[Congressional Record Volume 157, Number 31 (Thursday, March 3, 2011)]
[Senate]
[Pages S1221-S1222]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCONNELL (for himself, Mr. Paul, and Mr. Inhofe):
  S. 468. A bill to amend the Federal Water Pollution Control Act to 
clarify the authority of the Administrator to disapprove specifications 
of disposal sites for the discharge of, dredged or fill material, and 
to clarify the procedure under which a higher review of specifications 
may be requested; to the Committee on Environment and Public Works.
  Mr. McCONNELL. Mr. President, my friend and colleague from Kentucky, 
Senator Paul, and I would like at this time to address the Senate about 
a bill we are introducing.
  Coal is an enormously vital sector of Kentucky's economy. More than 
200,000 jobs in my State depend on it, including the jobs of 
approximately 18,000 coal miners. Coal is tremendously important to our 
country as well. One-half of the country's electricity comes from coal. 
Yet, as we are faced with a weakened economy and high unemployment, an 
overreaching Environmental Protection Agency in Washington is blocking 
new jobs for Kentuckians and Americans by waging a literal war on coal.
  To mine for coal, coal operators must receive what are called 404 
permits. Those come from the EPA in order to operate. One such mine in 
southern West Virginia followed all of the proper procedures and got 
the green light from EPA to proceed with operations back in 2007.
  But now, 3\1/2\ years later, in an unprecedented reversal, the EPA 
has retroactively ``reinterpreted'' its authority, withdrawn the permit 
it issued, and shut down the mine. The EPA's reinterpretation cost 280 
Americans their jobs.
  The EPA also announced that 79 of the 404 permit applications still 
being considered would be subject to ``enhanced environmental 
review''--``enhanced environmental review''--effectively putting them 
in limbo along with the jobs and economic activity they could create. 
Some of those permits are for jobs in Kentucky.
  The EPA's action simply defies logic. Not only are they changing the 
rules in the middle of the game, they are retroactively changing the 
rules to shut down mines they already approved. No mine, regardless of 
whether it has been operating for years in full compliance of every 
rule and regulation, can be assured that Uncle Sam will not come along 
and shut them down.
  Thousands of Kentuckians who work in coal mining or have jobs 
dependent on mining are literally in jeopardy. Other industries are at 
risk also. Farmers, developers, the transportation industry, and others 
also need permits from the EPA to continue to operate. They, too, could 
see these permits revoked.
  The EPA has turned the permitting process into a backdoor means of 
shutting down coal mines by sitting on permits indefinitely, thus 
removing any regulatory certainty. What they are doing is outside the 
scope of their authority and the law and represents a fundamental 
departure from the permitting process as originally envisioned by 
Congress.
  That is why I rise today to introduce, along with my good friends, 
Senator Rand Paul and Senator James Inhofe, the Mining Jobs Protection 
Act in the Senate.
  This bill will tell the EPA to ``use it or lose it'' when deciding 
whether to invoke its veto authority of a 404 permit within a 
reasonable timeframe, giving permit applicants the certainty they need 
to do business.
  The bill would ensure that all 404 permits move forward to be either 
approved or rejected, so applicants are not left in limbo, unsure how 
to act.
  The bill also ensures that EPA cannot use its veto retroactively.
  While being fair to permit applicants, the bill still preserves the 
EPA's full veto authority to protect human health and the environment.
  Here is how the legislation would work. Once the EPA receives the 404 
permit, it will have 30 days to determine if it is considering using 
its veto authority. If the Agency is considering doing so, it must 
publish that fact in the Federal Register, cite any potential concerns, 
and detail what must be done to address those concerns within the 
initial 30 days. The EPA then has an additional 30 days, for a total of 
2 months, to invoke its veto authority. If the Agency does not use its 
veto authority within 60 days, the permit automatically moves forward 
and EPA's veto authority expires. All permits that have already been 
applied for would go through this process, ensuring every permit gets a 
fair shake.
  Any permits vetoed prior to the passage of the bill would be 
reconsidered by the Army Corps of Engineers. It was important to me 
that this legislation address every 404 permit, not just one or a few.
  This is a fair process that allows the EPA to act as vigorously as 
necessary to protect the environment and those of us living in it while 
also giving permit applications the certainty of knowing within a 
reasonable timeframe whether to proceed with mining operations and 
knowing that once they have the green light, it is not going to be 
subsequently revoked. More important, this legislation will allow my 
State and others to protect the coal and related industry jobs we 
already have and grow new ones in the future.
  I wish to thank my colleague from Kentucky and Senator Inhofe for 
standing alongside me on this matter that is so important to our States 
but also to the country as a whole. This is not just a Kentucky issue. 
We think our bill strikes a fair balance toward conserving the best of 
America's natural beauty while also building toward a brighter future.
  The EPA's mission is important but so is job creation. Particularly 
when unemployment is higher than all of us would like, both sides of 
the equation must be considered. So I look forward to working with my 
colleagues on both sides of the aisle to make the Mining Jobs 
Protection Act a law.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 468

