II 

112TH CONGRESS 

1ST SESSION S. 1971 

To provide for the establishment of a committee to assess the effects of 

certain Federal regulatory mandates and to provide for relief from those 

mandates, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 8, 2011 

Mr. INHOFE (for himself and Mr. JOHANNS) introduced the following bill; 

which was read twice and referred to the Committee on Environment and 

Public Works 

A BILL 

To provide for the establishment of a committee to assess 

the effects of certain Federal regulatory mandates and 

to provide for relief from those mandates, and for other 

purposes. 

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

5 ‘‘Comprehensive Assessment of Regulations on the Econ6 omy Act of 2011’’. 

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

8 this Act is as follows: 


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Sec. 1. Short title; table of contents. 

Sec. 2. Definitions. 

TITLE I—REGULATORY ASSESSMENT 

Sec. 101. Cumulative Regulatory Assessment Committee. 

Sec. 102. Additional provisions relating to certain rules. 

Sec. 103. Consideration of feasibility and cost in establishing national ambient 

air quality standards. 

TITLE II—REGULATORY RELIEF 

Sec. 201. Legislative stay. 

Sec. 202. Compliance dates. 

Sec. 203. Energy recovery and conservation. 

Sec. 204. Other provisions. 

TITLE III—COAL RESIDUALS REUSE AND MANAGEMENT 

Sec. 301. Short title. 

Sec. 302. Amendment to Subtitle D of the Solid Waste Disposal Act. 

Sec. 303. 2000 regulatory determination. 

Sec. 304. Effect of title. 

TITLE IV—THERMAL DISCHARGES 

Sec. 401. Short title. 

Sec. 402. Thermal discharge. 

Sec. 403. Regulations. 

1 SEC. 2. DEFINITIONS. 

2 In this Act: 

3 (1) ADMINISTRATOR.—The term ‘‘Adminis4 trator’’ means the Administrator of the Environ5 mental Protection Agency. 

6 (2) CLEAN AIR INTERSTATE RULE.—The term 

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

8 Interstate Rule and the rule establishing Federal 

9 Implementation Plans for the Clean Air Interstate 

10 Rule, as promulgated and modified by the Adminis11 trator (70 Fed. Reg. 25162 (May 12, 2005), 71 

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

13 55657 (October 1, 2007), 72 Fed. Reg. 59190 (OcVerDate Mar 15 2010 04:29 Dec 10, 2011 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1971.IS S1971

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1 tober 19, 2007), 72 Fed. Reg. 62338 (November 2, 

2 2007), 74 Fed. Reg. 56721 (November 3, 2009)). 

3 (3) COMMITTEE.—The term ‘‘Committee’’ 

4 means the Cumulative Regulatory Assessment Com5 mittee established by section 101(a). 

6 (4) FEDERAL REGULATORY MANDATE.—The 

7 term ‘‘Federal regulatory mandate’’ means any reg8 ulation, rule, requirement, or interpretative guidance 

9 that— 

10 (A) is promulgated or issued (or is ex11 pected to be initiated) by the Administrator or 

12 a State or local government during the period 

13 beginning on January 1, 2010, and ending on 

14 January 1, 2020; 

15 (B) applies to 1 or more impacted units; 

16 and 

17 (C) implements any provision or require18 ment relating to— 

19 (i) interstate or international trans20 port of air pollution under section 

21 110(a)(2)(D), 115, or 126(b) of the Clean 

22 Air Act (42 U.S.C. 7410(a)(2)(D), 7415, 

23 7426(b)) with respect to any national am24 bient air quality standard, including— 


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1 (I) any standard that has been 

2 promulgated or proposed before July 

3 1, 2011; and 

4 (II) any new or revised standard 

5 for ozone or fine particulate matter 

6 that, as of the date of enactment of 

7 this Act, is currently under review or 

8 development by the Administrator; 

9 and 

10 (ii) the attainment, or maintenance of 

11 attainment, of any national ambient air 

12 quality standard, including— 

13 (I) any new or revised standard 

14 for ozone or fine particulate matter 

15 that, as of the date of enactment of 

16 this Act, is currently under review or 

17 development by the Administrator; 

18 and 

19 (II) any other standard that has 

20 been promulgated or proposed before 

21 July 1, 2011; 

22 (iii) new source performance stand23 ards under section 111 of the Clean Air 

24 Act (42 U.S.C. 7411), including any stand25 ards under subsection (d) of that section; 


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1 (iv) hazardous air pollutants under 

2 section 112 of the Clean Air Act (42 

3 U.S.C. 7412); 

4 (v) greenhouse gas emissions under ti5 tles I, II, and V of the Clean Air Act (42 

6 U.S.C. 7401 et seq.), including the require7 ments for— 

8 (I) new source performance 

9 standards under section 111 of the 

10 Clean Air Act (42 U.S.C. 7411), in11 cluding any standards under sub12 section (d) of that section; and 

13 (II) preconstruction review per14 mits under section 165 of the Clean 

15 Air Act (42 U.S.C. 7475); 

16 (vi) cooling water intake structures 

17 under section 316(b) of the Clean Water 

18 Act (33 U.S.C. 1326(b)); 

19 (vii) effluent guidelines for regulating 

20 the discharge of pollutants under section 

21 304 of the Clean Water Act (33 U.S.C. 

22 1314); 

23 (viii) the handling and disposal of coal 

24 combustion residuals under subtitle C or D 


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1 of the Solid Waste Disposal Act (42 

2 U.S.C. 6921 et seq.); 

3 (ix) the regulation of fuels under title 

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

5 et seq.); 

6 (x) regional haze or reasonably attrib7 utable visibility impairment under section 

8 169A or section 169B of the Clean Air Act 

9 (42 U.S.C. 7491, 7492); and 

10 (xi) any other environmental regula11 tions expected to have a significant impact 

12 on the electric power sector, the petroleum 

13 refining sector, the petrochemical produc14 tion sector, pipeline facilities regulated by 

15 the Department of Transportation or the 

16 Environmental Protection Agency, explo17 ration, production, or transportation of oil 

18 and natural gas, or any other manufac19 turing sector. 

20 (5) IMPACTED UNIT.—The term ‘‘impacted 

21 unit’’ means— 

22 (A) any electric generating unit that sells 

23 electricity into the grid; 

24 (B) any industrial, commercial, or institu25 tional boiler or process heater; 


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1 (C) any petroleum refining facility that 

2 produces gasoline, heating oil, diesel fuel, jet 

3 fuel, kerosene, or petrochemical feedstocks; 

4 (D) any petrochemical facility; 

5 (E) any hydrocarbon exploration, extrac6 tion, manufacturing, production, or transpor7 tation facility; or 

8 (F) any biofuel facility. 

9 TITLE I—REGULATORY 

10 ASSESSMENT 

11 SEC. 101. CUMULATIVE REGULATORY ASSESSMENT COM12 MITTEE. 

13 (a) ESTABLISHMENT.—There is established within 

14 the Department of Commerce a Committee, to be known 

15 as the ‘‘Cumulative Regulatory Assessment Committee’’. 

16 (b) COMPOSITION OF COMMITTEE.—The Committee 

17 shall consist of the following officials (or designees of the 

18 officials): 

19 (1) The Secretary of Agriculture. 

20 (2) The Secretary of Commerce. 

21 (3) The Secretary of Defense. 

22 (4) The Chairperson of the Council of Eco23 nomic Advisers. 

24 (5) The Secretary of Energy. 

25 (6) The Administrator. 


