[House Report 118-21]
[From the U.S. Government Publishing Office]


118th Congress   }                                          {   Report
                        HOUSE OF REPRESENTATIVES
  1st Session    }                                          {   118-21

======================================================================


 
TO AMEND THE SOLID WASTE DISPOSAL ACT TO PROVIDE THE OWNER OR OPERATOR 
OF A CRITICAL ENERGY RESOURCE FACILITY AN INTERIM PERMIT UNDER SUBTITLE 
    C THAT IS SUBJECT TO FINAL APPROVAL BY THE ADMINISTRATOR OF THE 
        ENVIRONMENTAL PROTECTION AGENCY, AND FOR OTHER PURPOSES

                                _______
                                

 March 23, 2023.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mrs. Rodgers of Washington, from the Committee on Energy and Commerce, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1070]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 1070) to amend the Solid Waste Disposal Act to 
provide the owner or operator of a critical energy resource 
facility an interim permit under subtitle C that is subject to 
final approval by the Administrator of the Environmental 
Protection Agency, and for other purposes, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Committee Action.................................................     4
Committee Votes..................................................     4
Oversight Findings and Recommendations...........................     8
New Budget Authority, Entitlement Authority, and Tax Expenditures     8
Congressional Budget Office Estimate.............................     8
Federal Mandates Statement.......................................     8
Statement of General Performance Goals and Objectives............     8
Duplication of Federal Programs..................................     8
Related Committee and Subcommittee Hearings......................     8
Committee Cost Estimate..........................................     9
Earmark, Limited Tax Benefits, and Limited Tariff Benefits.......     9
Advisory Committee Statement.....................................     9
Applicability to Legislative Branch..............................     9
Section-by-Section Analysis of the Legislation...................    10
Changes in Existing Law Made by the Bill, as Reported............    10
Minority Views...................................................    11

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. INTERIM HAZARDOUS WASTE PERMITS.

  Section 3005(e) of the Solid Waste Disposal Act (42 U.S.C. 6925(e)) 
is amended--
          (1) in paragraph (1)(A)--
                  (A) in clause (i), by striking ``or'' at the end;
                  (B) in clause (ii), by inserting ``or'' after ``this 
                section,'';
                  (C) by adding at the end the following:
                  ``(iii) is a critical energy resource facility,''; 
                and
          (2) by adding at the end the following:
  ``(4) Definitions.--For the purposes of this subsection:
          ``(A) Critical energy resource.--The term `critical energy 
        resource' means, as determined by the Secretary of Energy, any 
        energy resource--
                  ``(i) that is essential to the energy sector and 
                energy systems of the United States; and
                  ``(ii) the supply chain of which is vulnerable to 
                disruption.
          ``(B) Critical energy resource facility.--The term `critical 
        energy resource facility' means a facility that processes or 
        refines a critical energy resource.''.

                          PURPOSE AND SUMMARY

    To amend the Solid Waste Disposal Act to provide the owner 
or operator of a critical energy resource facility an interim 
permit, under Subtitle C of such Act, that is subject to final 
approval by the Administrator of the Environmental Protection 
Agency or a State with primary enforcement responsibility.