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Mining Jobs Protection 
     Act''.

     SEC. 2. PERMITS FOR DREDGED OR FILL MATERIAL.

       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 to Disapprove 
     Specifications.--
       ``(1) In general.--The Administrator, in accordance with 
     this subsection, may prohibit the specification of any 
     defined area as a disposal site, and may deny or restrict the 
     use of any defined area for specification as a disposal site, 
     in any case in which the Administrator determines, after 
     notice and opportunity for public hearings and consultation 
     with the Secretary, that the discharge of those materials 
     into the area will have an unacceptable adverse effect on--
       ``(A) municipal water supplies;
       ``(B) shellfish beds and fishery areas (including spawning 
     and breeding areas);
       ``(C) wildlife; or
       ``(D) recreational areas.
       ``(2) Deadline for action.--
       ``(A) In general.--The Administrator shall--
       ``(i) not later than 30 days after the date on which the 
     Administrator receives from the Secretary for review a 
     specification proposed to be issued under subsection (a), 
     provide notice to the Secretary of, and publish in the 
     Federal Register, a description of any potential concerns of 
     the Administrator with respect to the specification, 
     including a list of

[[Page S1222]]

     measures required to fully address those concerns; and
       ``(ii) if the Administrator intends to disapprove a 
     specification, not later than 60 days after the date on which 
     the Administrator receives a proposed specification under 
     subsection (a) from the Secretary, provide to the Secretary 
     and the applicant, and publish in the Federal Register, a 
     statement of disapproval of the specification pursuant to 
     this subsection, including the reasons for the disapproval.
       ``(B) Failure to act.--If the Administrator fails to take 
     any action or meet any deadline described in subparagraph (A) 
     with respect to a proposed specification, the Administrator 
     shall have no further authority under this subsection to 
     disapprove or prohibit issuance of the specification.
       ``(3) No retroactive disapproval.--
       ``(A) In general.--The authority of the Administrator to 
     disapprove or prohibit issuance of a specification under this 
     subsection--
       ``(i) terminates as of the date that is 60 days after the 
     date on which the Administrator receives the proposed 
     specification from the Secretary for review; and
       ``(ii) shall not be used with respect to any specification 
     after issuance of the specification by the Secretary under 
     subsection (a).
       ``(B) Specifications disapproved before date of 
     enactment.--In any case in which, before the date of 
     enactment of this subparagraph, the Administrator disapproved 
     a specification under this subsection (as in effect on the 
     day before the date of enactment of the Mining Jobs 
     Protection Act) after the specification was issued by the 
     Secretary pursuant to subsection (a)--
       ``(i) the Secretary may--

       ``(I) reevaluate and reissue the specification after making 
     appropriate modifications; or
       ``(II) elect not to reissue the specification; and

       ``(ii) the Administrator shall have no further authority to 
     disapprove the modified specification or any reissuance of 
     the specification.
       ``(C) Finality.--An election by the Secretary under 
     subparagraph (B)(i) shall constitute final agency action.
       ``(4) Applicability.--Except as provided in paragraph (3), 
     this subsection applies to each specification proposed to be 
     issued under subsection (a) that is pending as of, or 
     requested or filed on or after, the date of enactment of the 
     Mining Jobs Protection Act''.

     SEC. 3. REVIEW OF PERMITS.

