II Calendar No. 576 111th CONGRESS 2d Session S. 3813 IN THE SENATE OF THE UNITED STATES September 21, 2010 Mr. Bingaman (for himself, Mr. Brownback, Mr. Dorgan, Ms. Collins, Mr. Udall of New Mexico, Mr. Ensign, Mr. Udall of Colorado, Ms. Cantwell, Mr. Johnson, Mrs. Shaheen, Mr. Harkin, Mr. Reid, Mr. Bennet, Mrs. Murray, Mr. Begich, Mr. Franken, Mr. Burris, Mr. Kaufman, Mrs. Feinstein, Mr. Kerry, Mr. Durbin, Mr. Cardin, Mr. Grassley, and Ms. Stabenow) introduced the following bill; which was read the first time September 22, 2010 Read the second time and placed on the calendar A BILL To amend the Public Utility Regulatory Policies Act of 1978 to establish a Federal renewable electricity standard, and for other purposes.
1.
Short title
This Act may be cited as the Renewable Electricity Promotion Act of 2010.
2.
Federal renewable electricity standard
(a)
In general
Title VI of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601 et seq.) is amended by adding at the end the following:
610.
Federal renewable electricity standard
(a)
Definitions
In this section: (1)
Affiliate
The term affiliate when used with respect to a person, means another person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, such person, as determined under regulations issued by the Secretary. (2)
Base quantity of electricity
(A)
In general
The term base quantity of electricity means the total quantity of electricity sold by an electric utility to electric consumers in a calendar year. (B)
Exclusions
The term base quantity of electricity does not include— (i)electricity generated by a hydroelectric facility (including a pumped storage facility but excluding qualified hydropower) owned by an electric utility or sold under contract or rate order to an electric utility to meet the needs of the retail customers of the utility; (ii)the quantity of electricity generated by a fossil-fuel facility that is equal to the proportion of greenhouse gases produced by such a unit that are captured and geologically sequestered; or (iii)(I)electricity generated by a nuclear generating unit placed in service after the date of enactment of this section; or (II)additional energy generated by an existing nuclear facility as a result of efficiency improvements or capacity additions made on or after the date of enactment of this section. (3)
Biomass
The term biomass has the meaning given the term in section 203(b) of the Energy Policy Act of 2005 (42 U.S.C. 15852(b)). (4)
Distributed generation facility
The term distributed generation facility means a facility at or near a customer site that provides electric energy to 1 or more customers for purposes other than resale other than to a utility through a net metering arrangement. (5)
Geothermal energy
The term geothermal energy means energy derived from a geothermal deposit (within the meaning of section 613(e)(2) of the Internal Revenue Code of 1986). (6)
Incremental cost of compliance
(A)
In general
The term incremental cost of compliance means— (i)the costs attributable to all retail sales of electricity incurred in a year by an electric utility to— (I)generate renewable energy eligible for Federal renewable energy credits; (II)acquire Federal renewable energy credits; or (III)make alternative compliance payments in order to comply with the requirements of subsection (b); less (ii)(I)the costs the electric utility would have incurred to serve all of the retail customers of that electric utility in that year to generate or acquire additional electricity not eligible for renewable energy credits if the requirements of subsection (b) did not apply to the electric utility; and (II)the costs of compliance with any comparable State renewable requirement. (B)
Cost of electricity
In calculating the incremental cost of compliance of an electric utility under this section, the Secretary shall take into account the reduction, if any, on the cost of electricity generated with fossil fuels associated with increased reliance on renewable electric energy generation. (7)
Incremental geothermal production
(A)
In general
The term incremental geothermal production means, for any year, the excess of— (i)the total kilowatt hours of electricity produced from a facility (including a distributed generation facility) using geothermal energy; over (ii)the average number of kilowatt hours produced annually at the facility for 5 of the previous 7 calendar years before the date of enactment of this section after eliminating the highest and the lowest kilowatt hour production years in that 7-year period. (B)
Special rule
A facility described in subparagraph (A) that was placed in service at least 7 years before the date of enactment of this section shall, commencing with the year in which that date of enactment occurs, reduce the amount calculated under subparagraph (A)(ii) each year, on a cumulative basis, by the average percentage decrease in the annual kilowatt hour production for the 7-year period described in subparagraph (A)(ii) with such cumulative sum, but not to exceed 30 percent. (8)
