II 112th CONGRESS 2d Session S. 3573 IN THE SENATE OF THE UNITED STATES September 19, 2012 Mr. Hoeven (for himself and Ms. Murkowski) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To recognize the primacy of States, provide for the consideration of the economic impact of additional regulations, and provide for standards and requirements relating to certain guidelines and regulations relating to health and the environment.

1.

Short title

This Act may be cited as the Empower States Act of 2012.

2.

Findings

Congress finds that— (1)the United States is dependent on adequate, affordable energy supplies from diverse sources for continued economic stability and growth, national security, and maintenance and enhancement of the quality of life of the people of the United States; (2)domestically produced natural gas and oil provide jobs and economic opportunity to the people of the United States and revenue to the States, including educational programs of the States; (3)volatile energy prices, as well as dependence on oil from Middle East sources, have a detrimental effect on the economy and security of the United States; (4)States have a long record of protecting human health and the environment while enabling increased energy development; (5)hydraulic fracturing is, and has been for decades, a common operation used in exploration and production by the oil and gas industry; (6)the regulation of oil and gas exploration and production activities, including hydraulic fracturing, has traditionally been the within the province of the States; and (7)States, that regulate oil and gas production, have comprehensive laws and regulations to ensure safe operations and drinking water.

3.

State primacy regarding safe drinking water

(a)

Authority of Administrator

Section 1414 of the Safe Drinking Water Act (42 U.S.C. 300g–3) is amended— (1)in subsection (b), by striking (b) The Administrator and all that follows through The court may enter and inserting the following: (b)

Enforcement actions

(1)

In general

Subject to paragraph (2), the Administrator may bring a civil action in the appropriate United States district court to require compliance with any applicable requirement, with an order issued under subsection (g), or with any schedule or other requirement imposed pursuant to a variance or exemption granted under section 1415 or 1416, if the order, schedule, or other requirement is— (A)authorized under paragraph (1) or (2) of subsection (a); or (B)requested by— (i)the chief executive officer of the State in which is located the public water system that is not in compliance with such regulation or requirement; or (ii)the State agency with jurisdiction over compliance by public water systems in the State with national primary drinking water regulations or State drinking water regulations. (2)

Requirement

Notwithstanding paragraph (1), the Administrator may not take any enforcement action against a State that has primary enforcement responsibility for public water systems (within the meaning of section 1413(a)) or a company or individual within the State pursuant to this subsection, section 1423, or any other provision of law, unless— (A)the Administrator determines that there is an imminent and substantial danger to the public health or environment; and (B)the State failed to take corrective action. (3)

Action by court

The court may enter ; (2)by redesignating subsections (h) and (i) as subsections (i) and (j), respectively; and (3)by inserting after subsection (g) the following: (h)

Amendment or revocation

The Administrator may not amend or revoke any program of a State with partial or total primary enforcement responsibility under this section unless the Administrator determines, by clear and convincing evidence, that the program fails to effectively protect drinking water in the State. . (b)

Regulations

Part E of the Safe Drinking Water Act (42 U.S.C. 300j et seq.) is amended by adding at the end the following:

1459.

Regulations

(a)

Comments relating to oil and gas exploration and production

Before issuing or promulgating any guideline or regulation relating to oil and gas exploration and production on Federal, State, tribal, or fee land pursuant to this Act, the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), or any other provision of law or Executive order, the head of a Federal department or agency shall seek comments from and consult with the head of each affected State, State agency, and Indian tribe at a location within the jurisdiction of the State or Indian tribe, as applicable. (b)

Statement of Energy and Economic Impact

Each Federal department or agency shall develop a Statement of Energy and Economic Impact, which shall consist of a detailed statement and analysis supported by credible objective evidence relating to— (1)any adverse effects on energy supply, distribution, or use, including a shortfall in supply, price increases, and increased use of foreign supplies; and (2)any impact on the domestic economy if the action is taken, including the loss of jobs and decrease of revenue to each of the general and educational funds of the State or affected Indian tribe. (c)

Regulations

(1)

In general

A Federal department or agency shall not impose any new or modified regulation unless the head of the applicable Federal department or agency determines— (A)that the rule is necessary to prevent immediate harm to human health or the environment; and (B)by clear and convincing evidence, that the State or Indian tribe does not have an existing reasonable alternative to the proposed regulation. (2)

Disclosure

Any Federal regulation promulgated on or after the date of enactment of this paragraph that requires disclosure of hydraulic fracturing chemicals shall refer to the database managed by the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission (as in effect on the date of enactment of this Act). (d)

Judicial review

(1)

In general

With respect to any regulation described in this section— (A)a State or Indian tribe adversely affected by an action carried out under the regulation shall be entitled to review by a United States district court located in the State or the District of Columbia of compliance by the applicable Federal department or agency with the requirements of this section; (B)an entity that is adversely affected by an action carried out under the regulation— (i)may intervene in a review action carried out under subparagraph (A) by the State in which the adverse effect to the entity has occurred or would occur; and (ii)shall be entitled to the same judicial review as a State under subparagraph (A) if, not later than 90 days after the date of receipt of a petition from the entity, the State in which the adverse effect to the entity has occurred or would occur fails to seek judicial review pursuant to subparagraph (A). (2)

Action by court

(A)

In general

A district court providing review under this subsection may enjoin or mandate any action by a relevant Federal department or agency until the district court determines that the department or agency has complied with the requirements of this section. (B)

Damages

The court shall not order money damages. (3)

Scope and standard of review

In reviewing a regulation under this subsection— (A)the court shall not consider any evidence outside of the record that was before the agency; and (B)the standard of review shall be de novo.

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