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1 (7) The Chairperson of the Federal Energy 

2 Regulatory Commission. 

3 (8) The Secretary of Labor. 

4 (9) The Administrator of the Office of Informa5 tion and Regulatory Affairs. 

6 (10) The President and Chief Executive Officer 

7 of the North American Electric Reliability Corpora8 tion. 

9 (11) The Chief Counsel for Advocacy of the 

10 Small Business Administration. 

11 (c) LEADERSHIP; OPERATIONS.—The Secretary of 

12 Commerce shall— 

13 (1) serve as the Chairperson of the Committee; 

14 and 

15 (2) be responsible for the executive and admin16 istrative operation of the Committee. 

17 (d) IDENTIFICATION OF FEDERAL REGULATORY

18 MANDATES.—Not later than 30 days after the date of en19 actment of this Act, the Administrator shall provide to the 

20 Committee a list of Federal regulatory mandates. 

21 (e) DUTIES.— 

22 (1) ASSESSMENT.— 

23 (A) IN GENERAL.—The Committee shall 

24 perform an assessment of the cumulative energy 

25 and economic impacts of the Federal regulatory 


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1 mandates in accordance with this subsection, 

2 including direct, indirect, quantifiable, and 

3 qualitative effects on— 

4 (i) employment, including job levels in 

5 each segment of the economy and each re6 gion of the United States, including coal7 producing regions; 

8 (ii) economic development, including 

9 production levels and labor demands in 

10 manufacturing, commercial, and other sec11 tors of the economy; 

12 (iii) the electric power sector, includ13 ing potential impacts on electric reliability, 

14 energy security, and retail electricity rates; 

15 (iv) the domestic refining and petro16 chemical sector, including potential im17 pacts on supply, international competitive18 ness, wholesale and retail transportation 

19 fuels, and heating oil and petrochemical 

20 prices; 

21 (v) State and local governments, in22 cluding potential impacts on governmental 

23 operations and local communities from any 

24 reductions in State and local tax revenues; 


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1 (vi) small businesses (as defined in 

2 section 601 of title 5, United States Code), 

3 including economic and regulatory impacts 

4 that could force the shutdown or limit the 

5 growth of small businesses; 

6 (vii) agriculture, including economic 

7 and regulatory impacts that could force the 

8 shutdown, or limit growth or productive 

9 capacity, of the agricultural industry in the 

10 United States, including the domestic fer11 tilizer manufacturing industry; and 

12 (viii) energy-intensive, trade-exposed 

13 industry (as defined in North American In14 dustry Classification System codes 31, 32, 

15 and 33) (including the beneficiation or 

16 processing (including agglomeration) of 

17 metal ores (including iron and copper 

18 ores), soda ash, or phosphate, petroleum 

19 refining, and petrochemicals production), 

20 including economic and regulatory impacts 

21 that could force the shutdown, or limit 

22 growth of productive capacity, of the 

23 United States manufacturing industry. 

24 (B) COMPREHENSIVE ANALYSIS.—The as25 sessment shall include a comprehensive analVerDate Mar 15 2010 04:29 Dec 10, 2011 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1971.IS S1971

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1 ysis, for the period beginning on January 1, 

2 2012, and ending on December 31, 2025, of the 

3 following matters: 

4 (i) The impacted units that would 

5 likely retire due to the cumulative compli6 ance costs of the Federal regulatory man7 dates. 

8 (ii) The amount by which average re9 tail electricity prices are forecasted to in10 crease above inflation as a result of— 

11 (I) the cumulative compliance 

12 costs of the Federal regulatory man13 dates; 

14 (II) the retirement of electric 

15 generating units that are impacted 

16 units described in clause (i); and 

17 (III) other direct and indirect im18 pacts that are expected to result from 

19 the cumulative compliance obligations 

20 of the Federal regulatory mandates. 

21 (iii) The amount by which average re22 tail transportation fuel and heating oil 

23 prices are forecasted to increase above in24 flation as a result of— 


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1 (I) the cumulative compliance 

2 costs of the Federal regulatory man3 dates; 

4 (II) the retirement or closure of 

5 domestic refineries that are impacted 

6 units described in clause (i); 

7 (III) the likely foreign-sourced 

8 replacement for the transportation 

9 fuels and heating oil supplies loss 

10 caused by the retirements or closures 

11 identified under subclause (II); and 

12 (IV) other direct and indirect im13 pacts that are expected to result from 

14 the cumulative compliance obligations 

15 of the Federal regulatory mandates. 

16 (iv) The amount by which average pe17 trochemical prices are forecasted to in18 crease above inflation as a result of— 

19 (I) the cumulative compliance 

20 costs of the Federal regulatory man21 dates; 

22 (II) the retirement or closure of 

23 domestic petrochemical facilities that 

24 are impacted units described in clause 

25 (i); 


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1 (III) the likely foreign-sourced 

2 replacement for the petrochemical 

3 supplies loss caused by the retire4 ments or closures identified under 

5 subclause (II); and 

6 (IV) other direct and indirect im7 pacts that are expected to result from 

8 the cumulative compliance obligations 

9 of the Federal regulatory mandates. 

10 (v) The direct and indirect adverse 

11 impacts on the economies of local commu12 nities that are projected to result from the 

13 retirement of impacted units described in 

14 clause (i) and increased retail electricity, 

15 transportation fuels, heating oil, and petro16 chemical prices that are forecasted under 

17 clause (ii), including— 

18 (I) loss of jobs, including jobs 

19 that would be lost that relate directly 

20 or indirectly to coal production or pe21 troleum refining; 

22 (II) reduction in State and local 

23 tax revenues; 

24 (III) harm to small businesses; 

25 (IV) harm to consumers; 


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1 (V) reduction in— 

2 (aa) the production and use 

3 of coal; and 

4 (bb) the domestic production 

5 of transportation fuels, heating 

6 oil, and petrochemicals in the 

7 United States; and 

8 (VI) other resulting adverse eco9 nomic or energy impacts. 

10 (vi) The extent to which the direct 

11 and indirect adverse economic impacts 

12 identified under clause (v) can be miti13 gated through the creation of additional 

14 jobs and new economic growth as a result 

15 of renewable energy projects, energy effi16 ciency measures, and other such energy 

17 construction projects that are projected to 

18 be undertaken in order to meet future en19 ergy demands. 

20 (vii) The cumulative effects of Federal 

21 regulatory mandates on the ability of in22 dustries and businesses in the United 

23 States to compete with industries and busi24 nesses in other countries, with respect to 


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1 competitiveness in both domestic and for2 eign markets. 

3 (viii) The regions of the United States 

4 that are forecasted to be— 

5 (I) most affected from the direct 

6 and indirect adverse impacts from the 

7 retirement of impacted units and in8 creased retail electricity, transpor9 tation fuels, heating oil, and petro10 chemicals price, as identified under 

11 clause (v); and 

12 (II) least affected from such ad13 verse impacts due to the creation of 

14 new jobs and economic growth that 

15 are expected to result directly and in16 directly from the energy construction 

17 projects, as identified under clause 

18 (vi). 

19 (ix) The cumulative effects of the 

20 Federal regulatory mandates on the elec21 tric power sector, including— 

22 (I) adverse impacts on electric re23 liability that are expected to result 

24 from the retirement of electric gener25 ating units identified under clause (i); 


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1 (II) the geographical distribution 

2 of the projected adverse electric reli3 ability impacts identified in subclause 

4 (I), according to the regions estab5 lished by North American Electric Re6 liability Corporation; and 

7 (III) an assessment of whether 

8 current plans to expand electricity 

9 generation and transmission capabili10 ties for each particular region can be 

11 optimized to mitigate those projected 

12 adverse reliability impacts. 