Incremental hydropower
(A)
In general
The term incremental hydropower means additional energy generated as a result of efficiency improvements or capacity additions made on or after January 1, 1992. (B)
Exclusion
The term incremental hydropower does not include additional energy generated as a result of operational changes not directly associated with efficiency improvements or capacity additions. (C)
Measurement and certification
Efficiency improvements and capacity additions referred to in subparagraph (A) shall be— (i)measured on the basis of the same water flow information used to determine a historic average annual generation baseline for the hydroelectric facility; and (ii)certified by the Secretary or the Federal Energy Regulatory Commission. (9)
Indian land
The term Indian land has the meaning given the term in section 2601 of the Energy Policy Act of 1992 (25 U.S.C. 3501). (10)
Qualified hydropower
(A)
In general
The term qualified hydropower means— (i)incremental hydropower; (ii)additions of capacity made on or after January 1, 2001, or the effective commencement date of an existing applicable State renewable electricity standard program at an existing nonhydroelectric dam, if— (I)the hydroelectric project installed on the nonhydroelectric dam— (aa)is licensed by the Federal Energy Regulatory Commission, or is exempt from licensing, and is in compliance with the terms and conditions of the license or exemption; and (bb)meets all other applicable environmental, licensing, and regulatory requirements, including applicable fish passage requirements; (II)the nonhydroelectric dam— (aa)was placed in service before the date of enactment of this section; (bb)was operated for flood control, navigation, or water supply purposes; and (cc)did not produce hydroelectric power as of the date of enactment of this section; and (III)the hydroelectric project is operated so that the water surface elevation at any given location and time that would have occurred in the absence of the hydroelectric project is maintained, subject to any license requirements imposed under applicable law that change the water surface elevation for the purpose of improving the environmental quality of the affected waterway, as certified by the Federal Energy Regulatory Commission; and (iii)in the case of the State of Alaska— (I)energy generated by a small hydroelectric facility that produces less than 50 megawatts; (II)energy from pumped storage; and (III)energy from a lake tap. (B)
Standards
Nothing in this paragraph or the application of this paragraph shall affect the standards under which the Federal Energy Regulatory Commission issues licenses for and regulates hydropower projects under part I of the Federal Power Act (16 U.S.C. 791a et seq.). (11)
Qualified waste-to-energy
The term qualified waste-to-energy means energy from the combustion of post-recycled municipal solid waste, or from the gasification or pyrolization of such waste and the combustion of the resulting gas at the same facility, if the owner or operator of the facility generating electricity from the energy provides to the Commission, on an annual basis— (A)a certification that the facility is in compliance with all applicable Federal and State environmental permits; (B)in the case of a facility that commences operation before the date of enactment of this section, a certification that the facility meets emissions standards promulgated under section 112 or 129 of the Clean Air Act (42 U.S.C. 7412, 7429) that apply as of the date of enactment of this section to new facilities within the relevant source category; and (C)in the case of the combustion, pyrolization, or gasification of municipal solid waste, a certification that each local government unit from which such waste originates operates, participates in the operation of, contracts for, or otherwise provides for, recycling services for residents of the local government unit. (12)
Renewable energy
The term renewable energy means electric energy generated at a facility (including a distributed generation facility) from— (A)solar, wind, or geothermal energy or ocean energy; (B)biomass; (C)landfill gas; (D)qualified hydropower; (E)marine and hydrokinetic renewable energy (as defined in section 632 of the Energy Independence and Security Act of 2007 (42 U.S.C. 17211)); (F)incremental geothermal production; (G)coal-mined methane; (H)qualified waste-to-energy; or (I)another renewable energy source based on innovative technology, as determined by the Secretary through rulemaking. (b)
Renewable energy and energy efficiency requirement
(1)
Requirement
(A)
In general
