain a re4 view of a determination by the Administrator 

5 under paragraph (1) as if such determination 

6 was a final regulation for purposes of section 

7 7006. 

8 ‘‘(3) IMPLEMENTATION DURING TRANSITION.— 

9 ‘‘(A) EFFECT ON ACTIONS AND ORDERS.— 

10 Actions taken or orders issued pursuant to a 

11 coal combustion residuals permit program shall 

12 remain in effect if— 

13 ‘‘(i) a State takes control of its coal 

14 combustion residuals permit program from 

15 the Administrator under paragraph (1); or 

16 ‘‘(ii) the Administrator takes control 

17 of a coal combustion residuals permit pro18 gram from a State under subsection (e). 

19 ‘‘(B) CHANGE IN REQUIREMENTS.—Sub20 paragraph (A) shall apply to such actions and 

21 orders until such time as the Administrator or 

22 the head of the lead State agency responsible 

23 for implementing the coal combustion residuals 

24 permit program, as applicable— 


jbell on DSK7SPTVN1PROD with 
70 

HR 3409 RFS 

1 ‘‘(i) implements changes to the re2 quirements of the coal combustion residu3 als permit program with respect to the 

4 basis for the action or order; or 

5 ‘‘(ii) certifies the completion of a cor6 rective action that is the subject of the ac7 tion or order. 

8 ‘‘(4) SINGLE PERMIT PROGRAM.—If a State 

9 adopts and implements a coal combustion residuals 

10 permit program under this subsection, the Adminis11 trator shall cease to implement the permit program 

12 implemented under subsection (e)(1) for such State. 

13 ‘‘(g) EFFECT ON DETERMINATION UNDER 4005(C) 

14 OR 3006.—The Administrator shall not consider the im15 plementation of a coal combustion residuals permit pro16 gram by the Administrator under subsection (e) in making 

17 a determination of approval for a permit program or other 

18 system of prior approval and conditions under section 

19 4005(c) or of authorization for a program under section 

20 3006. 

21 ‘‘(h) CLOSURE.— 

22 ‘‘(1) IN GENERAL.—If it is determined, pursu23 ant to a coal combustion residuals permit program, 

24 that a structure should close, the time period and 

25 method for the closure of such structure shall be set 


jbell on DSK7SPTVN1PROD with 
71 

HR 3409 RFS 

1 forth in a closure plan that establishes a deadline for 

2 completion and that takes into account the nature 

3 and the site-specific characteristics of the structure 

4 to be closed. 

5 ‘‘(2) SURFACE IMPOUNDMENT.—In the case of 

6 a surface impoundment, the closure plan under 

7 paragraph (1) shall require, at a minimum, the re8 moval of liquid and the stabilization of remaining 

9 waste, as necessary to support the final cover. 

10 ‘‘(i) AUTHORITY.— 

11 ‘‘(1) STATE AUTHORITY.—Nothing in this sec12 tion shall preclude or deny any right of any State to 

13 adopt or enforce any regulation or requirement re14 specting coal combustion residuals that is more 

15 stringent or broader in scope than a regulation or 

16 requirement under this section. 

17 ‘‘(2) AUTHORITY OF THE ADMINISTRATOR.— 

18 ‘‘(A) IN GENERAL.—Except as provided in 

19 subsections (d) and (e) and section 6005, the 

20 Administrator shall, with respect to the regula21 tion of coal combustion residuals, defer to the 

22 States pursuant to this section. 

23 ‘‘(B) IMMINENT HAZARD.—Nothing in this 

24 section shall be construed as affecting the auVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
72 

HR 3409 RFS 

1 thority of the Administrator under section 7003 

2 with respect to coal combustion residuals. 

3 ‘‘(C) ENFORCEMENT ASSISTANCE ONLY

4 UPON REQUEST.—Upon request from the head 

5 of a lead State agency that is implementing a 

6 coal combustion residuals permit program, the 

7 Administrator may provide to such State agen8 cy only the enforcement assistance requested. 

9 ‘‘(D) CONCURRENT ENFORCEMENT.—Ex10 cept as provided in subparagraph (C), the Ad11 ministrator shall not have concurrent enforce12 ment authority when a State is implementing a 

13 coal combustion residuals permit program. 