13 (x) Federal, State, and local policies 

14 that have been or will be implemented to 

15 foster a transition in energy infrastructure 

16 in the United States, including those poli17 cies that promote fuel diversity, affordable 

18 and reliable electricity, and energy secu19 rity. 

20 (2) CONSULTATION WITH STATE AND LOCAL

21 GOVERNMENTS.—The Committee shall consult with 

22 representatives of State and local governments— 

23 (A) to identify potential adverse cumulative 

24 impacts of the Federal regulatory mandates 

25 that have unique or significant repercussions 


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1 for each particular region of the United States; 

2 and 

3 (B) to investigate opportunities and strate4 gies for mitigating the adverse impacts and re5 percussions identified under subparagraph (A). 

6 (3) METHODOLOGY.—The Committee shall— 

7 (A) use the best available information and 

8 peer-reviewed economic models in performing 

9 the cumulative regulatory impact assessment 

10 under this subsection; and 

11 (B) seek public comment on the cost, en12 ergy, and other modeling assumptions used in 

13 performing the assessment. 

14 (4) PUBLIC NOTICE AND COMMENT.—The Com15 mittee shall provide public notice and the oppor16 tunity for comment on a draft cumulative regulatory 

17 impact assessment to be prepared under this sub18 section. 

19 (5) REPORT TO CONGRESS AND STATES.—Not 

20 later than August 1, 2012, the Committee shall sub21 mit to Congress and the Governor of each State a 

22 detailed report of the cumulative assessment per23 formed under this subsection. 


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1 SEC. 102. ADDITIONAL PROVISIONS RELATING TO CERTAIN 

2 RULES. 

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

4 RULE.— 

5 (1) EARLIER RULES.—The rule entitled ‘‘Fed6 eral Implementation Plans: Interstate Transport of 

7 Fine Particulate Matter and Ozone and Correction 

8 of SIP Approvals’’ (76 Fed. Reg. 48208 (August 8, 

9 2011)), and any successor or substantially similar 

10 rule, shall be— 

11 (A) of no force or effect; and 

12 (B) treated as though the rule had never 

13 taken effect. 

14 (2) CONTINUED APPLICABILITY OF CLEAN AIR

15 INTERSTATE RULE.—In place of any rule described 

16 in paragraph (1), the Administrator shall continue 

17 to implement the Clean Air Interstate Rule. 

18 (3) ADDITIONAL RULEMAKINGS.— 

19 (A) ISSUANCE OF NEW RULES.—The Ad20 ministrator shall— 

21 (i) not issue any proposed or final rule 

22 under section 110(a)(2)(D)(i)(I) or section 

23 126 of the Clean Air Act (42 U.S.C. 

24 7410(a)(2)(D)(i)(I), 7426) relating to na25 tional ambient air quality standards for 

26 ozone or particulate matter (including any 


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1 modification of the Clean Air Interstate 

2 Rule) before the date that is 3 years after 

3 the date on which the Committee submits 

4 the final report under section 101(e)(5); 

5 and 

6 (ii) in issuing any rule described in 

7 clause (i)— 

8 (I) base the rule on actual mon9 itored (and not modeled) data; and 

10 (II) notwithstanding section 

11 110(a)(2)(D)(i)(I) of the Clean Air 

12 Act (42 U.S.C. 7410(a)(2)(D)(i)(I)), 

13 allow the trading of emission allow14 ances among entities covered by the 

15 rule irrespective of the States in which 

16 the entities are located. 

17 (B) IMPLEMENTATION SCHEDULE.—In 

18 promulgating any final rule described in sub19 paragraph (A)(i), the Administrator shall estab20 lish a date for State implementation of the 

21 standards established by the final rule that is 

22 not earlier than 3 years after the date of publi23 cation of the final rule. 

24 (b) STEAM GENERATING UNIT RULES.— 

25 (1) EARLIER RULES.— 


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1 (A) IN GENERAL.—The proposed rule enti2 tled ‘‘National Emission Standards for Haz3 ardous Air Pollutants From Coal- and Oil-Fired 

4 Electric Utility Steam Generating Units and 

5 Standards of Performance for Fossil-Fuel-Fired 

6 Electric Utility, Industrial-Commercial-Institu7 tional, and Small Industrial-Commercial-Insti8 tutional Steam Generating Units’’ (76 Fed. 

9 Reg. 24976 (May 3, 2011)), and any final rule 

10 that is based on that proposed rule and promul11 gated prior to the date of enactment of this 

12 Act, shall be— 

13 (i) of no force and effect; and 

14 (ii) treated as though the proposed or 

15 final rule had never been issued or promul16 gated. 

17 (B) ANALYSES.—In conducting analyses 

18 under section 101(e)(1)(B), the Committee 

19 shall analyze the rules described in subpara20 graph (A) (including any successor or substan21 tially similar rules) as if subparagraph (A) did 

22 not apply to the rules. 

23 (2) PROMULGATION OF FINAL RULES.—In 

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

25 Administrator shall promulgate— 


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1 (A) regulations establishing national emis2 sion standards for coal-and oil-fired electric 

3 utility steam generating units under section 112 

4 of the Clean Air Act (42 U.S.C. 7412) with re5 spect to each hazardous air pollutant for which 

6 the Administrator determines that regulations 

7 are appropriate and necessary pursuant to sec8 tion 112(n)(1)(A) of that Act (42 U.S.C. 

9 7412(n)(1)(A)); 

10 (B) regulations establishing standards of 

11 performance for fossil-fuel-fired electric utility, 

12 industrial-commercial-institutional, and small 

13 industrial-commercial-institutional steam gener14 ating units under section 111 of the Clean Air 

15 Act (42 U.S.C. 7411); and 

16 (C) the final regulations required by sub17 paragraphs (A) and (B)— 

18 (i) after issuing proposed regulations 

19 under those subparagraphs; 

20 (ii) after consideration of the final re21 port submitted under section 101(e)(5); 

22 and 

23 (iii) not earlier than the date that is 

24 1 year after the date on which the Com25 mittee submits that report to Congress (or 


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1 on such later date as may be determined 

2 by the Administrator). 

3 (3) COMPLIANCE PROVISIONS.— 

4 (A) ESTABLISHMENT OF COMPLIANCE

5 DATES.—In promulgating the regulations under 

6 paragraph (2), the Administrator shall— 

7 (i) establish a date for compliance 

8 with the standards and requirements under 

9 the regulations that is not earlier than 5 

10 years after the effective date of the regula11 tions; and 

12 (ii) in establishing a date for that 

13 compliance, take into consideration— 

14 (I) the costs of achieving emis15 sion reductions; 

16 (II) any non-air quality health 

17 and environmental impact and energy 

18 requirements of the standards and re19 quirements; 

20 (III) the feasibility of imple21 menting the standards and require22 ments, including the time needed— 

23 (aa) to obtain necessary per24 mit approvals; and 


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1 (bb) to procure, install, and 

2 test control equipment; 

3 (IV) the availability of equip4 ment, suppliers, and labor, given the 

5 requirements of the regulations and 

6 other proposed or finalized regula7 tions; and 

8 (V) potential net employment im9 pacts. 

