S. 1514 — Placed on Calendar (Senate)

II Calendar No. 191 113th CONGRESS 1st Session S. 1514 IN THE SENATE OF THE UNITED STATES September 17, 2013Mr. McConnell introduced the following bill; which was read the first time September 18, 2013Read the second time and placed on the calendar A BILL To save coal jobs, and for other purposes. 1. Short title; table of contents (a) Short title This Act may be cited as the Saving Coal Jobs Act of 2013. (b) Table of contents The table of contents of this Act is as follows: Sec. 1. Short title; table of contents.TITLE I—Prohibition on energy taxSec. 101. Prohibition on energy tax.TITLE II—PermitsSec. 201. National pollutant discharge elimination system.Sec. 202. Permits for dredged or fill material.Sec. 203. Impacts of Environmental Protection Agency regulatory activity on employment and economic activity.Sec. 204. Identification of waters protected by the Clean Water Act.Sec. 205. Limitations on authority to modify State water quality standards.Sec. 206. State authority to identify waters within boundaries of the State. I Prohibition on energy tax 101. Prohibition on energy tax (a) Findings; purposes (1) Findings Congress finds that— (A) on June 25, 2013, President Obama issued a Presidential memorandum directing the Administrator of the Environmental Protection Agency to issue regulations relating to power sector carbon pollution standards for existing coal fired power plants; (B) the issuance of that memorandum circumvents Congress and the will of the people of the United States; (C) any action to control emissions of greenhouse gases from existing coal fired power plants in the United States by mandating a national energy tax would devastate major sectors of the economy, cost thousands of jobs, and increase energy costs for low-income households, small businesses, and seniors on fixed income; (D) joblessness increases the likelihood of hospital visits, illnesses, and premature deaths; (E) according to testimony on June 15, 2011, before the Committee on Environment and Public Works of the Senate by Dr. Harvey Brenner of Johns Hopkins University, The unemployment rate is well established as a risk factor for elevated illness and mortality rates in epidemiological studies performed since the early 1980s. In addition to influences on mental disorder, suicide and alcohol abuse and alcoholism, unemployment is also an important risk factor in cardiovascular disease and overall decreases in life expectancy.; (F) according to the National Center for Health Statistics, children in poor families were four times as likely to be in fair or poor health as children that were not poor; (G) any major decision that would cost the economy of the United States millions of dollars and lead to serious negative health effects for the people of the United States should be debated and explicitly authorized by Congress, not approved by a Presidential memorandum or regulations; and (H) any policy adopted by Congress should make United States energy as clean as practicable, as quickly as practicable, without increasing the cost of energy for struggling families, seniors, low-income households, and small businesses. (2) Purposes The purposes of this section are— (A) to ensure that— (i) a national energy tax is not imposed on the economy of the United States; and (ii) struggling families, seniors, low-income households, and small businesses do not experience skyrocketing electricity bills and joblessness; (B) to protect the people of the United States, particularly families, seniors, and children, from the serious negative health effects of joblessness; (C) to allow sufficient time for Congress to develop and authorize an appropriate mechanism to address the energy needs of the United States and the potential challenges posed by severe weather; and (D) to restore the legislative process and congressional authority over the energy policy of the United States. (b) Presidential memorandum Notwithstanding any other provision of law, the head of a Federal agency shall not promulgate any regulation relating to power sector carbon pollution standards or any substantially similar regulation on or after June 25, 2013, unless that regulation is explicitly authorized by an Act of Congress. II Permits 201. National pollutant discharge elimination system (a) Applicability of guidance Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) is amended by adding at the end the following: (s) Applicability of guidance (1) Definitions In this subsection: (A) Guidance (i) In general The term guidance means draft, interim, or final guidance issued by the Administrator. (ii) Inclusions The term guidance includes— (I) the comprehensive guidance issued by the Administrator and dated April 1, 2010; (II) the proposed guidance entitled Draft Guidance on Identifying Waters Protected by the Clean Water Act and dated April 28, 2011; (III) the final guidance proposed by the Administrator and dated July 21, 2011; and (IV) any other document or paper issued by the Administrator through any process other than the notice and comment rulemaking process. (B) New permit The term new permit means a permit covering discharges from a structure— (i) that is issued under this section by a permitting authority; and (ii) for which an application is— (I) pending as of the date of enactment of this subsection; or (II) filed on or after the date of enactment of this subsection. (C) Permitting authority The term permitting authority means— (i) the Administrator; or (ii) a State, acting