H.R. 3409: Stop the War on Coal Act

H.R. 3409

Stop the War on Coal Act

Sponsor
Sen. Bernard Sanders

Date
September 20, 2012 (112th Congress, 2nd Session)

Staff Contact
Sarah Makin

Floor Situation

On Thursday, September 20, 2012, the House is scheduled to begin consideration of H.R. 3409, the Coal Miner Employment and Domestic Energy Infrastructure, subject to a rule.  The bill was introduced on November 14, 2011, by Rep. Bill Johnson (R-OH) and referred to the House Committee on Natural Resources. On February 29, 2012, the House Committee on Natural Resources held a markup of H.R. 3409 and ordered the bill to be reported by a vote of 26-16.  The bill being considered is a compilation of four bill that have been passed by the House and one bill that has been approved by the House Committee on Natural Resources.  The five bills included are the following:

  • The Coal Miner Employment and Domestic Energy Infrastructure Protection Act (H.R. 3409) – Approved by the Committee on Natural Resources by a vote 26-16.   
  • Energy Tax Prevention Act of 2011 (H.R. 910) – Approved by the House on April 7, 2011, by a vote of 255-172.  
  • Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011 (H.R. 2401) – Approved by the House on September 23, 2011, by a vote of 249-169.
  • Coal Residuals Reuse and Management Act (H.R. 2273) – Approved by the House on October 14, 2011, by a vote of 267-144
  • Clean Water Cooperative Federalism Act of 2011 (H.R. 2018) – Approved by the House on July 13, 2011, by a vote of 239-184.   

The rule for consideration of the bill provides for one hour of general debate equally divided and controlled by the chair and ranking minority member of the Committees on Natural Resources, Energy and Commerce, and Transportation and Infrastructure.  The rule would also provide for 13 amendments, which are summarized below, and a motion to recommit.

Bill Summary

Title I (H.R. 3409, The Coal Miner Employment and Domestic Energy Infrastructure Protection Act)

The bill would limit the authority of the Secretary of the Interior to issue regulations, proposed or final, under the Surface Mining Control and Reclamation Act of 1977 until December 31, 2013 if the regulation would adversely impact employment in coal mines; reduce revenue to federal, state, Tribal or local government; reduce the amount of coal available for domestic use or export; designate areas unsuitable for coal mining; or expose the American taxpayer to takings liability for privately owned coal that can’t be mined due to onerous regulation.

Title II (H.R. 910, The Energy Tax Prevention Act of 2011)

The bill would amend the Clear Air Act by prohibiting :“(4) With respect to standards for emissions of greenhouse gases (as defined in section 330) for model year 2017 or any subsequent model year new motor vehicles and new motor vehicle engines—“(A) the Administrator may not waive application of subsection (a); and“(B) no waiver granted prior to the date of enactment of this paragraph may be construed to waive the application of subsection (a).”.

The bill would prohibit the Environmental Protection Agency (EPA) from regulating greenhouse gases (GHG) to address climate change under the Clean Air Act.   More specifically, the bill would prohibit the EPA from regulating: water vapor; carbon dioxide; methane; nitrous oxide; sulfur hexafluoride; hydrofluorocarbons; perfluorocarbons; and any other substance subject to regulation, action or consideration under the Clean Air Act to address climate change.  The bill would also repeal a number of EPA rules and actions, including the mandatory reporting of greenhouse gases. 

According to the bill, the term “air pollutant” would not include a GHG.  However, the bill would allow the term “air pollutant” to include a GHG for the purpose of addressing other concerns. 

The bill would include the following exemptions from the prohibition:

  1. Implementation and enforcement of the “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards” rule, and finalization, implementation, enforcement, and revision of the proposed rule, “Greenhouse Gas Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles”;
  2. Implementation and enforcement of the renewable fuel program;
  3. Statutorily authorized federal research, development, and demonstration programs addressing climate change;
  4. Implementation and enforcement of stratospheric ozone protection to the extent that such implementation or enforcement only involves one or more class I or II substances; and
  5. Implementation and enforcement of requirements for monitoring and reporting of carbon dioxide emissions. 

H.R. 3409 would provide that none of aforementioned exemptions would cause a GHG to be subject to regulations relating to the prevention of significant deterioration of air quality, or would be considered an air pollutant for purposes of air pollution prevention and control permits.  

