II 111th CONGRESS 2d Session S. 3933 IN THE SENATE OF THE UNITED STATES September 29, 2010 Mr. Bunning introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To protect electricity reliability by prohibiting the use of funds for carrying out certain policies and procedures that adversely affect domestic coal mining operations, and for other purposes.

1.

Short title

This Act may be cited as the Electricity Reliability Protection Act of 2010.

2.

Findings

Congress finds the following: (1)The United States consumes over 1 billion tons of coal annually. Most of this coal is used to meet nearly one-half of the Nation’s electricity needs. The remaining amount of coal is used to produce, among other things, steel, plastics, synthetic fibers, medicines, and coke. (2)On June 11, 2009, the Environmental Protection Agency and the Department of the Army issued a Memorandum on Enhanced Surface Coal Mining Pending Permit Coordination Procedures. (3)As of March 2010, under these new procedures, the Environmental Protection Agency has unlawfully delayed Clean Water Act permits for 190 coal mining operations. (4)These 190 coal mining operations are expected to produce over 2 billion tons of coal (throughout the life of operations) and support roughly 17,806 new and existing jobs as well as 81 small businesses. (5)Due to the actions of the Environmental Protection Agency, roughly 1 in every 4 coal mining jobs in the Appalachian region is at risk of elimination, 81 small businesses will lose significant income and will be at risk of bankruptcy, and more than 2 years of the Nation’s coal supply is in jeopardy. (6)By preventing the production and use of a 2-year supply of coal, the Environmental Protection Agency is putting electricity reliability for consumers at risk. (7)On April 1, 2010, Peter S. Silva, Assistant Administrator for the Office of Water, and Cynthia Giles, Assistant Administrator for the Office of Enforcement and Compliance Assistance, took further action to threaten jobs, harm small businesses, reduce electricity reliability, harm national security, and drive up energy prices by releasing detailed guidance on Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order. (8)This guidance goes far beyond clarification and coordination and arrogates to the Environmental Protection Agency wholly new powers to supersede the authority of States under the Clean Water Act and the Surface Mining Control and Reclamation Act of 1977 (SMCRA), the authority of the Corps of Engineers (Corps) under the Clean Water Act, the authority of the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior (OSM) under SMCRA, and the authority of both the Corps and OSM under the National Environmental Policy Act of 1969. (9)The June 2009 memorandum and the April 2010 guidance meet the definition of a rulemaking under the Administrative Procedure Act because each is an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy under section 551(4) of title 5, United States Code. (10)The Environmental Protection Agency has not gone through notice and comment rulemaking to prescribe the new policies set forth in the June 2009 memorandum or the April 2010 guidance in violation of the Administrative Procedure Act. (11)Any use of the June 2009 memorandum or the April 2010 guidance to review, delay, and veto Clean Water Act permits is unlawful. (12)The actions of the Environmental Protection Agency could cause drastic increases in the Nation’s energy prices due to decreases in coal supply. (13)By preventing the United States from reducing our reliance on foreign sources of energy and by reducing our ability to produce energy domestically, the Environmental Protection Agency is harming national security.

3.

Limitation on use of funds

None of the funds made available to the Environmental Protection Agency, the Corps of Engineers, or the Office of Surface Mining Reclamation and Enforcement for fiscal year 2010 or any fiscal year thereafter may be used to carry out, implement, administer, or enforce any policy or procedure set forth in— (1)the memorandum issued by the Environmental Protection Agency and Department of the Army entitled Enhanced Surface Coal Mining Pending Permit Coordination Procedures, dated June 11, 2009, or (2)the guidance issued by the Environmental Protection Agency entitled Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order, dated April 1, 2010, until the Environmental Protection Agency, the Corps of Engineers, or the Office of Surface Mining Reclamation and Enforcement of the Department of the Interior, as appropriate under their existing statutory authorities, promulgates regulations for the implementation of such policy or procedure after providing notice and an opportunity for comment in accordance with subchapter II of chapter 5 of title 5, United States Code, popularly known as the Administrative Procedure Act.