pursuant to a State program that is equivalent to the program under this section and approved by the Administrator. (2) Permits (A) In general Notwithstanding any other provision of law, in making a determination whether to approve a new permit or a renewed permit, the permitting authority— (i) shall base the determination only on compliance with regulations issued by the Administrator or the permitting authority; and (ii) shall not base the determination on the extent of adherence of the applicant for the new permit or renewed permit to guidance. (B) New permits If the permitting authority does not approve or deny an application for a new permit by the date that is 270 days after the date of receipt of the application for the new permit, the applicant may operate as if the application were approved in accordance with Federal law for the period of time for which a permit from the same industry would be approved. (C) Substantial completeness In determining whether an application for a new permit or a renewed permit received under this paragraph is substantially complete, the permitting authority shall use standards for determining substantial completeness of similar permits for similar facilities submitted in fiscal year 2007. . (b) State permit programs (1) In general Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) is amended by striking subsection (b) and inserting the following: (b) State permit programs (1) In general At any time after the promulgation of the guidelines required by section 304(a)(2), the Governor of each State desiring to administer a permit program for discharges into navigable waters within the jurisdiction of the State may submit to the Administrator— (A) a full and complete description of the program the State proposes to establish and administer under State law or under an interstate compact; and (B) a statement from the attorney general (or the attorney for those State water pollution control agencies that have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of the State, or the interstate compact, as applicable, provide adequate authority to carry out the described program. (2) Approval The Administrator shall approve each program for which a description is submitted under paragraph (1) unless the Administrator determines that adequate authority does not exist— (A) to issue permits that— (i) apply, and ensure compliance with, any applicable requirements of sections 301, 302, 306, 307, and 403; (ii) are for fixed terms not exceeding 5 years; (iii) can be terminated or modified for cause, including— (I) a violation of any condition of the permit; (II) obtaining a permit by misrepresentation or failure to disclose fully all relevant facts; and (III) a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge; and (iv) control the disposal of pollutants into wells; (B) (i) to issue permits that apply, and ensure compliance with, all applicable requirements of section 308; or (ii) to inspect, monitor, enter, and require reports to at least the same extent as required in section 308; (C) to ensure that the public, and any other State the waters of which may be affected, receives notice of each application for a permit and an opportunity for a public hearing before a ruling on each application; (D) to ensure that the Administrator receives notice and a copy of each application for a permit; (E) to ensure that any State (other than the permitting State), whose waters may be affected by the issuance of a permit may submit written recommendations to the permitting State and the Administrator with respect to any permit application and, if any part of the written recommendations are not accepted by the permitting State, that the permitting State will notify the affected State and the Administrator in writing of the failure of the State to accept the recommendations, including the reasons for not accepting the recommendations; (F) to ensure that no permit will be issued if, in the judgment of the Secretary of the Army (acting through the Chief of Engineers), after consultation with the Secretary of the department in which the Coast Guard is operating, anchorage and navigation of any of the navigable waters would be substantially impaired by the issuance of the permit; (G) to abate violations of the permit or the permit program, including civil and criminal penalties and other means of enforcement; (H) to ensure that any permit for a discharge from a publicly owned treatment works includes conditions to require the identification in terms of character and volume of pollutants of any significant source introducing pollutants subject to pretreatment standards under section 307(b) into the treatment works and a program to ensure compliance with those pretreatment standards by each source, in addition to adequate notice, which shall include information on the quality and quantity of effluent to be introduced into the treatment works and any anticipated impact of the change in the quantity or quality of effluent to be discharged from the publicly owned treatment works, to the permitting agency of— (i) new introductions into the treatment works of pollutants from any source that would be a new source (as defined in section 306(a)) if the source were discharging pollutants; (ii) new introductions of pollutants into the treatment works from a source that would be subject to section 301 if the source were discharging those pollutants; or (iii) a substantial change in volume or character of pollutants being introduced into the