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

11 regulations promulgated pursuant to paragraph 

12 (2)— 

13 (i) the date on which the Adminis14 trator proposes a regulation pursuant to 

15 paragraph (2)(A) establishing an emission 

16 standard under section 112 of the Clean 

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

18 as the date on which the Administrator 

19 first proposes such a regulation for pur20 poses of applying the definition of a new 

21 source under section 112(a)(4) of that Act 

22 (42 U.S.C. 7412(a)(4)); 

23 (ii) the date on which the Adminis24 trator proposes a regulation pursuant to 

25 paragraph (2)(B) establishing a standard 


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1 of performance under section 111 of the 

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

3 treated as the date on which the Adminis4 trator proposes such a regulation for pur5 poses of applying the definition of a new 

6 source under section 111(a)(2) of that Act 

7 (42 U.S.C. 7411(a)(2)); 

8 (iii) for purposes of any emission 

9 standard or limitation applicable to electric 

10 utility steam generating units, the term 

11 ‘‘new source’’ shall mean a stationary 

12 source for which a preconstruction permit 

13 or other preconstruction approval required 

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

15 et seq.) has been issued after the effective 

16 date of the emission standard or limitation; 

17 and 

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

19 date of issuance of a preconstruction per20 mit or other preconstruction approval is 

21 deemed to be the date on which the permit 

22 or approval is issued to the applicant irre23 spective of any administrative or judicial 

24 review occurring after that date. 


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1 (C) RULE OF CONSTRUCTION.—Nothing in 

2 this subsection restricts or otherwise affects 

3 paragraphs (3)(B) and (4) of section 112(i) of 

4 the Clean Air Act (42 U.S.C. 7412(i)). 

5 (4) OTHER PROVISIONS.— 

6 (A) ESTABLISHMENT OF STANDARDS

7 ACHIEVABLE IN PRACTICE.— 

8 (i) IN GENERAL.—The regulations 

9 promulgated pursuant to paragraph (2)(A) 

10 shall apply to section 112(d)(3) of the 

11 Clean Air Act (42 U.S.C. 7412(d)(3)) in 

12 accordance with clauses (ii) and (iii). 

13 (ii) NEW SOURCES.—With respect to 

14 new sources— 

15 (I) the Administrator shall iden16 tify the best-controlled similar source 

17 for each source category or sub18 category; and 

19 (II) the best-controlled similar 

20 source for a category or subcategory 

21 shall be the single source that is de22 termined by the Administrator to be 

23 the best controlled, in the aggregate, 

24 for all of the hazardous air pollutants 

25 for which the Administrator intends 


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1 to issue standards for the source cat2 egory or subcategory, under actual op3 erating conditions, taking into account 

4 the variability in actual source per5 formance, source design, fuels, con6 trols, ability to measure pollutant 

7 emissions, and operating conditions. 

8 (iii) EXISTING SOURCES.—With re9 spect to existing sources— 

10 (I) the Administrator shall iden11 tify 1 group of sources that con12 stitutes the best-performing 12 per13 cent of existing sources for each 

14 source category or subcategory; and 

15 (II) the group constituting the 

16 best-performing 12 percent of existing 

17 sources for a category or subcategory 

18 shall be the single group that is deter19 mined by the Administrator to be the 

20 best performing, in the aggregate, for 

21 all of the hazardous air pollutants for 

22 which the Administrator intends to 

23 issue standards for the source cat24 egory or subcategory, under actual op25 erating conditions, taking into account 


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1 the variability in actual source per2 formance, source design, fuels, con3 trols, ability to measure pollutant 

4 emissions, and operating conditions. 

5 (B) REGULATORY ALTERNATIVES.—For 

6 the regulations promulgated pursuant to para7 graph (2), from among the range of regulatory 

8 alternatives authorized under the Clean Air Act 

9 (42 U.S.C. 7401 et seq.), including work prac10 tice standards under section 112(h) of that Act 

11 (42 U.S.C. 7412(h)), the Administrator shall 

12 impose the least burdensome, consistent with 

13 the purposes of that Act and Executive Order 

14 No. 13563 (76 Fed. Reg. 3821 (January 21, 

15 2011)). 

16 SEC. 103. CONSIDERATION OF FEASIBILITY AND COST IN 

17 ESTABLISHING NATIONAL AMBIENT AIR 

18 QUALITY STANDARDS. 

19 In establishing any national primary or secondary 

20 ambient air quality standard under section 109 of the 

21 Clean Air Act (42 U.S.C. 7409), the Administrator shall 

22 take into consideration feasibility and cost. 


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1 TITLE II—REGULATORY RELIEF 

2 SEC. 201. LEGISLATIVE STAY. 

3 (a) RULES RELATING TO CEMENT MANUFACTURING, 

4 BOILERS, PROCESS HEATERS, AND SOLID WASTE INCIN5 ERATORS.— 

6 (1) ESTABLISHMENT OF STANDARDS.—In lieu 

7 of the rules specified in paragraph (2)(B), and not8 withstanding the date by which those rules would 

9 otherwise be required to be promulgated, the Admin10 istrator shall— 

11 (A) propose regulations for the Portland 

12 cement manufacturing industry and Portland 

13 cement plants, and for industrial, commercial, 

14 and institutional boilers and process heaters, 

15 and commercial and industrial solid waste in16 cinerator units that are subject to any of the 

17 rules specified in paragraph (2)(B), that— 

18 (i) establish maximum achievable con19 trol technology standards, performance 

20 standards, and other requirements under 

21 sections 112 and 129, as applicable, of the 

22 Clean Air Act (42 U.S.C. 7412, 7429); 

23 and 

24 (ii) identify nonhazardous secondary 

25 materials that, when used as fuels in comVerDate Mar 15 2010 04:29 Dec 10, 2011 Jkt 019200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S1971.IS S1971

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1 bustion units of that industry and those 

2 plants, boilers, heaters, and units, qualify 

3 as solid waste under the Solid Waste Dis4 posal Act (42 U.S.C. 6901 et seq.) for pur5 poses of determining the extent to which 

6 the combustion units are required to meet 

7 the emission standards under section 112 

8 or 129 of the Clean Air Act (42 U.S.C. 

9 7412, 7429); and 

10 (B) promulgate final versions of those reg11 ulations by not later than— 

12 (i) the date that is 15 months after 

13 the date of enactment of this Act; or 

14 (ii) such later date as may be deter15 mined by the Administrator. 

16 (2) STAY OF CERTAIN RULES.— 

17 (A) IN GENERAL.—The final rules de18 scribed in subparagraph (B) shall be— 

19 (i) of no force or effect; 

20 (ii) treated as though the rule had 

21 never taken effect; and 

22 (iii) replaced in accordance with para23 graph (1). 

24 (B) DESCRIPTION OF RULES.—The rules 

25 referred to in subparagraph (A) are— 


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1 (i) the final rule entitled ‘‘National 

2 Emission Standards for Hazardous Air 

3 Pollutants from the Portland Cement Man4 ufacturing Industry and Standards of Per5 formance for Portland Cement Plants’’ (75 

6 Fed. Reg. 54970 (September 9, 2010)); 

7 (ii) the final rule entitled ‘‘Standards 

8 of Performance for New Stationary 

9 Sources and Emission Guidelines for Ex10 isting Sources: Commercial and Industrial 

11 Solid Waste Incineration Units’’ (76 Fed. 

12 Reg. 15704 (March 21, 2011)); 

13 (iii) the final rule entitled ‘‘Identifica14 tion of Non-Hazardous Secondary Mate15 rials That Are Solid Waste’’ (76 Fed. Reg. 