The bill would not limit or affect the authority of a state to adopt, amend, enforce, or repeal state laws and regulations pertaining to the emission of a GHG.  State provisions are defined as: a state implementation plan that authorizes or requires a limitation on, or imposes a permit requirement for, the emission of a GHG to address climate change; or an operating permit program under Title V, or a permit issued pursuant to Title V, that authorizes or requires a limitation on the emission of a GHG to address climate change.  State actions would not be affected so long as the provisions are not federally enforceable or part of federal law.  The bill would prohibit the EPA Administrator from approving or making federally enforceable any such state law. 

Title III (H.R. 2401, The Transparency in Regulatory Analysis of Impacts on Our Nation

Act of 2011)

The bill would require analyses of the cumulative and incremental impacts of certain rules and actions of the Environmental Protection Agency (EPA).  Specifically, the bill would require the President to establish the Committee for the Cumulative Analysis of Regulations that Impact Energy and Manufacturing in the United States.  The Committee would be charged with analyzing and reporting on the cumulative and incremental impacts of covered rules and actions of the EPA concerning air, waste, water, and climate change.

The bill would require that members of the Committee be composed of the following officials (or their designees):

  • Secretary of Agriculture, acting through the Chief Economist;
  • Secretary of Commerce, acting through the Chief Economist and the Under Secretary for International Trade;
  • Secretary of Labor, acting through the Commissioner of the Bureau of Labor Statistics;
  • Secretary of Energy, acting through the Administrator of the Energy Information Administration;
  • Secretary of the Treasury, acting through the Deputy Assistant Secretary for Environment and Energy of the Department of the Treasury;
  • Administrator of the Environmental Protection Agency;
  • Chairman of the Council of Economic Advisors;
  • Chairman of the Federal Energy Regulatory Commission;
  • Administrator of the Office of Information and Regulatory Affairs;
  • Chief Counsel for Advocacy of the Small Business Administration; and
  • Chairman of the United States International Trade Commission, acting through the Office of Economics.

The bill would require that the Secretary of Commerce serve as Chair of the Committee and the Committee would terminate 60 days after submitting its final report. 

The bill would also require the Committee to conduct analyses, for each of the calendar years 2016, 2020, and 2030, of the following:

  • The cumulative impact of covered rules that are promulgated as final regulations on or before January 1, 2012, in combination with covered actions;
  • The cumulative impact of all covered rules (including covered rules that have not been promulgated as final regulations on or before January 1, 2012), in combination with covered actions;
  • The incremental impact of each covered rule not promulgated as a final regulation on or before January 1, 2012, relative to an analytic baseline representing the results of the analysis.

The bill would require that each analysis include the following information:

  • Estimates of the impacts of the covered rules and covered actions with regard to the global economic competitiveness of the United States, particularly with respect to energy intensive and trade sensitive industries; other cumulative costs and cumulative benefits, including evaluation through a general equilibrium model approach; any resulting change in national, state, and regional electricity prices; any resulting change in national, state, and regional fuel prices; the impact on national, state, and regional employment during the five-year period beginning on the date of enactment of this Act, and also in the long term, including secondary impacts associated with increased energy prices and facility closures; and the reliability and adequacy of bulk power supply in the United States;
  • Discussion of key uncertainties and assumptions associated with each estimate;
  • A sensitivity analysis;
  • Discussion, and where feasible an assessment, of the cumulative impact of the covered rules and covered actions on consumers; small businesses; regional economies; state, local, and tribal governments; local and industry-specific labor markets; and agriculture, as well as key uncertainties associated with each topic.

The bill would require the Committee to use the best data available to the public or supplied to the Committee by its members, including the most recent data showing air quality, facility emissions, and installed controls.

H.R. 3409 would include among "covered rules" specified national standards for air quality and pollutants, hazardous and solid waste, and other rules promulgated under specified provisions of the Clean Air Act (CAA) on or after January 1, 2009.  The bill would define "covered action" as any action on or after such date by the EPA, a state, a local government, or a permitting agency as a result of the application of specified CAA provisions with respect to an air pollutant that is identified as a greenhouse gas.

The bill would require that the Committee make public and submit to the Committee on Energy and Commerce a preliminary report containing the results of the analyses. 

H.R. 3409 would delay for six months the implementation of the EPA's controversial Utility MACT rule and new transport rule to ensure that the economic impacts of these two major rules in conjunction with other EPA rules are fully understood. 

Title IV (H.R. 2273, The Coal Residuals Reuse and Management Act of 2011)

Title IV of H.R. 3409, is based on the same underlying principles as H.R. 2273 which passed the House 267-144 on October 14, 2011 and would utilize the framework and requirements of an existing federal regulatory program developed by the Environmental Protection Agency (EPA) under the Solid Waste Disposal Act (RCRA) as the basis for enforceable minimum federal standards for the regulation of a waste stream known as coal ash.  The bill would include enforceable federal standards, but would leave regulation and enforcement to the states and would allow all states to be more stringent than the federal minimum requirements in the bill.