14 ‘‘(E) OTHER AUTHORITY.—The Adminis15 trator shall not have authority to finalize the 

16 proposed rule published at pages 35128 

17 through 35264 of volume 75 of the Federal 

18 Register (June 21, 2010). 

19 ‘‘(3) CITIZEN SUITS.—Nothing in this section 

20 shall be construed to affect the authority of a person 

21 to commence a civil action in accordance with sec22 tion 7002. 

23 ‘‘(j) MINE RECLAMATION ACTIVITIES.—A coal com24 bustion residuals permit program implemented by the Ad25 ministrator under subsection (e) shall not apply to the utiVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00072 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
73 

HR 3409 RFS 

1 lization, placement, and storage of coal combustion residu2 als at surface mining and reclamation operations. 

3 ‘‘(k) DEFINITIONS.—In this section: 

4 ‘‘(1) COAL COMBUSTION RESIDUALS.—The 

5 term ‘coal combustion residuals’ means— 

6 ‘‘(A) the solid wastes listed in section 

7 3001(b)(3)(A)(i), including recoverable mate8 rials from such wastes; 

9 ‘‘(B) coal combustion wastes that are co10 managed with wastes produced in conjunction 

11 with the combustion of coal, provided that such 

12 wastes are not segregated and disposed of sepa13 rately from the coal combustion wastes and 

14 comprise a relatively small proportion of the 

15 total wastes being disposed in the structure; 

16 ‘‘(C) fluidized bed combustion wastes; 

17 ‘‘(D) wastes from the co-burning of coal 

18 with non-hazardous secondary materials, pro19 vided that coal makes up at least 50 percent of 

20 the total fuel burned; and 

21 ‘‘(E) wastes from the co-burning of coal 

22 with materials described in subparagraph (A) 

23 that are recovered from monofills. 

24 ‘‘(2) COAL COMBUSTION RESIDUALS PERMIT

25 PROGRAM.—The term ‘coal combustion residuals 


jbell on DSK7SPTVN1PROD with 
74 

HR 3409 RFS 

1 permit program’ means all of the authorities, activi2 ties, and procedures that comprise the system of 

3 prior approval and conditions implemented by or for 

4 a State to regulate the management and disposal of 

5 coal combustion residuals. 

6 ‘‘(3) CODE OF FEDERAL REGULATIONS.—The 

7 term ‘Code of Federal Regulations’ means the Code 

8 of Federal Regulations (as in effect on the date of 

9 enactment of this section) or any successor regula10 tions. 

11 ‘‘(4) PERMIT; PRIOR APPROVAL AND CONDI12 TIONS.—The terms ‘permit’ and ‘prior approval and 

13 conditions’ mean any authorization, license, or equiv14 alent control document that incorporates the re15 quirements and revised criteria described in para16 graphs (1) and (2) of subsection (c), respectively. 

17 ‘‘(5) REVISED CRITERIA.—The term ‘revised 

18 criteria’ means the criteria promulgated for munic19 ipal solid waste landfill units under section 4004(a) 

20 and under section 1008(a)(3), as revised under sec21 tion 4010(c). 

22 ‘‘(6) STRUCTURE.— 

23 ‘‘(A) IN GENERAL.—Except as provided in 

24 subparagraph (B), the term ‘structure’ means a 

25 landfill, surface impoundment, or other landVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
75 

HR 3409 RFS 

1 based unit which may receive coal combustion 

2 residuals. 

3 ‘‘(B) DE MINIMIS RECEIPT.—The term 

4 ‘structure’ does not include any land-based unit 

5 that receives only de minimis quantities of coal 

6 combustion residuals if the presence of coal 

7 combustion residuals is incidental to the mate8 rial managed in the unit.’’. 

9 (b) CONFORMING AMENDMENT.—The table of con10 tents contained in section 1001 of the Solid Waste Dis11 posal Act is amended by inserting after the item relating 

12 to section 4010 the following: 

‘‘Sec. 4011. Management and disposal of coal combustion residuals.’’. 