16 15456 (March 21, 2011)); 

17 (iv) the final rule entitled ‘‘National 

18 Emission Standards for Hazardous Air 

19 Pollutants for Major Sources: Industrial, 

20 Commercial, and Institutional Boilers and 

21 Process Heaters’’ (76 Fed. Reg. 15608 

22 (March 21, 2011)); 

23 (v) the final rule entitled ‘‘National 

24 Emission Standards for Hazardous Air 

25 Pollutants for Area Sources: Industrial, 


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1 Commercial, and Institutional Boilers’’ (76 

2 Fed. Reg. 15554 (March 21, 2011)); 

3 (vi) the final rule entitled ‘‘Standards 

4 of Performance for New Stationary 

5 Sources and Emission Guidelines for Ex6 isting Sources: Commercial and Industrial 

7 Solid Waste Incineration Units’’ (76 Fed. 

8 Reg. 15704 (March 21, 2011)); and 

9 (vii) the final rule entitled ‘‘Identifica10 tion of Non-Hazardous Secondary Mate11 rials That Are Solid Waste’’ (76 Fed. Reg. 

12 15456 (March 21, 2011)). 

13 (b) INAPPLICABILITY OF CERTAIN PROVISIONS.— 

14 With respect to any standard required by subsection 

15 (a)(1) to be promulgated in regulations under section 112 

16 of the Clean Air Act (42 U.S.C. 7412), the provisions of 

17 subsections (g)(2) and (j) of that section shall not apply 

18 prior to the effective date of the standard specified in 

19 those regulations. 

20 SEC. 202. COMPLIANCE DATES. 

21 (a) ESTABLISHMENT OF COMPLIANCE DATES.—For 

22 each regulation promulgated pursuant to section 201, the 

23 Administrator— 

24 (1) shall establish a date for compliance with 

25 standards and requirements under the regulation 


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1 that is, notwithstanding any other provision of law, 

2 not earlier than 5 years after the effective date of 

3 the regulation; and 

4 (2) in proposing a date for that compliance, 

5 shall take into consideration— 

6 (A) the costs of achieving emission reduc7 tions; 

8 (B) any non-air quality health and environ9 mental impact and energy requirements of the 

10 standards and requirements; 

11 (C) the feasibility of implementing the 

12 standards and requirements, including the time 

13 necessary— 

14 (i) to obtain necessary permit approv15 als; and 

16 (ii) to procure, install, and test con17 trol equipment; 

18 (D) the availability of equipment, sup19 pliers, and labor, given the requirements of the 

20 regulation and other proposed or finalized regu21 lations of the Administrator; and 

22 (E) potential net employment impacts. 

23 (b) NEW SOURCES.—The date on which the Adminis24 trator proposes a regulation pursuant to section 201 es25 tablishing an emission standard under section 112 or 129 


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1 of the Clean Air Act (42 U.S.C. 7412, 7429) shall be 

2 treated as the date on which the Administrator first pro3 poses such a regulation for purposes of applying— 

4 (1) the definition of the term ‘‘new source’’ 

5 under section 112(a)(4) of that Act (42 U.S.C. 

6 7412(a)(4)); or 

7 (2) the definition of the term ‘‘new solid waste 

8 incineration unit’’ under section 129(g)(2) of that 

9 Act (42 U.S.C. 7429(g)(2)). 

10 (c) RULE OF CONSTRUCTION.—Nothing in this Act 

11 restricts or otherwise affects paragraphs (3)(B) and (4) 

12 of section 112(i) of the Clean Air Act (42 U.S.C. 7412(i)). 

13 SEC. 203. ENERGY RECOVERY AND CONSERVATION. 

14 Notwithstanding any other provision of law, and to 

15 ensure the recovery and conservation of energy consistent 

16 with the Solid Waste Disposal Act (42 U.S.C. 6901 et 

17 seq.), in promulgating regulations under section 201 ad18 dressing the subject matter of the rules specified in para19 graph (2) of each of those subsections, the Administrator 

20 shall— 

21 (1) adopt the definitions of the terms ‘‘commer22 cial and industrial solid waste incineration unit’’, 

23 ‘‘commercial and industrial waste’’, and ‘‘contained 

24 gaseous material’’ in the rule entitled ‘‘Standards 

25 for Performance of New Stationary Sources and 


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1 Emission Guidelines for Existing Sources: Commer2 cial and Industrial Solid Waste Incineration Units’’ 

3 (65 Fed. Reg. 75338 (December 1, 2000)); and 

4 (2) identify nonhazardous secondary material to 

5 be solid waste (as defined in section 1004 of the 

6 Solid Waste Disposal Act (42 U.S.C. 6903)) only 

7 if— 

8 (A) the material meets that definition of 

9 commercial and industrial waste; or 

10 (B) if the material is a gas, the material 

11 meets that definition of contained gaseous ma12 terial. 

13 SEC. 204. OTHER PROVISIONS. 

14 (a) ESTABLISHMENT OF STANDARDS ACHIEVABLE IN

15 PRACTICE.—In promulgating regulations under section 

16 201, the Administrator shall ensure, to the maximum ex17 tent practicable, that emission standards for existing and 

18 new sources established under section 112 or 129 of the 

19 Clean Air Act (42 U.S.C. 7412, 7429), as applicable, can 

20 be met under actual operating conditions consistently and 

21 concurrently with emission standards for all other air pol22 lutants covered by regulations applicable to the source cat23 egory, taking into account— 

24 (1) variability in actual source performance; 

25 (2) source design; 


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1 (3) fuels; 

2 (4) inputs; 

3 (5) controls; 

4 (6) ability to measure the pollutant emissions; 

5 and 

6 (7) operating conditions. 

7 (b) REGULATORY ALTERNATIVES.—For each regula8 tion promulgated under section 201, from among the 

9 range of regulatory alternatives authorized under the 

10 Clean Air Act (42 U.S.C. 7401 et seq.), including work 

11 practice standards under section 112(h) of that Act (42 

12 U.S.C. 7412(h)), the Administrator shall impose the least 

13 burdensome, consistent with the purposes of that Act and 

14 Executive Order 13563 (76 Fed. Reg. 3821 (January 21, 

15 2011)). 

16 TITLE III—COAL RESIDUALS 

17 REUSE AND MANAGEMENT 

18 SEC. 301. SHORT TITLE. 

19 This title may be cited as the ‘‘Coal Residuals Reuse 

20 and Management Act’’. 

21 SEC. 302. AMENDMENT TO SUBTITLE D OF THE SOLID 

22 WASTE DISPOSAL ACT. 

23 (a) IN GENERAL.—Subtitle D of the Solid Waste Dis24 posal Act (42 U.S.C. 6941 et seq.) is amended by adding 

25 at the end the following: 


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1 ‘‘SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COM2 BUSTION RESIDUALS. 

3 ‘‘(a) STATE PERMIT PROGRAMS FOR COAL COMBUS4 TION RESIDUALS.—Each State may adopt and implement 

5 a coal combustion residuals permit program. 

6 ‘‘(b) STATE ACTIONS.— 

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

8 after the date of enactment of this section (except 

9 as provided by the deadline identified under sub10 section (d)(2)(B)), the Governor of each State shall 

11 notify the Administrator, in writing, whether such 

12 State will adopt and implement a coal combustion 

13 residuals permit program. 

14 ‘‘(2) CERTIFICATION.— 

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

16 months after the date of enactment of this sec17 tion (except as provided in subsections (f)(1)(A) 

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

19 notified the Administrator that it will imple20 ment a coal combustion residuals permit pro21 gram, the head of the lead State agency respon22 sible for implementing the coal combustion re23 siduals permit program shall submit to the Ad24 ministrator a certification that such coal com25 bustion residuals permit program meets the 

26 specifications described in subsection (c)(1). 


