I 

111TH CONGRESS 

2D SESSION H. R. 6113 

To protect electricity reliability by prohibiting the use of funds for carrying 

out certain policies and procedures that adversely affect domestic coal 

mining operations, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 14, 2010 

Mr. ROGERS of Kentucky (for himself, Mr. RAHALL, Mr. BOUCHER, Mr. 

DAVIS of Kentucky, Mr. YOUNG of Alaska, Mr. DUNCAN, Mr. SPACE, Mr. 

ADERHOLT, Mr. GUTHRIE, Mrs. CAPITO, Mr. WILSON of Ohio, and Mr. 

WHITFIELD) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure, and in addition to the Committees on Energy and Commerce and Natural Resources, for a period 

to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee 

concerned 

A BILL 

To protect electricity reliability by prohibiting the use of 

funds for carrying out certain policies and procedures 

that adversely affect domestic coal mining operations, 

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. 

4 This Act may be cited as the ‘‘Electricity Reliability 

5 Protection Act of 2010’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) The United States consumes over 1 billion 

4 tons of coal annually. Most of this coal is used to 

5 meet nearly one-half of the Nation’s electricity 

6 needs. The remaining amount of coal is used to 

7 produce, among other things, steel, plastics, syn8 thetic fibers, medicines, and coke. 

9 (2) On June 11, 2009, the Environmental Pro10 tection Agency and the Department of the Army 

11 issued a Memorandum on ‘‘Enhanced Surface Coal 

12 Mining Pending Permit Coordination Procedures’’. 

13 (3) As of March 2010, under these new proce14 dures, the Environmental Protection Agency has un15 lawfully delayed Clean Water Act permits for 190 

16 coal mining operations. 

17 (4) These 190 coal mining operations are ex18 pected to produce over 2 billion tons of coal 

19 (throughout the life of operations) and support 

20 roughly 17,806 new and existing jobs as well as 81 

21 small businesses. 

22 (5) Due to the actions of the Environmental 

23 Protection Agency, roughly 1 in every 4 coal mining 

24 jobs in the Appalachian region is at risk of elimi25 nation, 81 small businesses will lose significant in26 come and will be at risk of bankruptcy, and more 


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1 than 2 years of the Nation’s coal supply is in jeop2 ardy. 

3 (6) By preventing the production and use of a 

4 2-year supply of coal, the Environmental Protection 

5 Agency is putting electricity reliability for consumers 

6 at risk. 

7 (7) On April 1, 2010, Peter S. Silva, Assistant 

8 Administrator for the Office of Water, and Cynthia 

9 Giles, Assistant Administrator for the Office of En10 forcement and Compliance Assistance, took further 

11 action to threaten jobs, harm small businesses, re12 duce electricity reliability, harm national security, 

13 and drive up energy prices by releasing detailed 

14 guidance on ‘‘Improving EPA Review of Appa15 lachian Surface Coal Mining Operations under the 

16 Clean Water Act, National Environmental Policy 

17 Act, and the Environmental Justice Executive 

18 Order’’. 

19 (8) This guidance goes far beyond clarification 

20 and coordination and arrogates to the Environ21 mental Protection Agency wholly new powers to su22 persede the authority of States under the Clean 

23 Water Act and the Surface Mining Control and Rec24 lamation Act of 1977 (SMCRA), the authority of the 

25 Corps of Engineers (Corps) under the Clean Water 


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1 Act, the authority of the Office of Surface Mining 

2 Reclamation and Enforcement of the Department of 

3 the Interior (OSM) under SMCRA, and the author4 ity of both the Corps and OSM under the National 

5 Environmental Policy Act of 1969. 

6 (9) The June 2009 memorandum and the April 

7 2010 guidance meet the definition of a rulemaking 

8 under the Administrative Procedure Act because 

9 each is an ‘‘agency statement of general or par10 ticular applicability and future effect designed to im11 plement, interpret, or prescribe law or policy’’ under 

12 section 551(4) of title 5, United States Code. 

13 (10) The Environmental Protection Agency has 

14 not gone through notice and comment rulemaking to 

15 prescribe the new policies set forth in the June 2009 

16 memorandum or the April 2010 guidance in viola17 tion of the Administrative Procedure Act. 

18 (11) Any use of the June 2009 memorandum 

19 or the April 2010 guidance to review, delay, and 

20 veto Clean Water Act permits is unlawful. 

21 (12) The actions of the Environmental Protec22 tion Agency could cause drastic increases in the Na23 tion’s energy prices due to decreases in coal supply. 

24 (13) By preventing the United States from re25 ducing our reliance on foreign sources of energy and 


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1 by reducing our ability to produce energy domesti2 cally, the Environmental Protection Agency is harm3 ing national security. 

4 SEC. 3. LIMITATION ON USE OF FUNDS. 

5 None of the funds made available to the Environ6 mental Protection Agency, the Corps of Engineers, or the 

7 Office of Surface Mining Reclamation and Enforcement 

8 for fiscal year 2010 or any fiscal year thereafter may be 

9 used to carry out, implement, administer, or enforce any 

10 policy or procedure set forth in— 

11 (1) the memorandum issued by the Environ12 mental Protection Agency and Department of the 

13 Army entitled ‘‘Enhanced Surface Coal Mining 

14 Pending Permit Coordination Procedures’’, dated 

15 June 11, 2009, or 

16 (2) the guidance issued by the Environmental 

17 Protection Agency entitled ‘‘Improving EPA Review 

18 of Appalachian Surface Coal Mining Operations 

19 under the Clean Water Act, National Environmental 

20 Policy Act, and the Environmental Justice Executive 

21 Order’’, dated April 1, 2010, 

22 until the Environmental Protection Agency, the Corps of 

23 Engineers, or the Office of Surface Mining Reclamation 

24 and Enforcement of the Department of the Interior, as 

25 appropriate under their existing statutory authorities, proVerDate Mar 15 2010 03:47 Sep 15, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6113.IH H6113

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1 mulgates regulations for the implementation of such policy 

2 or procedure after providing notice and an opportunity for 

3 comment in accordance with subchapter II of chapter 5 

4 of title 5, United States Code, popularly known as the Ad5 ministrative Procedure Act. 

Æ 


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