The bill would give states with existing RCRA solid or hazardous waste permit programs the option to also adopt and implement a coal combustion residuals permit program because they have already demonstrated an ability to regulate such wastes.  The bill would require that a state intending to implement a permit program must notify the EPA of its intent and must legally certify that its permit program meets the minimum specifications set out in the legislation. 

The bill includes several changes to H.R. 2273, including the following:

  1. Allows States to update their certification to reflect changes to permit program and requires States to maintain a permit program consistent with the certification.
  2. Allows States to consider the hydrogeologic characteristics of the structure and surrounding land and the impact on the water table when making citing determinations regarding location of a structure within two feet of the natural water table.
  3. Expressly requires that a State permit program issue permits and defines “permit.”
  4. Requires States to notify owners/operators of the groundwater monitoring requirements and requires groundwater monitoring at all structures within one year of a State certifying its permit program to EPA.
  5. Provides authority to the agency implementing permit program to obtain necessary information, conduct testing/monitoring, and enter premise to inspect a structure or review records.
  6. Amends the “revised criteria” in subsection (c)(2) by: exempting surface impoundments from the leachate collection requirements described in 40 CFR 258.40(a)(2); adds revised criteria for closure and post-closure; and by requiring that the specified coal ash constituents be considered for assessment monitoring and for establishing a groundwater protection standard and assessment of corrective measures.
  7. Provides that surface impoundments first discovered to be leaking after enactment meet groundwater protection standards within ten years or stop receiving coal ash and close.   Requires unlined surface impoundments in corrective action at enactment to meet groundwater protection standards within eight years of enactment or stop receiving coal ash and close. Allows States, unless there has been contamination of public or private drinking water systems, grant an extension of the deadline in both cases based on: (A) the effectiveness of interim measures; (B) the level of progress demonstrated in meeting the groundwater protection standard; (C) the potential for other adverse human health or environmental exposures; and (D) the lack of available alternative management capacity for the coal combustion residuals.  
  8. Applies the minimum permit program specifications directly to owners and operators.
  9. Requires permit documents and groundwater monitoring data be made available to the public.
  10. Clarifies the engineering standards for the assessment of structural stability and requires an annual inspection and certification of the design, construction and maintenance by an independent registered professional engineer.
  11. Tightens fugitive dust requirements by requiring cover or wet placement (but allows owners/operators to suggest alternative method of dust control).
  12. Adds public notice and comment requirements.
  13. Addresses regulation of coal ash on tribal lands.
  14. Expressly bars EPA from exercising concurrent enforcement authority if a State is implementing a permit program and from finalizing its June 2010 Proposed Rule on coal ash.
  15. Deletes a provision allowing states to waive certain permit program requirements.
  16. Requires the States to make information regarding implementation of the permit program available to EPA.   EPA may only request information it does not already possess.
  17. Clarifies that a State may seek judicial review under the Solid Waste Disposal Act Section 7006 if EPA finds the State permit program to be deficient. 
  18. Adds a savings clause regarding technical assistance.
  19. Adds a savings clause regarding obligations of an owner or operator under Section 202(c) of the Federal Power Act.

Like H.R. 2273, Title IV of H.R. 3409 would establish minimum specifications for a permit program using the revised criteria promulgated by the EPA for the municipal solid waste program.  The bill would require that if a state decides not to adopt and implement a permit program, or fails to implement a program, the EPA would begin a process that involves notifying the state of any alleged deficiencies in the program and allowing the state to refute the allegation or cure any deficiencies.  The bill would require that if a state fails to remedy any deficiencies, the EPA, using the minimum specifications for a permit program, would be authorized to assume control of a permit program in that state. 

The bill would also provide a mechanism for a state that has ceded control of its permit program to the EPA to take back the permit program by demonstrating that its program complies with the legislation’s minimum specifications.  The bill would ensure the operation of only one permitting program (either by the EPA or the state); thereby making it impossible for there to be simultaneous regulatory programs for managing coal combustion residuals in a state.   

Title V (H.R. 2018, the Clean Water Cooperative Federalism Act of 2011)

The bill would amend the Clean Water Act (CWA) by restricting the Environmental Protection Agency’s (EPA) ability to issue a revised or new water quality standard for a pollutant whenever a state has adopted and EPA already has approved a water quality standard for that pollutant, unless the state concurs with the EPA Administrator’s determination that the revised or new standard is necessary to meet the requirements of the CWA.  The bill would prevent unilateral actions by the EPA that second-guess the decisions of the state regulatory agency.