Subject to subparagraph (B), each electric utility that sells electricity to electric consumers for a purpose other than resale shall obtain a percentage of the base quantity of electricity the electric utility sells to electric consumers in any calendar year from renewable energy or energy efficiency. (B)
Percentage
Except as provided in section 611, the percentage obtained in a calendar year under subparagraph (A) shall not be less than the amount specified in the following table: Calendar year:Minimum annual percentage: 2012 through 20133.0 2014 through 20166.0 2017 through 20189.0 2019 through 202012.0 2021 through 203915.0
(2)
Means of compliance
An electric utility shall meet the requirements of paragraph (1) by— (A)submitting to the Secretary renewable energy credits issued under subsection (c); (B)submitting Federal energy efficiency credits issued under subsection (i), except that those credits may not be used to meet more than 26.67 percent of the requirements under paragraph (1) in any calendar year; (C)making alternative compliance payments to the Secretary at the rate of 2.1 cents per kilowatt hour (as adjusted for inflation under subsection (g)) if the electric utility does not elect to petition the Secretary to waive the requirements under subsection (d)(3)(C); or (D)a combination of activities described in subparagraphs (A), (B), and (C). (3)
Phase-in
The Secretary shall prescribe, by regulation, a reasonable phase-in of the requirements of paragraph (1) as the requirements apply to an electric utility that becomes subject to this section on or after January 1, 2013. (c)
Federal renewable energy and energy efficiency credit trading programs
(1)
In general
Not later than January 1, 2012, the Secretary shall establish a Federal renewable energy credit trading program, and a Federal energy efficiency credit trading program, under which electric utilities shall submit to the Secretary Federal renewable energy credits and Federal energy efficiency credits to certify the compliance of the electric utilities with subsection (b)(1). (2)
Administration
As part of the program, the Secretary shall— (A)issue renewable energy credits to generators of electric energy from renewable energy, regardless of whether the energy is transmitted over the national interstate transmission system; (B)to the extent that renewable sources of electricity are used in combination with other sources of energy, issue credits only to the extent that the electricity generated is from renewable resources; (C)issue renewable energy credits to electric utilities associated with State renewable electricity standard compliance mechanisms pursuant to subsection (h); (D)issue energy efficiency credits pursuant to subsection (i); (E)subject to subparagraph (F), ensure that a kilowatt hour, including the associated renewable energy credit or energy efficiency credit, shall be used only once for purposes of compliance with this Act; (F)allow double credits for generation from facilities on Indian land, and triple credits for generation from small renewable distributed generators (meaning those no larger than 1 megawatt), except that no distributed renewable generation facilities on Indian land shall receive a greater number of credits than triple credits; (G)allow triple credits for generation of energy from algae; (H)ensure that, with respect to a purchaser that, as of the date of enactment of this section, has a purchase agreement from a renewable energy facility placed in service before that date, the credit associated with the generation of renewable energy under the contract is issued to the purchaser of the electric energy to the extent that the contract does not already provide for the allocation of the Federal credit; and (I)issue tradeable renewable energy credits for the useful electric and thermal output from a facility that produces the output from biomass, using a system under which— (i)in the case of efficiency that is less than 50 percent, 1 renewable energy credit is awarded; (ii)in the case of efficiency that is 50 percent or more but less than 70 percent, 1.1 renewable energy credits are awarded for the same unit output; (iii)in the case of efficiency that is 70 percent or more but less than 90 percent, 1.25 renewable energy credits are awarded for the same unit output; and (iv)in the case of efficiency that is 90 percent or more, 1.5 renewable energy credits are awarded for the same unit output. (3)
Duration
A credit described in subparagraph (A), (B), (C), or (D) of paragraph (2) may only be used for compliance with this section during the 3-year period beginning on the date of issuance of the credit. (4)
Transfers
An electric utility that holds credits in excess of the quantity of credits needed to comply with subsection (b) may transfer the credits to another electric utility in the same utility holding company system. (5)