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1 ‘‘(B) CONTENTS.—A certification sub2 mitted under this paragraph shall include— 

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

4 agency responsible for implementing the 

5 coal combustion residuals permit program, 

6 signed by the head of such agency; 

7 ‘‘(ii) identification of any other State 

8 agencies involved with the implementation 

9 of the coal combustion residuals permit 

10 program; 

11 ‘‘(iii) a narrative description that pro12 vides an explanation of how the State will 

13 ensure that the coal combustion residuals 

14 permit program meets the requirements of 

15 this section, including a description of the 

16 State’s— 

17 ‘‘(I) process to inspect or other18 wise determine compliance with such 

19 permit program; 

20 ‘‘(II) process to enforce the re21 quirements of such permit program; 

22 and 

23 ‘‘(III) public participation proc24 ess for the promulgation, amendment, 

25 or repeal of regulations for, and the 


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1 issuance of permits under, such per2 mit program; 

3 ‘‘(iv) a legal certification that the 

4 State has, at the time of certification, fully 

5 effective statutes or regulations necessary 

6 to implement a coal combustion residuals 

7 permit program that meets the specifica8 tions described in subsection (c)(1); and 

9 ‘‘(v) copies of State statutes and regu10 lations described in clause (iv). 

11 ‘‘(3) MAINTENANCE OF 4005(c) OR 3006 PRO12 GRAM.—In order to adopt or implement a coal com13 bustion residuals permit program under this section 

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

15 agency responsible for implementing a coal combus16 tion residuals permit program in a State shall main17 tain an approved program under section 4005(c) or 

18 an authorized program under section 3006. 

19 ‘‘(c) PERMIT PROGRAM SPECIFICATIONS.— 

20 ‘‘(1) MINIMUM REQUIREMENTS.—The specifica21 tions described in this subsection for a coal combus22 tion residuals permit program are as follows: 

23 ‘‘(A) The revised criteria described in 

24 paragraph (2) shall apply to a coal combustion 


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1 residuals permit program, except as provided in 

2 paragraph (3). 

3 ‘‘(B) Each structure shall be, in accord4 ance with generally accepted engineering stand5 ards for the structural integrity of such struc6 tures, designed, constructed, and maintained to 

7 provide for containment of the maximum vol8 umes of coal combustion residuals appropriate 

9 for the structure. If a structure is determined 

10 by the head of the agency responsible for imple11 menting the coal combustion residuals permit 

12 program to be deficient, the head of such agen13 cy has authority to require action to correct the 

14 deficiency according to a schedule determined 

15 by such agency. If the identified deficiency is 

16 not corrected according to such schedule, the 

17 head of such agency has authority to require 

18 that the structure close in accordance with sub19 section (h). 

20 ‘‘(C) The coal combustion residuals permit 

21 program shall apply the revised criteria promul22 gated pursuant to section 4010(c) for location, 

23 design, groundwater monitoring, corrective ac24 tion, financial assurance, closure, and post-clo25 sure described in paragraph (2) and the speciVerDate Mar 15 2010 04:29 Dec 10, 2011 Jkt 019200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\S1971.IS S1971

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1 fications described in this paragraph to surface 

2 impoundments. 

3 ‘‘(D) If a structure that is classified as 

4 posing a high hazard potential pursuant to the 

5 guidelines published by the Federal Emergency 

6 Management Agency entitled ‘Federal Guide7 lines for Dam Safety: Hazard Potential Classi8 fication System for Dams’ (FEMA Publication 

9 Number 333) is determined by the head of the 

10 agency responsible for implementing the coal 

11 combustion residuals permit program to be defi12 cient with respect to the structural integrity re13 quirement in subparagraph (B), the head of 

14 such agency has authority to require action to 

15 correct the deficiency according to a schedule 

16 determined by such agency. If the identified de17 ficiency is not corrected according to such 

18 schedule, the head of such agency has authority 

19 to require that the structure close in accordance 

20 with subsection (h). 

21 ‘‘(E) In the case of a coal combustion re22 siduals permit program implemented by a 

23 State, the State has the authority to inspect 

24 structures and implement and enforce such per25 mit program. 


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1 ‘‘(F) In the case of a coal combustion re2 siduals permit program implemented by a 

3 State, the State has the authority to address 

4 wind dispersal of dust from coal combustion re5 siduals by requiring dust control measures, as 

6 determined appropriate by the head of the lead 

7 State agency responsible for implementing the 

8 coal combustion residuals permit program. 

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

10 described in this paragraph are— 

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

12 groundwater monitoring, corrective action, clo13 sure, and post-closure, for structures, includ14 ing— 

15 ‘‘(i) for new structures, and lateral ex16 pansions of existing structures, that first 

17 receive coal combustion residuals after the 

18 date of enactment of this section, the re19 vised criteria regarding design require20 ments described in section 258.40 of title 

21 40, Code of Federal Regulations; and 

22 ‘‘(ii) for all structures that receive 

23 coal combustion residuals after the date of 

24 enactment of this section, the revised cri25 teria regarding groundwater monitoring 


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1 and corrective action requirements de2 scribed in subpart E of part 258 of title 

3 40, Code of Federal Regulations, except 

4 that, for the purposes of this paragraph, 

5 such revised criteria shall also include— 

6 ‘‘(I) for the purposes of detection 

7 monitoring, the constituents boron, 

8 chloride, conductivity, fluoride, mer9 cury, pH, sulfate, sulfide, and total 

10 dissolved solids; and 

11 ‘‘(II) for the purposes of assess12 ment monitoring, the constituents alu13 minum, boron, chloride, fluoride, iron, 

14 manganese, molybdenum, pH, sulfate, 

15 and total dissolved solids; 

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 


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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; 


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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 ‘‘(3) APPLICABILITY OF CERTAIN REQUIRE15 MENTS.—A State may determine that one or more 

16 of the requirements of the revised criteria described 

17 in paragraph (2) is not needed for the management 

18 of coal combustion residuals in that State, and may 

19 decline to apply such requirement as part of its coal 

20 combustion residuals permit program. If a State de21 clines to apply a requirement under this paragraph, 

22 the State shall include in the certification under sub23 section (b)(2) a description of such requirement and 

24 the reasons such requirement is not needed in the 

25 State. If the Administrator, taking into account only 


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1 the revised criteria that the State determines to be 

2 needed under this section, determines that a State 

3 determination under this paragraph does not accu4 rately reflect the needs for the management of coal 

5 combustion residuals in the State, the Administrator 

6 may treat such State determination as a deficiency 

7 under subsection (d). 

8 ‘‘(d) WRITTEN NOTICE AND OPPORTUNITY TO REM9 EDY.— 

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

11 provide to a State written notice and an opportunity 

12 to remedy deficiencies in accordance with paragraph 

13 (2) if at any time the State— 

14 ‘‘(A) does not satisfy the notification re15 quirement under subsection (b)(1); 

16 ‘‘(B) has not submitted a certification 

17 under subsection (b)(2); 

18 ‘‘(C) does not satisfy the maintenance re19 quirement under subsection (b)(3); or 

20 ‘‘(D) is not implementing a coal combus21 tion residuals permit program that meets the 

22 specifications described in subsection (c)(1). 