The bill would amend the CWA to prohibit the EPA from superseding a water quality certification granted by a state under the CWA, that a discharge will comply with the applicable water quality requirements of the CWA.  

H.R. 3409 would amend the CWA to prohibit the EPA from withdrawing approval of a state water quality permitting program under CWA (National Pollutant Discharge Elimination System (NPDES) Permits), or from limiting federal financial assistance for the state water quality permitting program, on the basis that the EPA disagrees with the state regarding (a) a water quality standard that a state has adopted and the EPA has approved under the CWA, or (b) the implementation of any federal guidance that directs a re-interpretation of the state’s approved water quality standards.

The bill would amend the CWA to prohibit the EPA from objecting to a state's issuance of an NPDES permit on the basis of (a) EPA's differing interpretation of an approved state water quality standard, or (b) the implementation of any federal guidance that directs a re-interpretation of the state's approved water quality standards.

H.R. 3409 would amend the CWA to allow a state to assume and administer only parts of the section 404 permit program.  Currently, only two states (New Jersey and Michigan) have assumed responsibility for section 404 permitting.  Other states support a simplified and more flexible process for state assumption of the section 404 permit program, including partial assumption of program responsibilities, in order to improve effectiveness and provide more efficient and effective permitting for applicants.  H.R. 3409 would make it easier for states to assume and administer only parts of the section 404 permit program.

The bill would amend the CWA to shorten the deadline for the Fish and Wildlife Service to submit comments to the Army Corps of Engineers (Corps) on a proposed section 404 permit from 90 days to 30 days (or 60 days if additional time is requested).  The bill would also clarify that the deadline for the EPA and other agencies to submit comments to the Corps on a proposed section 404 permit is 30 days (or 60 days if additional time is requested) after the date of receipt of the application.

Finally, H.R. 3409 would provide that amendments to the CWA will only apply to actions taken on or after the date of enactment of H.R. 3409, including actions that are pending, revised, or new standards that are being promulgated as of such date of enactment.  The bill would clarify that H.R. 3409 would apply to both pending and future permitting and standards actions.

Background

According to the Committee on Natural Resources, the Coal Miner Employment and Domestic Energy Infrastructure Protection Act, would protect American jobs and support U.S. energy production by prohibiting the Secretary of the Interior from issuing new rules or regulations that will adversely impact mining jobs and our economy.

The Obama Administration’s Office of Surface Mining Reclamation and Enforcement (OSM) is conducting a sweeping rewrite of a coal mining regulation (the 2008 Stream Buffer Zone Rule) that will cost jobs and decrease American energy production.

The Administration discarded a rule that underwent five years of environmental review and public comment; entered into a court agreement with environmental groups to rewrite the rule in an unachievable time frame; spent millions of taxpayer dollars and hired new contractors to do the rewrite; fired the contractors when the news media revealed that their analysis showed the revision would cost 7,000 jobs and economic harm in 22 states; attempted to manipulate data to conceal the true economic impact; and is now hiding its final rule from the public until after the election.  (For more details on this investigation, see the Committee on Natural Resources House Report 112-670.)

The Natural Resources Committee has been conducting a more than yearlong investigation into why this rewrite was initiated, whether proper procedures are being followed and the economic costs of the proposed regulation.  The Department has failed to meet a single deadline for document requests and is now flouting two Congressional subpoenas for further information.

The Administration should stop all work on this devastating regulation until they are willing to comply, in full, with the outstanding subpoenas and allow Congress to conduct meaningful oversight into their questionable process.

Specifically, the bill would prohibit the Secretary of the Interior from issuing regulations under the Surface Mining Control and Reclamation Act that will:

  • Adversely impact U.S. coal mining employment;
  • Cause a reduction in coal revenue to governments through regulation of coal mining;
  • Reduce the amount of coal available for domestic consumption or export;
  • Designate any area as unsuitable for surface coal mining and reclamation operations; and
  • Expose the U.S. to liability for taking the value of privately owned coal through regulation.

Cost

According to the Congressional Budget Office (CBO), CBO estimates that implementing the bill would reduce future discretionary spending by $245 million over the 2013-2017 period, assuming that appropriations in those years were reduced accordingly. Such reductions would primarily stem from prohibiting the Environmental Protection Agency (EPA) from regulating greenhouse gases.