Delegation of market function
(A)
In general
The Secretary may delegate to— (i)an appropriate market-making entity the administration of a national renewable energy credit market and a national energy efficiency credit market for purposes of creating a transparent national market for the sale or trade of renewable energy credits and energy efficiency credits; and (ii)regional entities the tracking of dispatch of renewable generation. (B)
Administration
Any delegation under subparagraph (A) shall ensure that the tracking and reporting of information concerning the dispatch of renewable generation is transparent, verifiable, and independent of any generation or load interests with obligations under this section. . (d)
Enforcement
(1)
Civil penalties
Any electric utility that fails to meet the requirements of subsection (b) shall be subject to a civil penalty. (2)
Amount of penalty
The amount of the civil penalty shall be equal to the product obtained by multiplying— (A)the number of kilowatt-hours of electric energy sold to electric consumers in violation of subsection (b); by (B)200 percent of the value of the alternative compliance payment, as adjusted for inflation under subsection (g). (3)
Mitigation or waiver
(A)
Penalty
(i)
In general
The Secretary may mitigate or waive a civil penalty under this subsection if the electric utility is unable to comply with subsection (b) due to a reason outside of the reasonable control of the electric utility. (ii)
Amount
The Secretary shall reduce the amount of any penalty determined under paragraph (2) by the amount paid by the electric utility to a State for failure to comply with the requirement of a State renewable energy program if the State requirement is greater than the applicable requirement of subsection (b). (B)
Requirement
The Secretary may waive the requirements of subsection (b) for a period of up to 5 years with respect to an electric utility if the Secretary determines that the electric utility cannot meet the requirements due to a hurricane, tornado, fire, flood, earthquake, ice storm, or other natural disaster or act of God beyond the reasonable control of the utility. (C)
Ratepayer protection
Effective beginning June 1, 2010, and not later than June 1 of each year thereafter, an electric utility may petition the Secretary to waive, for the following compliance year, all or part of the requirements of subsection (b) in order to limit the rate impact of the incremental cost of compliance of the electric utility to not more than 4 percent per retail customer in any year. (D)
Variance
A State public utility commission or electric utility may submit an application to the Secretary that requests a variance from the requirements of subsection (b) for 1 or more calendar years (including suspension or reduction of the requirements) on the basis of transmission constraints preventing delivery of service. (4)
Procedure for assessing penalty
The Secretary shall assess a civil penalty under this subsection in accordance with the procedures prescribed by section 333(d) of the Energy Policy and Conservation Act (42 U.S.C. 6303(d)). (e)
Alternative compliance payments
(1)
In general
An electric utility may satisfy the requirements of subsection (b), in whole or in part, by submitting in accordance with this subsection, in lieu of each Federal renewable electricity credit or megawatt hour of demonstrated total annual electricity savings that would otherwise be due, a payment equal to the amount required under subsection (b) in accordance with such regulations as the Secretary may promulgate. (2)
Payment to State funds
An amount equal to 75 percent of the payments made under this subsection shall be made directly to the State in which the electric utility is located, if the payments are deposited directly into a fund within the treasury of the State for use in accordance with paragraph (3). (3)
Use of grants
The Governor of any State may expend amounts in a State renewable energy escrow account solely for purposes of— (A)increasing the quantity of electric energy produced from a renewable energy source in the State, including nuclear and advanced coal technologies for carbon capture and sequestration; (B)promoting the deployment and use of electric drive vehicles in the State, including the development of electric drive vehicles and batteries; and (C)offsetting the costs of carrying out this section paid by electric consumers in the State through— (i)direct grants to electric consumers; or (ii)energy efficiency investments. (4)
Information and reports
As a condition of providing payments to a State under this subsection, the Secretary may require the Governor to keep such accounts or records, and furnish such information and reports, as the Secretary determines are necessary and appropriate for determining compliance with this subsection. (f)
Exemptions