23 ‘‘(2) CONTENTS OF NOTICE; DEADLINE FOR RE24 SPONSE.—A notice provided under this subsection 

25 shall— 


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1 ‘‘(A) include findings of the Administrator 

2 detailing any applicable deficiencies in— 

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

4 notification requirement under subsection 

5 (b)(1); 

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

7 certification requirement under subsection 

8 (b)(2); 

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

10 maintenance requirement under subsection 

11 (b)(3); and 

12 ‘‘(iv) the State coal combustion re13 siduals permit program in meeting the 

14 specifications described in subsection 

15 (c)(1); and 

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

17 State, a reasonable deadline, which shall be not 

18 sooner than 6 months after the State receives 

19 the notice, by which the State shall remedy the 

20 deficiencies detailed under subparagraph (A). 

21 ‘‘(e) IMPLEMENTATION BY ADMINISTRATOR.— 

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

23 implement a coal combustion residuals permit pro24 gram for a State only in the following cir25 cumstances: 


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1 ‘‘(A) If the Governor of such State notifies 

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

3 such State will not adopt and implement such 

4 a permit program. 

5 ‘‘(B) If such State has received a notice 

6 under subsection (d) and, after any review 

7 brought by the State under section 7006, fails, 

8 by the deadline identified in such notice under 

9 subsection (d)(2)(B), to remedy the deficiencies 

10 detailed in such notice under subsection 

11 (d)(2)(A). 

12 ‘‘(C) If such State informs the Adminis13 trator, in writing, that such State will no longer 

14 implement such a permit program. 

15 ‘‘(2) REQUIREMENTS.—If the Administrator 

16 implements a coal combustion residuals permit pro17 gram for a State under paragraph (1), such permit 

18 program shall consist of the specifications described 

19 in subsection (c)(1). 

20 ‘‘(3) ENFORCEMENT.—If the Administrator im21 plements a coal combustion residuals permit pro22 gram for a State under paragraph (1), the authori23 ties referred to in section 4005(c)(2)(A) shall apply 

24 with respect to coal combustion residuals and struc25 tures and the Administrator may use such authoriVerDate Mar 15 2010 04:29 Dec 10, 2011 Jkt 019200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\S1971.IS S1971

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1 ties to inspect, gather information, and enforce the 

2 requirements of this section in the State. 

3 ‘‘(f) STATE CONTROL AFTER IMPLEMENTATION BY

4 ADMINISTRATOR.— 

5 ‘‘(1) STATE CONTROL.— 

6 ‘‘(A) NEW ADOPTION AND IMPLEMENTA7 TION BY STATE.—For a State for which the 

8 Administrator is implementing a coal combus9 tion residuals permit program under subsection 

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

11 such a permit program by— 

12 ‘‘(i) notifying the Administrator that 

13 the State will adopt and implement such a 

14 permit program; 

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

16 date of such notification, submitting to the 

17 Administrator a certification under sub18 section (b)(2); and 

19 ‘‘(iii) receiving from the Adminis20 trator— 

21 ‘‘(I) a determination that the 

22 State coal combustion residuals per23 mit program meets the specifications 

24 described in subsection (c)(1); and 


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1 ‘‘(II) a timeline for transition of 

2 control of the coal combustion residu3 als permit program. 

4 ‘‘(B) REMEDYING DEFICIENT PERMIT PRO5 GRAM.—For a State for which the Adminis6 trator is implementing a coal combustion re7 siduals permit program under subsection 

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

9 such a permit program by— 

10 ‘‘(i) remedying the deficiencies de11 tailed in the notice provided under sub12 section (d)(2)(A); and 

13 ‘‘(ii) receiving from the Adminis14 trator— 

15 ‘‘(I) a determination that the de16 ficiencies detailed in such notice have 

17 been remedied; and 

18 ‘‘(II) a timeline for transition of 

19 control of the coal combustion residu20 als permit program. 

21 ‘‘(C) RESUMPTION OF IMPLEMENTATION

22 BY STATE.—For a State for which the Adminis23 trator is implementing a coal combustion re24 siduals permit program under subsection 


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

2 such a permit program by— 

3 ‘‘(i) notifying the Administrator that 

4 the State will adopt and implement such a 

5 permit program; 

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

7 date of such notification, submitting to the 

8 Administrator a certification under sub9 section (b)(2); and 

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

12 ‘‘(I) a determination that the 

13 State coal combustion residuals per14 mit program meets the specifications 

15 described in subsection (c)(1); 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 


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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— 


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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) 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.—If it is determined, pursuant to a 

22 coal combustion residuals permit program, that a struc23 ture should close, the time period and method for the clo24 sure of such structure shall be set forth in a closure plan 

25 that establishes a deadline for completion and that takes 


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1 into account the nature and the site-specific characteris2 tics of the structure to be closed. In the case of a surface 

3 impoundment, the closure plan shall require, at a min4 imum, the removal of liquid and the stabilization of re5 maining waste, as necessary to support the final cover. 

6 ‘‘(i) AUTHORITY.— 

7 ‘‘(1) STATE AUTHORITY.—Nothing in this sec8 tion shall preclude or deny any right of any State to 

9 adopt or enforce any regulation or requirement re10 specting coal combustion residuals that is more 

11 stringent or broader in scope than a regulation or 

12 requirement under this section. 

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

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

15 subsection (e) of this section and section 6005 

16 of this title, the Administrator shall, with re17 spect to the regulation of coal combustion re18 siduals, defer to the States pursuant to this sec19 tion. 

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

21 section shall be construed to affect the author22 ity of the Administrator under section 7003 

23 with respect to coal combustion residuals. 

24 ‘‘(C) TECHNICAL AND ENFORCEMENT AS25 SISTANCE ONLY UPON REQUEST.—Upon reVerDate Mar 15 2010 04:29 Dec 10, 2011 Jkt 019200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\S1971.IS S1971

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1 quest from the head of a lead State agency that 

2 is implementing a coal combustion residuals 

3 permit program, the Administrator may provide 

4 to such State agency only the technical or en5 forcement assistance requested. 

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

7 shall be construed to affect the authority of a person 

8 to commence a civil action in accordance with sec9 tion 7002. 

10 ‘‘(j) MINE RECLAMATION ACTIVITIES.—A coal com11 bustion residuals permit program implemented under sub12 section (e) by the Administrator shall not apply to the uti13 lization, placement, and storage of coal combustion residu14 als at surface mining and reclamation operations. 

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

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

17 term ‘coal combustion residuals’ means— 

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

19 3001(b)(3)(A)(i), including recoverable mate20 rials from such wastes; 

21 ‘‘(B) coal combustion wastes that are co22 managed with wastes produced in conjunction 

23 with the combustion of coal, provided that such 

24 wastes are not segregated and disposed of sepa25 rately from the coal combustion wastes and 


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1 comprise a relatively small proportion of the 

2 total wastes being disposed in the structure; 

3 ‘‘(C) fluidized bed combustion wastes; 

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

5 with non-hazardous secondary materials pro6 vided that coal makes up at least 50 percent of 

7 the total fuel burned; and 

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

9 with materials described in subparagraph (A) 

10 that are recovered from monofills. 

11 ‘‘(2) COAL COMBUSTION RESIDUALS PERMIT

12 PROGRAM.—The term ‘coal combustion residuals 

13 permit program’ means a permit program or other 

14 system of prior approval and conditions that is 

15 adopted by or for a State for the management and 

16 disposal of coal combustion residuals to the extent 

17 such activities occur in structures in such State. 

18 ‘‘(3) STRUCTURE.—The term ‘structure’ means 

19 a landfill, surface impoundment, or other land-based 

20 unit which may receive coal combustion residuals. 