13 SEC. 402. 2000 REGULATORY DETERMINATION. 

14 Nothing in this title, or the amendments made by this 

15 title, shall be construed to alter in any manner the Envi16 ronmental Protection Agency’s regulatory determination 

17 entitled ‘‘Notice of Regulatory Determination on Wastes 

18 from the Combustion of Fossil Fuels’’, published at 65 

19 Fed. Reg. 32214 (May 22, 2000), that the fossil fuel com20 bustion wastes addressed in that determination do not 

21 warrant regulation under subtitle C of the Solid Waste 

22 Disposal Act (42 U.S.C. 6921 et seq.). 

23 SEC. 403. TECHNICAL ASSISTANCE. 

24 Nothing in this title, or the amendments made by this 

25 title, shall be construed to affect the authority of a State 


jbell on DSK7SPTVN1PROD with 
76 

HR 3409 RFS 

1 to request, or the Administrator of the Environmental 

2 Protection Agency to provide, technical assistance under 

3 the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.). 

4 SEC. 404. FEDERAL POWER ACT. 

5 Nothing in this title, or the amendments made by this 

6 title, shall be construed to affect the obligations of the 

7 owner or operator of a structure (as defined in section 

8 4011 of the Solid Waste Disposal Act, as added by this 

9 title) under section 215(b)(1) of the Federal Power Act 

10 (16 U.S.C. 824o(b)(1)). 

11 TITLE V—PRESERVING STATE 

12 AUTHORITY TO MAKE DETER13 MINATIONS RELATING TO 

14 WATER QUALITY STANDARDS 

15 SEC. 501. STATE WATER QUALITY STANDARDS. 

16 (a) STATE WATER QUALITY STANDARDS.—Section 

17 303(c)(4) of the Federal Water Pollution Control Act (33 

18 U.S.C. 1313(c)(4)) is amended— 

19 (1) by redesignating subparagraphs (A) and 

20 (B) as clauses (i) and (ii), respectively; 

21 (2) by striking ‘‘(4)’’ and inserting ‘‘(4)(A)’’; 

22 (3) by striking ‘‘The Administrator shall pro23 mulgate’’ and inserting the following: 

24 ‘‘(B) The Administrator shall promulgate’’; and 

25 (4) by adding at the end the following: 


jbell on DSK7SPTVN1PROD with 
77 

HR 3409 RFS 

1 ‘‘(C) Notwithstanding subparagraph (A)(ii), the Ad2 ministrator may not promulgate a revised or new standard 

3 for a pollutant in any case in which the State has sub4 mitted to the Administrator and the Administrator has ap5 proved a water quality standard for that pollutant, unless 

6 the State concurs with the Administrator’s determination 

7 that the revised or new standard is necessary to meet the 

8 requirements of this Act.’’. 

9 (b) FEDERAL LICENSES AND PERMITS.—Section 

10 401(a) of such Act (33 U.S.C. 1341(a)) is amended by 

11 adding at the end the following: 

12 ‘‘(7) With respect to any discharge, if a State or 

13 interstate agency having jurisdiction over the navigable 

14 waters at the point where the discharge originates or will 

15 originate determines under paragraph (1) that the dis16 charge will comply with the applicable provisions of sec17 tions 301, 302, 303, 306, and 307, the Administrator may 

18 not take any action to supersede the determination.’’. 

19 (c) STATE NPDES PERMIT PROGRAMS.—Section 

20 402(c) of such Act (42 U.S.C. 1342(c)) is amended by 

21 adding at the end the following: 

22 ‘‘(5) LIMITATION ON AUTHORITY OF ADMINIS23 TRATOR TO WITHDRAW APPROVAL OF STATE PRO24 GRAMS.—The Administrator may not withdraw ap25 proval of a State program under paragraph (3) or 


jbell on DSK7SPTVN1PROD with 
78 

HR 3409 RFS 

1 (4), or limit Federal financial assistance for the 

2 State program, on the basis that the Administrator 

3 disagrees with the State regarding— 

4 ‘‘(A) the implementation of any water 

5 quality standard that has been adopted by the 

6 State and approved by the Administrator under 

7 section 303(c); or 

8 ‘‘(B) the implementation of any Federal 

9 guidance that directs the interpretation of the 

10 State’s water quality standards.’’. 

11 (d) LIMITATION ON AUTHORITY OF ADMINISTRATOR

12 TO OBJECT TO INDIVIDUAL PERMITS.—Section 402(d) of 

13 such Act (33 U.S.C. 1342(d)) is amended by adding at 

14 the end the following: 