H.R. 3409 contains intergovernmental mandates as defined in the Unfunded Mandates Reform Act (UMRA) by expanding an existing preemption of state laws that regulate greenhouse gases from motor vehicles and requiring states to notify EPA whether they will adopt and implement a permit program for coal combustion residuals (CCR).  Although the preemption would limit the application of state law, CBO estimates that it would impose no duty on state governments that would result in additional spending.

CBO estimates that the cost, if any, of the notification requirement would be small.  If states chose to adopt and implement a CCR program, any costs they incurred would result from participation in a voluntary federal program and not from the requirements of an intergovernmental mandate.  To the extent that the bill would establish or accelerate a program to regulate CCR, the bill also would impose an intergovernmental and private-sector mandate on coal-fired power plants. (EPA is considering a program with more stringent regulations than those contained in this bill, but the timing for implementing those regulations is uncertain.)  Based on information from EPA, a small number of public entities would be required to comply with the bill's requirements, and CBO estimates that the cost for those entities to comply would fall below UMRA' s annual threshold for intergovernmental mandates ($73 million in 2012, adjusted annually for inflation). Because of uncertainty about the number of private utilities that would need to take corrective action, CBO cannot determine whether the cost of the mandate would exceed the annual threshold for private sector mandates ($146 million in 2012, adjusted annually for inflation).

Amendments

No. 1—Rep. Markey (D-MA):  The amendment would allow the Secretary of Interior to promulgate rules under the Surface Mining Control and Reclamation Act, if the “rule would reduce the prevalence of pulmonary diseases, lung cancer, cardiovascular disease or reduce the prevalence of birth defects or reproductive problems in pregnant women or children.”

No. 2—Rep. Buschon (R-IN):  The amendment would require that the Secretary, or any other Federal official proposing a rule under this Act, publish with each rule proposed the scientific study that the Secretary, or other official, relied on in developing the rule.  This amendment will ensure that rules being issued are based on scientific study.

No. 3—Rep. Waxman (D-CA):  The amendment would strike the language that would repeal EPA’s scientific finding that carbon pollution endangers the public health and welfare.

No. 4—Rep. Kelly (R-PA):  The amendment would require the Secretary of Transportation to submit a report to Congress estimating the number of jobs, the fatalities and injuries, and the cost to the economy caused by the "2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards" rule.  The amendment would also require that the Secretary be prohibited from consulting with the EPA or the California Air Resources Board to complete the report.

No. 5—Rep. Markey (D-MA):  The amendment would allow the EPA to use “any authority under the Clean Air Act … to promulgate any regulation concerning, take any action relating to, or take into consideration the emission of a greenhouse gas to address climate change, if the Administrato determines that such promulgation, action or consideration will increase North American energy independence by reducing demand for oil.”

No. 6—Rep. Benishek (R-MI):  The amendment would require the Committee for the Cumulative Analysis of Regulations that Impact Energy and Manufacturing in the United States to include the health effects associated with regulatory costs in its assessment.

No. 7—Rep. Harris (R-MD):  The amendment would reinforce the transparency and sound science requirements in the bill.  Specifically, the amendment would require EPA to make data and modeling inputs available to the public, and would require Regulatory Impact Analysis to undergo external peer review according to the agency's own peer review guidelines.

No. 8—Rep. Jackson Lee (D-TX):  The amendment would strike section 503 of the bill, which relates to deadlines for agency comments to the Army Corps of Engineers (Corps) on a proposed CAA section 404 permit. 

No. 9—Rep. McKinley (R-WV):  The amendment would prohibit the EPA from retroactively vetoing a Section 404 Permit under the Clean Water Act. 

No. 10—Rep. Markey (D-MA):  The amendment would create a federal renewable electricity and energy efficiency standard.

No. 11—Rep. DeFazio (D-OR):  The amendment would require EPA and the Department of Transportation to submit a report to Congress within six months on the health, environmental, and public health impacts of fugitive coal dust.

No. 12—Reps. Berg (R-ND), Flake (R-AZ), Gosar (R-AZ), and Lankford (R-OK):  The amendment would give power to the states to revoke any existing federal implementation plan (FIP) with regard to the regulation of visibility (air pollutants that cause or contribute to the impairment of visibility).  In revoking the FIP, the state must propose a state implementation plan (SIP) to regulate visibility within two years.  The amendment would also give the states a minimum of five years to become compliant with federal standards if they choose to accept the FIP, allowing businesses time to plan for the changes.

 No. 13—Rep. Gosar (R-AZ):  The amendment would limit the authority of the Environmental Protection Agency to issue regulations on the Navajo Generating Station, located near Page, Arizona.