21 ‘‘(4) REVISED CRITERIA.—The term ‘revised 

22 criteria’ means the criteria promulgated for munic23 ipal solid waste landfill units under section 4004(a) 

24 and under section 1008(a)(3), as revised under sec25 tion 4010(c).’’. 


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1 (b) CONFORMING AMENDMENT.—The table of con2 tents contained in section 1001 of the Solid Waste Dis3 posal Act is amended by inserting after the item relating 

4 to section 4010 the following: 

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

5 SEC. 303. 2000 REGULATORY DETERMINATION. 

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

7 title, shall be construed to alter in any manner the Envi8 ronmental Protection Agency’s regulatory determination 

9 entitled ‘‘Notice of Regulatory Determination on Wastes 

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

11 Fed. Reg. 32214 (May 22, 2000), that the fossil fuel com12 bustion wastes addressed in that determination do not 

13 warrant regulation under subtitle C of the Solid Waste 

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

15 SEC. 304. EFFECT OF TITLE. 

16 This title and the amendments made by this title— 

17 (1) supersede any regulations promulgated or 

18 being developed as of the date of enactment of this 

19 Act relating to coal combustion residuals; and 

20 (2) specifically exempt coal combustion residu21 als from regulation under subtitle C of the Solid 

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


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1 TITLE IV—THERMAL 

2 DISCHARGES 

3 SEC. 401. SHORT TITLE. 

4 This title may be cited as the ‘‘Environmental Impact 

5 of Thermal Discharges Act of 2011’’. 

6 SEC. 402. THERMAL DISCHARGE. 

7 Section 316 of the Federal Water Pollution Control 

8 Act (33 U.S.C. 1326) is amended by striking subsection 

9 (b) and inserting the following: 

10 ‘‘(b) COOLING WATER INTAKE STRUCTURES.— 

11 ‘‘(1) DEFINITION OF STATE.—In this sub12 section, the term ‘State’ means a State authorized to 

13 administer a permit program under section 402. 

14 ‘‘(2) STANDARDS.— 

15 ‘‘(A) COOLING WATER INTAKE STRUC16 TURES CONSTRUCTED AFTER JANUARY 17, 

17 2002.—For any cooling water intake structure 

18 that commences construction after January 17, 

19 2002, any standard established under section 

20 306 and applicable to a point source shall re21 quire that the location, design, construction, 

22 and capacity of the cooling water intake struc23 ture reflect the best technology available for re24 ducing adverse environmental impact. 


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1 ‘‘(B) COOLING WATER INTAKE STRUC2 TURES CONSTRUCTED ON OR BEFORE JANUARY

3 17, 2002.—For any cooling water intake struc4 ture that commenced construction on or before 

5 January 17, 2002, any standard established 

6 under section 301 shall require that the loca7 tion, design, construction, and capacity of the 

8 cooling water intake structure reflect the best 

9 technology available for reducing adverse envi10 ronmental impact. 

11 ‘‘(3) SITE-SPECIFIC ADVERSE ENVIRONMENTAL

12 IMPACT DETERMINATION.— 

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

14 subparagraph (C), the Administrator or State, 

15 if applicable, shall determine whether the cool16 ing water intake structure described in para17 graph (2)(B) creates an adverse environmental 

18 impact at the site in which the cooling water in19 take structure is located. 

20 ‘‘(B) SHELLFISH, FISH, OR WILDLIFE

21 MORTALITY.— 

22 ‘‘(i) IN GENERAL.—In making the de23 termination under subparagraph (A), shell24 fish, fish, or wildlife mortality shall not be 


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1 considered an adverse environmental im2 pact unless— 

3 ‘‘(I) a demonstrable, quantifiable, 

4 and continuous decline in any shell5 fish, fish, or wildlife population occurs 

6 in or on the body of water on which 

7 the cooling water intake structure is 

8 located; and 

9 ‘‘(II) the Administrator or State, 

10 as applicable, determines that the de11 cline is specifically attributable to that 

12 cooling water intake structure. 

13 ‘‘(ii) PRESUMPTION; CLEAR AND CON14 VINCING EVIDENCE.—In making the deter15 mination under clause (i)(II), the Adminis16 trator or State, as applicable, may presume 

17 that the cooling water intake structure is 

18 not causing an adverse environmental im19 pact unless there is clear and convincing 

20 evidence to the contrary. 

21 ‘‘(C) CERTAIN CATEGORIES OR CLASSES

22 OF COOLING WATER INTAKE STRUCTURES.— 

23 The Administrator or State, as applicable, shall 

24 not be required to make the determination 

25 under subparagraph (A) for any category or 


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1 class of cooling water intake structure that the 

2 Administrator or State, as applicable, deter3 mines, because of the location, design, capacity, 

4 or other factors, is unlikely to cause an adverse 

5 environmental impact. 

6 ‘‘(4) SITE-SPECIFIC SELECTION OF BEST TECH7 NOLOGY AVAILABLE.—For any cooling water intake 

8 structure described in paragraph (2)(A), or if the 

9 Administrator or State, as applicable, makes the de10 termination described in paragraph (3)(A), the Ad11 ministrator or the State, as applicable, shall select 

12 the best technology available for the cooling water 

13 intake structure using a site-specific cost-benefit 

14 analysis that ensures the benefits of the cooling 

15 water intake structure technology selected justify the 

16 costs, taking into consideration— 

17 ‘‘(A) any costs associated with any feasible 

18 alternative cooling water intake structure tech19 nology; 

20 ‘‘(B) any likely environmental and eco21 nomic benefits; 

22 ‘‘(C) any nonwater quality environmental 

23 or water consumption impacts; 

24 ‘‘(D) any energy requirements; 


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1 ‘‘(E) the remaining useful life of equip2 ment and facilities involved; 

3 ‘‘(F) the process employed; 

4 ‘‘(G) the engineering aspects of the appli5 cation of various types of control techniques; 

6 ‘‘(H) electricity reliability impacts; 

7 ‘‘(I) land availability; 

8 ‘‘(J) lost revenues; and 

9 ‘‘(K) other factors that the Administrator 

10 or State, as applicable, determines to be appro11 priate. 

12 ‘‘(5) ALTERNATIVE TECHNOLOGIES.—Any 

13 owner or operator of any cooling water intake struc14 ture described in paragraph (2) may use restoration 

15 measures, including restocking fish and shellfish, im16 proving the surrounding habitat, and alternative 

17 techniques in lieu of modifying the cooling water in18 take structure if the Administrator or State, as ap19 plicable, determines that the restoration measures 

20 achieve substantially the same environmental bene21 fits as the best technology available selected under 

22 paragraph (4). 

23 ‘‘(6) CREDIT FOR PREVIOUSLY INSTALLED

24 FISH-PROTECTION TECHNOLOGY.—The Adminis25 trator or State, as applicable, shall provide credit for 


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1 any impingement or entrainment reductions result2 ing from a previously installed fish-protection tech3 nology, as the Administrator or State determines to 

4 be appropriate.’’. 

5 SEC. 403. REGULATIONS. 

6 Effective beginning January 1, 2011— 

7 (1) the Administrator shall not promulgate any 

8 regulation regarding cooling water intake structures 

9 that is inconsistent with this title or an amendment 

10 made by this title; and 

11 (2) any regulation described in paragraph (1) 

12 that is promulgated on or after January 1, 2011, 

13 and prior to the date of enactment of this Act shall 

14 have no force or effect. 

Æ 


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