                  BACKGROUND AND NEED FOR LEGISLATION

    Between 1984 and 2018, for the global economy that was in 
place pre-pandemic, total tonnage output of non-fuel minerals 
increased more than 2.5 times (based on data from the World 
Mining Congress, WMC, open source).\1\
---------------------------------------------------------------------------
    \1\https://docs.house.gov/meetings/IF/IF18/20200916/111008/HHRG-
116-IF18-Wstate-MichotFossM-20200916-U1.pdf.
---------------------------------------------------------------------------
    Testimony from a minerals expert before the Committee has 
highlighted, though, that the challenge is not just gross 
tonnage but also quality; particularly for high performance end 
uses and applications.\2\ A significant hurdle is access for 
development, including industrial infrastructure to support 
mining and minerals processing.\3\ Investments can only proceed 
at a pace that current critical supply chains can support--
meaning the global market needs new resource centers and 
logistics pathways.\4\
---------------------------------------------------------------------------
    \2\HHRG-116-IF18-Wstate-MichotFossM-20200916-U1.pdf (house.gov).
    \3\Ibid.
    \4\https://news.rice.edu/news/2023/energy-transition-requires-new-
investments-minerals-
heartland.
---------------------------------------------------------------------------
    According to the International Energy Agency (IEA), the 
supply chain for many clean energy technologies and their raw 
materials is more geographically concentrated than that of oil 
or natural gas--especially when it comes to minerals that are 
central to manufacturing clean energy technology equipment and 
infrastructure.\5\ Not only do certain countries dominate 
critical minerals production, but the level of concentration is 
also higher for processing and refining operations--currently 
the U.S. does not even register when it comes to total 
processing of the main critical minerals.\6\ This creates a 
source of concern for potential supply disruptions, 
manufacturing newer energy technologies, and maintaining an 
effective standard of living.
---------------------------------------------------------------------------
    \5\https://www.iea.org/reports/the-role-of-critical-minerals-in-
clean-energy-transitions/the-state-of-play.
    \6\Ibid.
---------------------------------------------------------------------------
    To rebalance global supply and strengthen the U.S. economy 
for the future; more domestic mineral refining capacity needs 
to be constructed and operating. A foreseeable need for a 
facility of this nature is Subtitle C permit under the Solid 
Waste Disposal Act--commonly referred to as the Resource 
Conservation and Recovery Act (RCRA)--which is a precondition 
to construction.
    Under Subtitle C of RCRA, a mineral processing facility 
that generates a RCRA-regulated waste needs a permit if it does 
one of three things on-site: stores the waste for 90-days, 
treats the waste, or disposes of the waste.\7\ Owners and 
operators of four types of these treatment, storage, and 
disposal facilities are subject to these requirements: new 
facilities not yet constructed; newly regulated existing 
facilities subject to RCRA permitting requirements for the 
first time; permitted facilities with newly regulated units; 
and interim status facilities.\8\ This permit must be applied 
for 180 days before physical construction of a new facility can 
begin--and no type of facility can operate without a permit.\9\
---------------------------------------------------------------------------
    \7\RCRA section 3005(a)--42 U.S.C. Sec. 6925(a).
    \8\https://rcrapublic.epa.gov/rcrainfoweb/documents/
rcra_subtitleC_forms_and_
instructions.pdf.
    \9\Ibid.
---------------------------------------------------------------------------
    It has been estimated that it can take 5 years for a RCRA 
Subtitle C permit to be issued.\10\ According to the Business 
Roundtable, ``[t]he slow and inefficient permitting process for 
energy infrastructure projects continues to discourage private 
sector investment, delay new projects and undermine the value 
of taxpayer investments.''\11\
---------------------------------------------------------------------------
    \10\https://www.era-environmental.com/blog/rcra-facts-an-overview-
of-the-hazardous-waste-
management-law.
    \11\https://www.businessroundtable.org/policy-perspectives/smart-
regulation/the-case-for-
permitting-reform.
---------------------------------------------------------------------------
    RCRA section 3305(e), through the creation of an 
``interim'' permit status, provides a pathway to investment and 
construction certainty; but also keeps the permittee 
responsible for protecting the environment. While ``Interim'' 
status does not apply to prior to construction, it is a period 
in which the owner or operator is treated as having been issued 
a RCRA Subtitle C permit by EPA or a State even though the 
owner or operator has not yet received a final 
determination.\12\ Interim status continues until a final 
determination is made by EPA or a state to issue or deny the 
permit.\13\
---------------------------------------------------------------------------
    \12\40 CFR Sec. Sec. 270.1(c) https://rcrapublic.epa.gov/
rcrainfoweb/documents/rcra_subtitleC_forms_
and_instructions.pdf.
    \13\RCRA section 3005(e)(1).
---------------------------------------------------------------------------
    Facility owners and operators who have interim status must 
comply with interim status standards set forth in 40 CFR part 
265 (standards for owners and operators of hazardous waste 
treatment, storage, and disposal facilities) and 40 Part 266 
(standards for management of specific hazardous wastes and 
facilities) or with ``an analogous provision'' of a State 
program which has received interim or final authorization under 
40 CFR part 271.\14\ Facility owners and operators are not 
relieved from complying with other State requirements, the 
interim permit can be assessed by government officials at any 
time for determining whether it can become more permanent, and 
compliance with the regulations and information requirements is 
necessary to maintain an interim permit. Finally, any facility 
that has been denied an interim permit or been denied the 
ability to operate cannot obtain an interim permit.\15\
---------------------------------------------------------------------------
    \14\40 CFR 270(c).
    \15\RCRA section 3005(e)(1).
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                            COMMITTEE ACTION

    On February 7, 2023, the Subcommittees on Environment, 
Manufacturing, and Critical Materials and Energy, Climate, and 
Grid Security jointly held a hearing on 17 separate pieces of 
legislation, including a pre-introduced ``Discussion Draft'' 
version of H.R. 1070. The Subcommittee received testimony from:
           The Honorable Mark Menezes, Former U.S. 
        Deputy Secretary of Energy, Department of Energy;
           The Honorable Bernard McNamee, Former 
        Commissioner, Federal Energy Regulatory Commission;
           Jeffrey Eshelman, II, President and Chief 
        Executive Officer, Independent Petroleum Association of 
        America;
           Katie Sweeney, Executive Vice President and 
        Chief Operating Officer, National Mining Association;
           Raul Garcia, Legislative Director Healthy 
        Communities, Earthjustice; and
           Tyson Slocum, Director of the Energy 
        Program, Public Citizen.
    On February 28, 2023, the Subcommittee on Environment, 
Manufacturing and Critical Materials met in open markup session 
and forwarded H.R. 1070, with amendment, to the full Committee 
by a record vote of 13 yeas and 6 nays. On March 9, 2023, the 
full Committee on Energy and Commerce met in open markup 
session and ordered H.R. 1070, with amendment, favorably 
reported to the House by a record vote of 27 yeas and 22 nays.