treatment works by a source introducing pollutants into the treatment works at the time of issuance of the permit; and (I) to ensure that any industrial user of any publicly owned treatment works will comply with sections 204(b), 307, and 308. (3) Administration Notwithstanding paragraph (2), the Administrator may not disapprove or withdraw approval of a program under this subsection on the basis of the following: (A) The failure of the program to incorporate or comply with guidance (as defined in subsection (s)(1)). (B) The implementation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c). . (2) Conforming amendments (A) Section 309 of the Federal Water Pollution Control Act (33 U.S.C. 1319) is amended— (i) in subsection (c)— (I) in paragraph (1)(A), by striking 402(b)(8) and inserting  402(b)(2)(H); and (II) in paragraph (2)(A), by striking 402(b)(8) and inserting 402(b)(2)(H); and (ii) in subsection (d), in the first sentence, by striking 402(b)(8) and inserting 402(b)(2)(H). (B) Section 402(m) of the Federal Water Pollution Control Act (33 U.S.C. 1342(m)) is amended in the first sentence by striking subsection (b)(8) of this section and inserting subsection (b)(2)(H). (c) Suspension of Federal program Section 402(c) of the Federal Water Pollution Control Act (33 U.S.C. 1342(c)) is amended— (1) by redesignating paragraph (4) as paragraph (5); and (2) by inserting after paragraph (3) the following: (4) Limitation on disapproval Notwithstanding paragraphs (1) through (3), the Administrator may not disapprove or withdraw approval of a State program under subsection (b) on the basis of the failure of the following: (A) The failure of the program to incorporate or comply with guidance (as defined in subsection (s)(1)). (B) The implementation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c). . (d) Notification of Administrator Section 402(d)(2) of the Federal Water Pollution Control Act (33 U.S.C. 1342(d)(2)) is amended— (1) by striking (2) and all that follows through the end of the first sentence and inserting the following: (2) Objection by Administrator (A) In general Subject to subparagraph (C), no permit shall issue if— (i) not later than 90 days after the date on which the Administrator receives notification under subsection (b)(2)(E), the Administrator objects in writing to the issuance of the permit; or (ii) not later than 90 days after the date on which the proposed permit of the State is transmitted to the Administrator, the Administrator objects in writing to the issuance of the permit as being outside the guidelines and requirements of this Act. ; (2) in the second sentence, by striking Whenever the Administrator and inserting the following: (B) Requirements If the Administrator ; and (3) by adding at the end the following: (C) Exception The Administrator shall not object to or deny the issuance of a permit by a State under subsection (b) or (s) based on the following: (i) Guidance, as that term is defined in subsection (s)(1). (ii) The interpretation of the Administrator of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c). . 202. Permits for dredged or fill material (a) In general Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) is amended— (1) by striking the section heading and all that follows through Sec. 404. (a) The Secretary may issue and inserting the following: 404. Permits for dredged or fill material (a) Permits (1) In general The Secretary may issue ; and (2) in subsection (a), by adding at the end the following: (2) Deadline for approval (A) Permit applications (i) In general Except as provided in clause (ii), if an environmental assessment or environmental impact statement, as appropriate, is required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Secretary shall— (I) begin the process not later than 90 days after the date on which the Secretary receives a permit application; and (II) approve or deny an application for a permit under this subsection not later than the latter of— (aa) if an agency carries out an environmental assessment that leads to a finding of no significant impact, the date on which the finding of no significant impact is issued; or (bb) if an agency carries out an environmental assessment that leads to a record of decision, 15 days after the date on which the record of decision on an environmental impact statement is issued. (ii) Processes Notwithstanding clause (i), regardless of whether the Secretary has commenced an environmental assessment or environmental impact statement by the date described in clause (i)(I), the following deadlines shall apply: (I) An environmental assessment carried out under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall be completed not later than 1 year after the deadline for commencing the permit process under clause (i)(I). (II) An environmental impact statement carried out under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall be completed not later than 2 years after the deadline for commencing the permit process under clause (i)(I). (B) Failure to act If the Secretary fails to act by the deadline specified in clause (i) or (ii) of subparagraph (A)— (i) the application, and the permit requested in the application, shall be considered to be approved; (ii) the Secretary shall issue a permit to the applicant; and (iii) the permit shall not be subject to judicial review. . (b) State Permitting Programs Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) is amended by striking subsection (c) and inserting the following: (c) Authority