During any calendar year, this section shall not apply to an electric utility— (1)that sold less than 4,000,000 megawatt-hours of electric energy to electric consumers during the preceding calendar year, except that sales to an affiliate, lessee, or tenant of the electric utility shall not be treated as sales to electric consumers under this paragraph; or (2)in Hawaii. (g)
Inflation adjustment
Not later than December 31 of each year beginning in 2013, the Secretary shall adjust for inflation the rate of the alternative compliance payment under subsection (b)(2)(C). (h)
State programs
(1)
In general
Subject to paragraph (2), nothing in this section diminishes any authority of a State or political subdivision of a State to adopt or enforce any law or regulation respecting renewable energy or energy efficiency, or the regulation of electric utilities,. (2)
Compliance
Except as provided in subsection (d)(3), no such law or regulation shall relieve any person of any requirement otherwise applicable under this section. (3)
Coordination
The Secretary, in consultation with States having such renewable energy and energy efficiency programs, shall, to the maximum extent practicable, facilitate coordination between the Federal program and State programs. (4)
Regulations
(A)
In general
The Secretary, in consultation with States, shall promulgate regulations to ensure that an electric utility that is subject to the requirements of this section and is subject to a State renewable energy standard receives renewable energy credits if— (i)the electric utility complies with the State standard by generating or purchasing renewable electric energy or renewable energy certificates or credits representing renewable electric energy; or (ii)the State imposes or allows other mechanisms for achieving the State standard, including the payment of taxes, fees, surcharges, or other financial obligations. (B)
Amount of credits
The amount of credits received by an electric utility under this subsection shall equal— (i)in the case of subparagraph (A)(i), the quantity of renewable energy resulting from the generation or purchase by the electric utility of renewable energy; and (ii)in the case of subparagraph (A)(ii), the pro rata share of the electric utility, based on the contributions to the mechanism made by the electric utility or customers of the electric utility, in the State, of the quantity of renewable energy resulting from those mechanisms. (C)
Prohibition on double counting
The regulations promulgated under this paragraph shall ensure that a kilowatt-hour associated with a renewable energy credit issued pursuant to this subsection shall not be used for compliance with this section more than once. (i)
Energy efficiency credits
(1)
Definitions
In this subsection: (A)
Customer facility savings
The term customer facility savings means a reduction in the consumption of end-use electricity at a facility of an end-use consumer of electricity served by an electric utility, as compared to— (i)consumption at the facility during a base year, taking into account reductions attributable to causes other than energy efficiency investments (such as economic downturns, reductions in customer base, favorable weather conditions, or other such causes); or (ii)in the case of new equipment (regardless of whether the new equipment replaces existing equipment at the end of the useful life of the existing equipment), consumption by similar equipment of average efficiency available for purchase at the time that new equipment is acquired. (B)
Electricity savings
The term electricity savings means— (i)customer facility savings of electricity consumption adjusted to reflect any associated increase in fuel consumption at the facility; (ii)reductions in distribution system losses of electricity achieved by a retail electricity distributor, as compared to losses attributable to new or replacement distribution system equipment of average efficiency (as defined by the Secretary by regulation); and (iii)the output of new combined heat and power systems, to the extent provided under paragraph (5). (C)
Qualified electricity savings
The term qualified electricity savings means electricity saving that meet the measurement and verification requirements of paragraph (4). (2)
Petition
On petition by the Governor of a State or, in the case of the power service area of the Tennessee Valley Authority, the Board of Directors of the Tennessee Valley Authority, the Secretary shall allow up to 26.67 percent of the requirements of an electric utility under subsection (b)(1) associated with the sales of electricity of the utility in the State to be met by submitting Federal energy efficiency credits issued pursuant to this subsection. (3)
Issuance of energy efficiency credits
(A)
In general