15 ‘‘(5) The Administrator may not object under para16 graph (2) to the issuance of a permit by a State on the 

17 basis of— 

18 ‘‘(A) the Administrator’s interpretation of a 

19 water quality standard that has been adopted by the 

20 State and approved by the Administrator under sec21 tion 303(c); or 

22 ‘‘(B) the implementation of any Federal guid23 ance that directs the interpretation of the State’s 

24 water quality standards.’’. 


jbell on DSK7SPTVN1PROD with 
79 

HR 3409 RFS 

1 SEC. 502. PERMITS FOR DREDGED OR FILL MATERIAL. 

2 (a) AUTHORITY OF EPA ADMINISTRATOR.—Section 

3 404(c) of the Federal Water Pollution Control Act (33 

4 U.S.C. 1344(c)) is amended— 

5 (1) by striking ‘‘(c)’’ and inserting ‘‘(c)(1)’’; 

6 and 

7 (2) by adding at the end the following: 

8 ‘‘(2) Paragraph (1) shall not apply to any permit if 

9 the State in which the discharge originates or will origi10 nate does not concur with the Administrator’s determina11 tion that the discharge will result in an unacceptable ad12 verse effect as described in paragraph (1). 

13 ‘‘(3) Following the date of issuance of a permit by 

14 the Secretary in accordance with this section, the Adminis15 trator may not take any action under paragraph (1) to 

16 retroactively invalidate the permit.’’. 

17 (b) STATE PERMIT PROGRAMS.—The first sentence 

18 of section 404(g)(1) of such Act (33 U.S.C. 1344(g)(1)) 

19 is amended by striking ‘‘The Governor of any State desir20 ing to administer its own individual and general permit 

21 program for the discharge’’ and inserting ‘‘The Governor 

22 of any State desiring to administer its own individual and 

23 general permit program for some or all of the discharges’’. 

24 SEC. 503. DEADLINES FOR AGENCY COMMENTS. 

25 Section 404 of the Federal Water Pollution Control 

26 Act (33 U.S.C. 1344) is amended— 


jbell on DSK7SPTVN1PROD with 
80 

HR 3409 RFS 

1 (1) in subsection (m) by striking ‘‘ninetieth 

2 day’’ and inserting ‘‘30th day (or the 60th day if ad3 ditional time is requested)’’; and 

4 (2) in subsection (q)— 

5 (A) by striking ‘‘(q)’’ and inserting 

6 ‘‘(q)(1)’’; and 

7 (B) by adding at the end the following: 

8 ‘‘(2) The Administrator and the head of a depart9 ment or agency referred to in paragraph (1) shall each 

10 submit any comments with respect to an application for 

11 a permit under subsection (a) or (e) not later than the 

12 30th day (or the 60th day if additional time is requested) 

13 after the date of receipt of an application for a permit 

14 under that subsection.’’. 

15 SEC. 504. APPLICABILITY OF AMENDMENTS. 

16 The amendments made by this title shall apply to ac17 tions taken on or after the date of enactment of this Act, 

18 including actions taken with respect to permit applications 

19 that are pending or revised or new standards that are 

20 being promulgated as of such date of enactment. 

21 SEC. 505. REPORTING ON HARMFUL POLLUTANTS. 

22 Not later than 1 year after the date of enactment 

23 of this Act, and annually thereafter, the Administrator of 

24 the Environmental Protection Agency shall submit to Con25 gress a report on any increase or reduction in waterborne 


jbell on DSK7SPTVN1PROD with 
81 

HR 3409 RFS 

1 pathogenic microorganisms (including protozoa, viruses, 

2 bacteria, and parasites), toxic chemicals, or toxic metals 

3 (such as lead and mercury) in waters regulated by a State 

4 under the provisions of this title, including the amend5 ments made by this title. 