of Administrator (1) In general Subject to paragraphs (2) through (4), until the Secretary has issued a permit under this section, the Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, if the Administrator determines, after notice and opportunity for public hearings, that the discharge of the materials into the area will have an unacceptable adverse effect on municipal water supplies, shellfish beds or fishery areas (including spawning and breeding areas), wildlife, or recreational areas. (2) Consultation Before making a determination under paragraph (1), the Administrator shall consult with the Secretary. (3) Findings The Administrator shall set forth in writing and make public the findings of the Administrator and the reasons of the Administrator for making any determination under this subsection. (4) Authority of State permitting programs This subsection shall not apply to any permit if the State in which the discharge originates or will originate does not concur with the determination of the Administrator that the discharge will result in an unacceptable adverse effect as described in paragraph (1). . (c) State Programs Section 404(g)(1) of the Federal Water Pollution Control Act (33 U.S.C. 1344(g)(1)) is amended in the first sentence by striking for the discharge and inserting for all or part of the discharges. 203. Impacts of Environmental Protection Agency regulatory activity on employment and economic activity (a) Definitions In this section: (1) Administrator The term Administrator means the Administrator of the Environmental Protection Agency. (2) Covered action The term covered action means any of the following actions taken by the Administrator under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.): (A) Issuing a regulation, policy statement, guidance, response to a petition, or other requirement. (B) Implementing a new or substantially altered program. (3) More than a de minimis negative impact The term more than a de minimis negative impact means the following: (A) With respect to employment levels, a loss of more than 100 jobs, except that any offsetting job gains that result from the hypothetical creation of new jobs through new technologies or government employment may not be used in the job loss calculation. (B) With respect to economic activity, a decrease in economic activity of more than $1,000,000 over any calendar year, except that any offsetting economic activity that results from the hypothetical creation of new economic activity through new technologies or government employment may not be used in the economic activity calculation. (b) Analysis of impacts of actions on employment and economic activity (1) Analysis Before taking a covered action, the Administrator shall analyze the impact, disaggregated by State, of the covered action on employment levels and economic activity, including estimated job losses and decreased economic activity. (2) Economic models (A) In general In carrying out paragraph (1), the Administrator shall use the best available economic models. (B) Annual GAO report Not later than December 31st of each year, the Comptroller General of the United States shall submit to Congress a report on the economic models used by the Administrator to carry out this subsection. (3) Availability of information With respect to any covered action, the Administrator shall— (A) post the analysis under paragraph (1) as a link on the main page of the public Internet Web site of the Environmental Protection Agency; and (B) request that the Governor of any State experiencing more than a de minimis negative impact post the analysis in the Capitol of the State. (c) Public hearings (1) In general If the Administrator concludes under subsection (b)(1) that a covered action will have more than a de minimis negative impact on employment levels or economic activity in a State, the Administrator shall hold a public hearing in each such State at least 30 days prior to the effective date of the covered action. (2) Time, location, and selection (A) In general A public hearing required under paragraph (1) shall be held at a convenient time and location for impacted residents. (B) Priority In selecting a location for such a public hearing, the Administrator shall give priority to locations in the State that will experience the greatest number of job losses. (d) Notification If the Administrator concludes under subsection (b)(1) that a covered action will have more than a de minimis negative impact on employment levels or economic activity in any State, the Administrator shall give notice of such impact to the congressional delegation, Governor, and legislature of the State at least 45 days before the effective date of the covered action. 