The Secretary shall issue energy efficiency credits for qualified electricity savings achieved in States described in paragraph (2) in accordance with this subsection. (B)
Qualified electricity savings
Subject to subparagraph (C), in accordance with regulations promulgated by the Secretary, the Secretary shall issue credits for— (i)qualified electricity savings achieved by an electric utility on or after the date of enactment of this section; and (ii)qualified electricity savings achieved by other entities (including State agencies) on or after the date of enactment of this section if— (I)the measures used to achieve the qualified electricity savings were installed or placed in operation by the entity seeking the credit; and (II)an electric utility eligible to receive efficiency did not pay a substantial portion of the cost of achieving the qualified electricity savings (unless the utility has waived any entitlement to the credit). (C)
Standards
No credits shall be issued for electricity savings achieved as a result of compliance with a national, State, or local building, equipment, or appliance efficiency standard. (4)
Measurement and verification of electricity savings
Not later than January 2010, the Secretary shall promulgate regulations regarding the measurement and verification of electricity savings under this subsection, including regulations covering— (A)procedures and standards for defining and measuring electricity savings that will be eligible to receive credits under paragraph (3), which shall— (i)specify the types of energy efficiency and energy conservation that will be eligible for the credits; (ii)require that energy consumption for customer facilities or portions of facilities in the applicable base and current years be adjusted, as appropriate, to account for changes in weather, level of production, and building area; (iii)account for the useful life of electricity savings measures; (iv)include specified electricity savings values for specific, commonly-used efficiency measures; and (v)exclude electricity savings that— (I)are not properly attributable to measures carried out by the entity seeking the credit; (II)have already been credited under this section to another entity; or (III)do not result from actions not intended to achieve electricity savings; (B)procedures and standards for third-party verification of reported electricity savings; and (C)such requirements for information, reports, and access to facilities as may be necessary to carry out this subsection. (5)
Combined heat and power
Under regulations promulgated by the Secretary, the increment of electricity output of a new combined heat and power system that is attributable to the higher efficiency of the combined system (as compared to the efficiency of separate production of the electric and thermal outputs), shall be considered electricity savings under this subsection. (j)
Biomass harvesting and sustainability
The provisions of this section relating to biomass shall be administered in accordance with section 203(e) of the Energy Policy Act of 2005 (42 U.S.C. 15852(e)). (k)
Loans for projects to comply with Federal renewable electricity standard
(1)
Purposes
The purposes of this subsection are— (A)to reduce the cost incurred by electric utilities in complying with the requirements of this section; and (B)to minimize the impact of the requirements on electricity rates for consumers. (2)
Loans
The Secretary shall make loans available to electric utilities to carry out qualified projects approved by the Secretary to comply with the requirements of this section. (3)
Qualified projects
(A)
In general
A loan may be made under this subsection for a project— (i)to construct a renewable energy generation facility; (ii)to install an energy efficiency or electricity demand reduction technology; or (iii)to carry out any other project approved by the Secretary that the Secretary determines is consistent with the purposes of this subsection. (B)
Disapproval
The Secretary may disapprove an application for a loan for a project under this subsection if the Secretary determines that— (i)the revenues generated under the project are unlikely to be sufficient to cover the repayment obligations of the proposed loan; or (ii)the project is not otherwise consistent with the purposes of this subsection. (4)
Terms
A loan made by the Secretary to an electric utility under this subsection shall— (A)be for a term of not to exceed 30 years; and (B)bear an annual interest rate that is 50 basis points more than the Federal funds rate established by the Board of Governors of the Federal Reserve System. (5)
Priority
Notwithstanding any other provision of law, the debt to the Federal Government under a loan made to an electric utility under this subsection shall have priority in any case in which the electric utility files for bankruptcy protection under title 11, United States Code. (6)