6 SEC. 506. PIPELINES CROSSING STREAMBEDS. 

7 None of the provisions of this title, including the 

8 amendments made by this title, shall be construed to limit 

9 the authority of the Administrator of the Environmental 

10 Protection Agency, as in effect on the day before the date 

11 of enactment of this Act, to regulate a pipeline that 

12 crosses a streambed. 

13 SEC. 507. IMPACTS OF EPA REGULATORY ACTIVITY ON EM14 PLOYMENT AND ECONOMIC ACTIVITY. 

15 (a) ANALYSIS OF IMPACTS OF ACTIONS ON EMPLOY16 MENT AND ECONOMIC ACTIVITY.— 

17 (1) ANALYSIS.—Before taking a covered action, 

18 the Administrator shall analyze the impact, 

19 disaggregated by State, of the covered action on em20 ployment levels and economic activity, including esti21 mated job losses and decreased economic activity. 

22 (2) ECONOMIC MODELS.— 

23 (A) IN GENERAL.—In carrying out para24 graph (1), the Administrator shall utilize the 

25 best available economic models. 


jbell on DSK7SPTVN1PROD with 
82 

HR 3409 RFS 

1 (B) ANNUAL GAO REPORT.—Not later 

2 than December 31st of each year, the Comp3 troller General of the United States shall sub4 mit to Congress a report on the economic mod5 els used by the Administrator to carry out this 

6 subsection. 

7 (3) AVAILABILITY OF INFORMATION.—With re8 spect to any covered action, the Administrator 

9 shall— 

10 (A) post the analysis under paragraph (1) 

11 as a link on the main page of the public Inter12 net Web site of the Environmental Protection 

13 Agency; and 

14 (B) request that the Governor of any State 

15 experiencing more than a de minimis negative 

16 impact post such analysis in the Capitol of such 

17 State. 

18 (b) PUBLIC HEARINGS.— 

19 (1) IN GENERAL.—If the Administrator con20 cludes under subsection (a)(1) that a covered action 

21 will have more than a de minimis negative impact on 

22 employment levels or economic activity in a State, 

23 the Administrator shall hold a public hearing in each 

24 such State at least 30 days prior to the effective 

25 date of the covered action. 


jbell on DSK7SPTVN1PROD with 
83 

HR 3409 RFS 

1 (2) TIME, LOCATION, AND SELECTION.—A pub2 lic hearing required under paragraph (1) shall be 

3 held at a convenient time and location for impacted 

4 residents. In selecting a location for such a public 

5 hearing, the Administrator shall give priority to loca6 tions in the State that will experience the greatest 

7 number of job losses. 

8 (c) NOTIFICATION.—If the Administrator concludes 

9 under subsection (a)(1) that a covered action will have 

10 more than a de minimis negative impact on employment 

11 levels or economic activity in any State, the Administrator 

12 shall give notice of such impact to the State’s Congres13 sional delegation, Governor, and Legislature at least 45 

14 days before the effective date of the covered action. 

15 (d) DEFINITIONS.—In this section, the following defi16 nitions apply: 

17 (1) ADMINISTRATOR.—The term ‘‘Adminis18 trator’’ means the Administrator of the Environ19 mental Protection Agency. 

20 (2) COVERED ACTION.—The term ‘‘covered ac21 tion’’ means any of the following actions taken by 

22 the Administrator under the Federal Water Pollu23 tion Control Act (33 U.S.C. 1201 et seq.): 


jbell on DSK7SPTVN1PROD with 
84 

HR 3409 RFS 

1 (A) Issuing a regulation, policy statement, 

2 guidance, response to a petition, or other re3 quirement. 

4 (B) Implementing a new or substantially 

5 altered program. 

6 (3) MORE THAN A DE MINIMIS NEGATIVE IM7 PACT.—The term ‘‘more than a de minimis negative 

8 impact’’ means the following: 

9 (A) With respect to employment levels, a 

10 loss of more than 100 jobs. Any offsetting job 

11 gains that result from the hypothetical creation 

12 of new jobs through new technologies or govern13 ment employment may not be used in the job 

14 loss calculation. 