204. Identification of waters protected by the Clean Water Act (a) In general The Secretary of the Army and the Administrator of the Environmental Protection Agency may not— (1) finalize, adopt, implement, administer, or enforce the proposed guidance described in the notice of availability and request for comments entitled EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act (EPA–HQ–OW–2011–0409) (76 Fed. Reg. 24479 (May 2, 2011)); and (2) use the guidance described in paragraph (1), any successor document, or any substantially similar guidance made publicly available on or after December 3, 2008, as the basis for any decision regarding the scope of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) or any rulemaking. (b) Rules The use of the guidance described in subsection (a)(1), or any successor document or substantially similar guidance made publicly available on or after December 3, 2008, as the basis for any rule shall be grounds for vacating the rule. 205. Limitations on authority to modify State water quality standards (a) State water quality standards Section 303(c)(4) of the Federal Water Pollution Control Act (33 U.S.C. 1313(c)(4)) is amended— (1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively, and indenting appropriately; (2) by striking (4) The and inserting the following: (4) Promulgation of revised or new standards (A) In general The ; (3) by striking The Administrator shall promulgate and inserting the following: (B) Deadline The Administrator shall promulgate; and (4) by adding at the end the following: (C) State water quality standards Notwithstanding any other provision of this paragraph, the Administrator may not promulgate a revised or new standard for a pollutant in any case in which the State has submitted to the Administrator and the Administrator has approved a water quality standard for that pollutant, unless the State concurs with the determination of the Administrator that the revised or new standard is necessary to meet the requirements of this Act. . (b) Federal licenses and permits Section 401(a) of the Federal Water Pollution Control Act (33 U.S.C. 1341(a)) is amended by adding at the end the following: (7) State or interstate agency determination With respect to any discharge, if a State or interstate agency having jurisdiction over the navigable waters at the point at which the discharge originates or will originate determines under paragraph (1) that the discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307, the Administrator may not take any action to supersede the determination. . 206. State authority to identify waters within boundaries of the State Section 303(d) of the Federal Water Pollution Control Act (33 U.S.C. 1313(d)) is amended by striking paragraph (2) and inserting the following: (2) State authority to identify waters within boundaries of the State (A) In general Each State shall submit to the Administrator from time to time, with the first such submission not later than 180 days after the date of publication of the first identification of pollutants under section 304(a)(2)(D), the waters identified and the loads established under subparagraphs (A), (B), (C), and (D) of paragraph (1). (B) Approval or disapproval by Administrator (i) In general Not later than 30 days after the date of submission, the Administrator shall approve the State identification and load or announce the disagreement of the Administrator with the State identification and load. (ii) Approval If the Administrator approves the identification and load submitted by the State under this subsection, the State shall incorporate the identification and load into the current plan of the State under subsection (e). (iii) Disapproval If the Administrator announces the disagreement of the Administrator with the identification and load submitted by the State under this subsection. the Administrator shall submit, not later than 30 days after the date that the Administrator announces the disagreement of the Administrator with the submission of the State, to the State the written recommendation of the Administrator of those additional waters that the Administrator identifies and such loads for such waters as the Administrator believes are necessary to implement the water quality standards applicable to the waters. (C) Action by State Not later than 30 days after receipt of the recommendation of the Administrator, the State shall— (i) disregard the recommendation of the Administrator in full and incorporate its own identification and load into the current plan of the State under subsection (e); (ii) accept the recommendation of the Administrator in full and incorporate its identification and load as amended by the recommendation of the Administrator into the current plan of the State under subsection (e); or (iii) accept the recommendation of the Administrator in part, identifying certain additional waters and certain additional loads proposed by the Administrator to be added to the State’s identification and load and incorporate the State’s identification and load as amended into the current plan of the State under subsection (e). (D) Noncompliance by Administrator (i) In general If the Administrator fails to approve the State identification and load or announce the disagreement of the Administrator with the State identification and load within the time specified in this subsection— (I) the identification and load of the State shall be considered approved; and (II) the State shall incorporate the identification and load that the State submitted into the current plan of the State under subsection (e). (ii) Recommendations not submitted If the Administrator announces the disagreement of the Administrator with the identification and load of the State but fails to submit the written recommendation of the Administrator to the State within 30 days as required by subparagraph (B)(iii)— (I) the identification and load of the State shall be considered approved; and (II) the State shall incorporate the identification and load that the State submitted into the current plan of the State under subsection (e). (E) Application This section shall apply to any decision made by the Administrator under this subsection issued on or after March 1, 2013. . September 18, 2013Read the second time and placed on the calendar