       Section 404(q) of the Federal Water Pollution Control Act 
     (33 U.S.C. 1344(q)) is amended--
       (1) in the first sentence, by striking ``(q) Not later 
     than'' and inserting the following:
       ``(q) Agreements; Higher Review of Permits.--
       ``(1) Agreements.--
       ``(A) In general.--Not later than'';
       (2) in the second sentence, by striking ``Such agreements'' 
     and inserting the following:
       ``(B) Deadline.--Agreements described in subparagraph 
     (A)''; and
       (3) by adding at the end the following:
       ``(2) Higher review of permits.--
       ``(A) In general.--Subject to subparagraph (C), before the 
     Administrator or the head of another Federal agency requests 
     that a permit proposed to be issued under this section 
     receive a higher level of review by the Secretary, the 
     Administrator or other head shall--
       ``(i) consult with the head of the State agency having 
     jurisdiction over aquatic resources in each State in which 
     activities under the requested permit would be carried out; 
     and
       ``(ii) obtain official consent from the State agency (or, 
     in the case of multiple States in which activities under the 
     requested permit would be carried out, from each State 
     agency) to designate areas covered or affected by the 
     proposed permit as aquatic resources of national importance.
       ``(B) Failure to obtain consent.--If the Administrator or 
     the head of another Federal agency does not obtain State 
     consent described in subparagraph (A) with respect to a 
     permit proposed to be issued under this section, the 
     Administrator or Federal agency may not proceed in seeking 
     higher review of the permit.
       ``(C) Limitation on elevations.--The Administrator or the 
     head of another Federal agency may request that a permit 
     proposed to be issued under this section receive a higher 
     level of review by the Secretary not more than once per 
     permit.
       ``(D) Effective date.--This paragraph applies to permits 
     for which applications are submitted under this section on or 
     after January 1, 2010.''.

  Mr. PAUL. Mr. President, I rise in support of this legislation. I 
think this is a good first step to reining in an out-of-control, 
unelected bureaucracy. I think the EPA has gone way beyond its mandated 
duty and is now at the point of stifling industry in our country. We 
see this and hear this across the State of Kentucky, as well as across 
the country. The President doesn't seem to understand why the country 
thinks he is against business and against progress. One can't be for 
job creation if one is against the job creators.
  As the minority leader indicated, we have nearly 100,000 jobs and 
hundreds of thousands of other jobs connected to coal. This really 
applies to the rest of the country as well. Over half of the 
electricity in our country comes from coal. Over 90 percent of the 
electricity in Kentucky comes from coal. Yet we have mining operations 
that went through the process, some of them taking up to 10 years. I 
think the mine in question went through a 10-year process, spent 
millions of dollars to try to get started to provide electricity for 
the rest of us. Yet then the EPA comes in at the last minute.
  There is said to be nearly 200 permits out there languishing. I asked 
the question of my staff this morning: How many have been applied for 
and how many have been granted? The EPA won't even tell us that. But 
from talking to those trying to produce the coal, to produce the 
electricity for our country, they said they can't get permits. In fact, 
there is one coal company in Kentucky that is now suing the Federal 
Government, saying they have taken his property. They have effectively 
taken his property because he can't get a permit. This is a real 
problem. The average expectancy for getting a permit in our country now 
for all mines is 7 years.
  We wonder why we are languishing as we depend on everyone else for 
our energy. We want to be energy independent, and we sit on top of some 
of our country's most natural resources in oil and coal. Yet we won't 
produce our own. We have to become so involved and there are so many 
justifications for war across the world and this and that. Yet we 
refuse to use our own resources.
  This is a very good step in trying to make the process better. All it 
is saying is that the EPA cannot have unlimited time to sit on our 
permits. This is saying there have to be rules.
  I say this is a first step because I think the last election was 
about saying that unelected bureaucrats should not write law. That is 
what has happened. The President and many of his supporters have 
indicated they can't get cap and trade through the elected body, so 
they are going to go through the back door, through regulations. The 
American people need to stand up and say that unelected bureaucrats 
should not and cannot be allowed to write law. That is essentially what 
is happening now. I think this is a great first step. I compliment the 
minority leader for bringing this forward, and I wholeheartedly support 
it.
                                 ______