15 (B) With respect to economic activity, a 

16 decrease in economic activity of more than 

17 $1,000,000 over any calendar year. Any offset18 ting economic activity that results from the hy19 pothetical creation of new economic activity 

20 through new technologies or government em21 ployment may not be used in the economic ac22 tivity calculation. 


jbell on DSK7SPTVN1PROD with 
85 

HR 3409 RFS 

1 TITLE VI—REGIONAL HAZE 

2 REGULATORY RELIEF 

3 SEC. 601. IMPLEMENTATION PLANS. 

4 Section 110 of the Clean Air Act (42 U.S.C. 7410) 

5 is amended— 

6 (1) in subsection (c), by striking ‘‘(c)(1) The 

7 Administrator’’ and all that follows through the end 

8 of paragraph (1) and inserting the following: 

9 ‘‘(c) FEDERAL PLANS.— 

10 ‘‘(1) PLANS.— 

11 ‘‘(A) IN GENERAL.—Except as provided in 

12 subparagraph (C), unless the conditions de13 scribed in subparagraph (B) are met, the Ad14 ministrator shall promulgate a Federal imple15 mentation plan at any time after the date that 

16 is 2 years after the date on which the Adminis17 trator— 

18 ‘‘(i) finds that a State has failed to 

19 make a required submission or finds that 

20 the plan or plan revision submitted by the 

21 State does not satisfy the minimum cri22 teria established under subsection 

23 (k)(1)(A); or 

24 ‘‘(ii) disapproves a State implementa25 tion plan submission. 


jbell on DSK7SPTVN1PROD with 
86 

HR 3409 RFS 

1 ‘‘(B) CONDITIONS.—The conditions de2 scribed in this subparagraph are that, before 

3 the date on which the Administrator promul4 gates a Federal implementation plan— 

5 ‘‘(i) a State corrects a deficiency in a 

6 State implementation plan or plan revision 

7 submitted by the State; and 

8 ‘‘(ii) the Administrator approves the 

9 plan or plan revision. 

10 ‘‘(C) VISIBILITY PROTECTION PLANS.—In 

11 the case of a Federal implementation plan pro12 mulgated after the date of enactment of this 

13 subparagraph in place of a State implementa14 tion plan under section 169A— 

15 ‘‘(i) the Administrator shall promul16 gate such Federal implementation plan 

17 only if the Administrator makes a finding 

18 that the State submitting the State imple19 mentation plan failed to consider the fac20 tors described in paragraphs (1) and (2) of 

21 section 169A(g) in preparing and submit22 ting the plan; and 

23 ‘‘(ii) compliance with the requirements 

24 of such Federal implementation plan shall 


jbell on DSK7SPTVN1PROD with 
87 

HR 3409 RFS 

1 not be required earlier than 5 years after 

2 the date of promulgation.’’; and 

3 (2) in subsection (k)— 

4 (A) by striking paragraph (3) and insert5 ing the following: 

6 ‘‘(3) FULL APPROVAL AND DISAPPROVAL.— 

7 ‘‘(A) IN GENERAL.—Except as provided in 

8 subparagraphs (B) and (C), in the case of any 

9 submission for which the Administrator is re10 quired to act under paragraph (2), the Admin11 istrator shall approve the submission as a whole 

12 if the submission meets all of the applicable re13 quirements of this Act. 

14 ‘‘(B) REVIEW.—In reviewing any State im15 plementation plan submitted pursuant to sec16 tion 169A, the Administrator shall limit the re17 view only to a determination of whether the 

18 State submitting the State implementation plan 

19 considered the factors described in paragraphs 

20 (1) and (2) of section 169A(g) in preparing and 

21 submitting the plan. 

22 ‘‘(C) VISIBILITY PLANS.—The Adminis23 trator shall approve as a whole any implementa24 tion plan submitted pursuant to section 169A 

25 that was prepared and submitted after considVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
88 

HR 3409 RFS 

1 eration of the factors described in paragraphs 

2 (1) and (2) of section 169A(g).’’; and 

3 (B) in paragraph (5)— 

4 (i) in the first sentence, by striking 

5 ‘‘Whenever’’ and inserting the following: 

6 ‘‘(A) IN GENERAL.—Whenever’’; and 

7 (ii) by adding at the end the fol8 lowing: 

9 ‘‘(B) VISIBILITY PLANS.—Notwithstanding 

10 subparagraph (A), with respect to an implemen11 tation plan approved pursuant to section 169A, 

12 the Administrator shall only find that such a 

13 plan is substantially inadequate to meet stand14 ards for air pollutants that cause or contribute 

15 to the impairment of visibility, or any other ap16 plicable standard or requirement, under that 

17 section if the Administrator makes a finding 

18 that, in preparing the plan, the submitting 

19 State failed to consider the factors described in 

20 paragraphs (1) and (2) of section 169A(g). 