Authorization of appropriations
There are authorized to be appropriated such sums as are necessary to carry out this subsection. (l)
Reconsideration
(1)
Review
(A)
In general
Not later than January 15, 2017, and every 5 years thereafter, the Secretary shall review and make recommendations to Congress on the program established under this section. (B)
Analysis
The review shall analyze whether— (i)the program established under this section has contributed to an economically harmful increase in electricity rates in regions of the United States; (ii)the program has resulted in net economic benefits for the United States; and (iii)new technologies and clean, renewable energy sources will advance the purposes of this section. (2)
Recommendations
The Secretary shall submit to Congress recommendations on whether— (A)the percentage of energy efficiency credits eligible to be submitted under subsection (b)(1) should be increased or decreased; (B)the percentage of renewable electricity required under subsection (b)(1) should be increased or decreased; and (C)the definition of renewable energy should be expanded to reflect advances in technology or previously unavailable sources of clean or renewable energy. (3)
Report
Not later than January 15, 2017, the Secretary shall submit to Congress a report that describes any recommendations of the Secretary on changes to the program established under this section. (m)
Regulations
(1)
In general
Not later than 1 year after the date of enactment of this section, the Secretary shall promulgate interim final rules establishing regulations implementing this section. (2)
Information collection
Chapter 35 of title 44, United States Code, shall not apply to any information collection requirement necessary for the implementation of the program established by this section. (n)
Termination of authority
This section and the authority provided by this section terminate on December 31, 2039.
. (b)
Table of contents amendment
The table of contents of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. prec. 2601) is amended by adding at the end of the items relating to title VI the following: Sec. 610. Federal renewable electricity standard. .
3.
Federal purchase requirement amendments
Section 203 of the Energy Policy Act of 2005 (42 U.S.C. 15852) is amended— (1)by striking subsection (b) and inserting the following: (b)
Definitions
In this section: (1)
Biomass
The term biomass means the following types of nonhazardous organic materials: (A)Residues and byproducts from milled logs. (B)Wood, paper products that are not commonly recyclable, and vegetation (including trees and trimmings, yard waste, pallets, railroad ties, crates, and solid-wood manufacturing and construction debris), if diverted from or separated from other waste out of a municipal waste stream. (C)Hazard trees, trimmings, and brush that are necessary to remove in order to maintain a utility right-of-way or a public road (not including any unpaved road within Federal land). (D)Trees, trimmings, and brush harvested from the immediate vicinity of any building, campground, or other structure in wildfire-prone areas to reduce the risk to the structure or campground or to human life from wildfires. (E)Invasive species (as defined in Executive Order 13112 (42 U.S.C. 4321 note; relating to invasive species)) removed to control or eradicate the invasive species. (F)Animal waste and animal byproducts (including biogas and any solid produced by micro-organisms). (G)Food waste. (H)Algae. (I)Slash, brush, trees, and other vegetation that is harvested from non-Federal land or Indian land— (i)that is, at the time of harvest— (I)naturally regenerated forest land; (II)forest land that was planted for the purpose of restoring land to a naturally regenerated forest; or (III)if harvested in quantities and through practices that maintain or contribute toward the restoration of the species, ecological systems, and ecological communities for which the conservation forest land was identified, conservation forest land; or (ii)that is— (I)at the time of harvest, planted forest land; and (II)on the date of enactment of this section, cropland (including fallow land), pastureland, or planted forest land. (J)Crops, crop byproducts, and crop residues from non-Federal land or Indian land that is— (i)at the time of harvest, not forest land; and (ii)on the date of enactment of this section— (I)cropland (including fallow land and not including planted forest land); or (II)pastureland. (K)If harvested from Federal land in accordance with applicable law and land management plans and in quantities and through practices that maintain or contribute toward the restoration of ecological sustainability— (i)slash; and (ii)brush and trees that are byproducts of ecological restoration, disease or insect infestation control, or hazardous fuels reduction treatments and— (I)are from stands that— (aa)were killed by an insect or disease epidemic or a natural disaster; and (bb)do not meet the utilization standards for sawtimber; or (II)do not exceed the minimum size standards for sawtimber. (2)