21 ‘‘(C) EXISTING VISIBILITY PLANS.— 

22 ‘‘(i) REQUEST FOR REVOCATION.—At 

23 any time after the date of enactment of 

24 this subparagraph— 


jbell on DSK7SPTVN1PROD with 
89 

HR 3409 RFS 

1 ‘‘(I) a State may request that the 

2 existing Federal or State implementa3 tion plan for the State regarding visi4 bility, or any determination made in 

5 calendar year 2012 or 2013 of best 

6 available retrofit technology pursuant 

7 to section 169A, be revoked; and 

8 ‘‘(II) upon receipt of such a re9 quest, the Administrator shall revoke 

10 the implementation plan. 

11 ‘‘(ii) SUBMISSION OF NEW OR RE12 VISED PLAN.—Upon a revocation under 

13 clause (i)(II), the State that requested the 

14 revocation shall, not later than 2 years 

15 after such revocation, submit to the Ad16 ministrator a new or revised visibility plan 

17 in accordance with this Act.’’. 

18 SEC. 602. VISIBILITY PROTECTION FOR FEDERAL CLASS I 

19 AREAS. 

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

21 is amended— 

22 (1) in subsection (b)(2), in the matter pre23 ceding subparagraph (A), by striking ‘‘as may be 

24 necessary’’ and inserting ‘‘as the State determines, 

25 at the sole discretion of the State after considering 


jbell on DSK7SPTVN1PROD with 
90 

HR 3409 RFS 

1 factors described in this section and providing ade2 quate opportunity for public comment, may be nec3 essary’’; and 

4 (2) in subsection (g)— 

5 (A) by striking paragraph (1) and insert6 ing the following: 

7 ‘‘(1)(A) in determining reasonable progress, 

8 there shall be taken into consideration— 

9 ‘‘(i) the costs of compliance; 

10 ‘‘(ii) the time necessary for compli11 ance; 

12 ‘‘(iii) the energy and nonair quality 

13 environmental impacts of compliance; 

14 ‘‘(iv) the remaining useful life of any 

15 existing source subject to requirements 

16 under this section; 

17 ‘‘(v) the degree of improvement in vis18 ibility that may reasonably be anticipated 

19 to result from measures described in the 

20 applicable implementation plan; and 

21 ‘‘(vi) the economic impacts to the 

22 State (including people of the State); 

23 ‘‘(B) in consideration of costs of compli24 ance pursuant to subparagraph (A)(i), the 

25 State may use source-specific cost estimations 


jbell on DSK7SPTVN1PROD with 
91 

HR 3409 RFS 

1 developed by a licensed professional engineer as 

2 an alternate to other methods of estimation ap3 proved by the Administrator; and 

4 ‘‘(C) in consideration of the degree of im5 provement in visibility pursuant to subpara6 graph (A)(v), the State may use alternate mod7 eling techniques or methods than those pre8 scribed by the Administrator in the Agency’s 

9 ‘Guideline on Air Quality Models’ under appen10 dix W to part 51 of title 40, Code of Federal 

11 Regulations, and, where available, measured 

12 emissions and monitoring data shall be used;’’; 

13 (B) in paragraph (2)— 

14 (i) by striking ‘‘(2) in determining 

15 best available retrofit technology the 

16 State’’ and inserting the following: 

17 ‘‘(2) in determining the best available retrofit 

18 technology— 

19 ‘‘(A) the State’’; 

20 (ii) in subparagraph (A) (as des21 ignated by clause (i)), by inserting ‘‘the 

22 economic impacts to the State (including 

23 people of the State),’’ after ‘‘life of the 

24 source,’’; 


jbell on DSK7SPTVN1PROD with 
92 

HR 3409 RFS 

1 (iii) by striking ‘‘technology;’’ and in2 serting ‘‘technology; and’’; and 

3 (iv) by adding at the end the fol4 lowing: 

5 ‘‘(B) in consideration of the costs of com6 pliance pursuant to subparagraph (A), the 

7 State may use source-specific cost estimations 

8 developed by a licensed professional engineer as 

9 an alternate to other methods of estimation ap10 proved by the Administrator; 

11 ‘‘(C) with respect to consideration of the 

12 degree of improvement in visibility pursuant to 

13 subparagraph (A)— 

14 ‘‘(i) the State may use alternate mod15 eling techniques or methods than those 

16 prescribed by the Administrator in the 

17 Agency’s ‘Guideline on Air Quality Models’ 

18 under appendix W to part 51 of title 40, 

19 Code of Federal Regulations; 

20 ‘‘(ii) the State may consider the de21 gree of improvement in visibility in the 

22 mandatory class I Federal area that is 

23 most affected by emissions from the source 

24 without considering the degree of improveVerDate Mar 15 2010 23:40 Nov 13, 2012 Jkt 029200 PO 00000 Frm 00092 Fmt 6652 Sfmt 6201 E:\BILLS\H3409.RFS H3409

jbell on DSK7SPTVN1PROD with 
93 

HR 3409 RFS 

1 ment in visibility in any other such area; 

2 and 

3 ‘‘(iii) the Administrator (in any case 

4 in which the Administrator has authority 

5 to determine emission limitations which re6 flect such technology) may not consider the 

7 degree of improvement in visibility in any 

8 area other than the mandatory class I Fed9 eral area that is most affected by emis10 sions from the source; and 

11 ‘‘(D) the determination of best available 

12 retrofit technology by the State for any source 

13 shall be subject to review by the Administrator, 

14 an administrative entity, or a Federal or State 

15 court only pursuant to a clearly erroneous 

16 standard of review;’’; and 

17 (C) in paragraph (4), by striking ‘‘(or the 

18 date of promulgation of such a plan revision in 

19 the case of action by the Administrator under 

20 section 110(c) for purposes of this section)’’. 


jbell on DSK7SPTVN1PROD with 
94 

HR 3409 RFS 

1 TITLE VII—NO REGIONAL HAZE 

2 REGULATION ON THE COAL3 POWERED NAVAJO GENER4 ATING STATION 

5 SEC. 701. LIMITATION ON AUTHORITY TO ISSUE REGULA6 TIONS. 

7 The Administrator of the Environmental Protection 

8 Agency shall not promulgate any Federal implementation 

9 plan pursuant to section 169A or 169B of the Clean Air 

10 Act (42 U.S.C. 7491, 7492; relating to visibility protec11 tion) that would— 

12 (1) adversely impact employment at the coal13 powered Navajo Generating Station or other coal14 fired power plants and coal mines on tribal lands in 

15 northern Arizona; 

16 (2) directly or indirectly diminish the revenue 

17 received by the Federal Government or any State, 

18 tribal or local government by reducing through regu19 lation the amount of coal that is available for mining 

20 on Navajo and Hopi Reservation lands; 

21 (3) cause a reduction in coal-based revenue to 

22 meet financial obligations required by federally au23 thorized Indian water rights settlements, pursuant 

24 to section 403(f) of the Colorado River Basin 

25 Project Act (43 U.S.C. 1543(f)): 


jbell on DSK7SPTVN1PROD with 
95 

HR 3409 RFS 

1 (4) reduce the amount of coal, or increase the 

2 cost of coal, available for the Navajo Generating 

3 Station’s Federal responsibility to deliver water and 

4 power, as authorized by the Colorado River Basin 

5 Project Act (43 U.S.C. 1501 et seq.); or 

6 (5) expose the United States to liability for tak7 ing the value of tribally-owned coal in northern Ari8 zona through regulation. 

Passed the House of Representatives September 21, 

2012. 

Attest: KAREN L. HAAS, 

Clerk. 


jbell on DSK7SPTVN1PROD with