Conservation forest land
(A)
In general
The term conservation forest land means forest land that contains a species, or includes all or part of an ecological system or community, that is at risk of extinction or elimination within a State or globally. (B)
Identification
Conservation forest land shall be identified based on the best available science and data by any of— (i)the State in which the land is located, unless the land is under the jurisdiction of an Indian tribe; (ii)an Indian tribe with jurisdiction over the land; or (iii)in consultation with the State in which the land is located or the Indian tribe with jurisdiction over the land— (I)the Secretary of Agriculture; or (II)the Secretary of the Interior. (C)
Exceptions
A tract of conservation forest land may not be removed from conservation forest land status under this section as a result of land management practices on the tract that— (i)occurred on or after the date of enactment of this subparagraph; and (ii)contributed toward the elimination of the species, or all or part of an ecological system or ecological community, for which the land was identified as conservation forest land. (3)
Federal land
(A)
In general
The term Federal land means— (i)National Forest System land; and (ii)public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)). (B)
Exclusions
(i)
In general
The term Federal land does not include— (I)any area designated by Congress to be administered for conservation purposes; or (II)a National Monument proclaimed by the President. (ii)
Old growth or late successional forest stands
The term Federal land does not include an old growth or late successional forest stand unless biomass from the stand does not exceed the minimum size standards for sawtimber and is a byproduct of an ecological restoration treatment that fully maintains, or contributes toward the restoration of, the structure and composition of an old growth forest stand in accordance with the old growth conditions characteristic of the forest type and retains the large trees contributing to old growth structure. (4)
Indian land
The term Indian land has the meaning given the term Indian country in section 1151 of title 18, United States Code. (5)
Indian tribe
The term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b). (6)
Non-Federal land
The term non-Federal land means land that is not owned by the Federal Government. (7)
Renewable energy
The term renewable energy means energy generated from solar, wind, biomass, landfill gas, ocean (including tidal, wave, current, and thermal), geothermal, municipal solid waste, or new hydroelectric generation capacity achieved from increased efficiency or additions of new capacity at an existing hydroelectric project. (8)
Secretary concerned
The term Secretary concerned means— (A)the Secretary of Agriculture, with regard to— (i)National Forest System land; and (ii)except as provided by subparagraph (B), non-Federal land; and (B)the Secretary of the Interior, with regard to— (i)public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)); and (ii)Indian land. ; and (2)by adding at the end the following: (e)
Biomass harvesting and sustainability
(1)
In general
The Secretaries concerned shall administer the provisions covered by subsection (b)(1) relating to the harvesting of biomass from Federal land and forest land. (2)
Inter-agency biomass sustainability study
(A)
In general
The Secretary, in consultation with the Secretary of Agriculture, the Secretary of the Interior, and the Administrator of the Environmental Protection Agency, shall conduct a study that assesses the impacts of biomass harvesting for energy production on— (i)landscape-level water quality, soil productivity, wildlife habitat, and biodiversity; and (ii)conservation forest land. (B)
Timing
The Secretary shall— (i)complete the study required under this paragraph not later than 5 years after the date of enactment of this subsection; and (ii)update the study not later than every 5 years thereafter. (C)
Basis
The Secretary shall base the study on the best available data and science. (D)
Recommendations
The Secretary shall include in the study such recommendations as are appropriate to reduce the impacts described in subparagraph (A). (E)
Public participation and availability
In carrying out this paragraph, the Secretary shall— (i)consult with States, Indian tribes, and other interested stakeholders; (ii)make available, and seek public comment on, a draft version of the study results; and (iii)make the final study results available to the public. .
September 22, 2010 Read the second time and placed on the calendar