                            COMMITTEE VOTES

    Clause 3(b) of rule XIII requires the Committee to list the 
record votes on the motion to report legislation and amendments 
thereto. The following reflects the record votes taken during 
the Committee consideration:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Pursuant to clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII, the Committee held hearings and made findings that 
are reflected in this report.

           NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND 
                            TAX EXPENDITURES

    Pursuant to clause 3(c)(2) of rule XIII, the Committee 
finds that H.R. 1070 would result in no new or increased budget 
authority, entitlement authority, or tax expenditures or 
revenues.

                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

    Pursuant to clause 3(c)(3) of rule XIII, at the time this 
report was filed, the cost estimate prepared by the Director of 
the Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974 was not available.

                       FEDERAL MANDATES STATEMENT

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    Pursuant to clause 3(c)(4) of rule XIII, the general 
performance goal or objective of this legislation is to 
increase American energy production and restore energy 
leadership by amending the Solid Waste Disposal Act to provide 
the owner or operator of a critical energy resource facility an 
interim permit, under Subtitle C of such Act, that is subject 
to final approval by the Administrator of the Environmental 
Protection Agency or a State with primary enforcement 
responsibility.

                    DUPLICATION OF FEDERAL PROGRAMS

    Pursuant to clause 3(c)(5) of rule XIII, no provision of 
H.R. 1070 is known to be duplicative of another Federal 
program, including any program that was included in a report to 
Congress pursuant to section 21 of Public Law 111-139 or the 
most recent Catalog of Federal Domestic Assistance.

              RELATED COMMITTEE AND SUBCOMMITTEE HEARINGS

    Pursuant to clause 3(c)(6) of rule XIII:
    (1) the following hearing was used to develop or consider 
H.R. 1070:
    On January 31, 2023, the Committee on Energy and Commerce 
held an oversight hearing, entitled: ``American Energy 
Expansion: Strengthening Economic, Environmental, and National 
Security''. The Committee received testimony from:
           The Honorable Paul Dabbar, Former U.S. 
        Undersecretary of Energy, Department of Energy.
           Donna Jackson, Director of Membership 
        Development, National Center for Public Policy 
        Research, Project 21.
           Robert McNally, President, Rapidan Energy 
        Group; and
           Ana Unruh Cohen, Ph.D., Former Staff 
        Director, U.S. House Select Committee on the Climate 
        Crisis.
    (2) The following related hearings were held:
    On February 7, 2023, the Subcommittees on Environment, 
Manufacturing, and Critical Materials and Energy, Climate, and 
Grid Security jointly held a hearing on 17 separate pieces of 
legislation, including H.R. 1070. The Subcommittee received 
testimony from:
           The Honorable Mark Menezes, Former U.S. 
        Deputy Secretary of Energy, Department of Energy;
           The Honorable Bernard McNamee, Former 
        Commissioner, Federal Energy Regulatory Commission;
           Jeffrey Eshelman, II, President and Chief 
        Executive Officer, Independent Petroleum Association of 
        America;
           Katie Sweeney, Executive Vice President and 
        Chief Operating Officer, National Mining Association;
           Raul Garcia, Legislative Director Healthy 
        Communities, Earthjustice; and
           Tyson Slocum, Director of the Energy 
        Program, Public Citizen.
    On September 16, 2020; the Subcommittee on Environment held 
a hearing entitled, ``Building a 100 Percent Clean Economy: 
Opportunities for an Equitable, Low-Carbon Recovery.'' The 
witnesses included:
           Lonnie R. Stephenson, International 
        President, International Brotherhood of Electrical 
        Workers;
           Denise Fairchild, Ph.D., President & Chief 
        Executive Officer, Emerald Cities Collaborative; and
           Michelle Michot Foss, Ph.D., Fellow in 
        Energy & Minerals, Baker Institute for Public Policy, 
        Center for Energy Studies, Rice University.

                        COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d)(1) of rule XIII, the Committee 
adopts as its own the cost estimate prepared by the Director of 
the Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974. At the time this report was 
filed, the estimate was not available.

       EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

    Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, the 
Committee finds that H.R. 1070 contains no earmarks, limited 
tax benefits, or limited tariff benefits.

                      ADVISORY COMMITTEE STATEMENT

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

    H.R. 1070 contains one section with two distinct amendments 
to section 3005(e) of the Solid Waste Disposal Act, related to 
the creation of Interim status RCRA Subtitle C permits.
    First, section 1 adds critical energy resource facilities 
to the list of those facilities treated as having been issued a 
RCRA interim status permit until (1) the final administrative 
disposition of their permit application or (2) a legal 
demonstration that the owner or operator failed to provide 
information needed to process their permit application.
    Second, section 1 adds definitions of ``critical energy 
resource'' and ``critical energy resource facility''. Section 1 
defines a ``critical energy resource'' as any energy resource 
that, as determined by the Secretary of Energy, is essential to 
the energy sector and energy systems of the United States and 
whose supply chain is vulnerable to disruption. The Committee 
intends this definition to be interpreted broadly and points to 
the word ``any'' as proof of this desire. This designation is 
not limited to the use of one kind of fuel but instead includes 
all types of fuels that are important to our nation's energy 
sector and system and that might be vulnerable to disruption. 
Moreover, this designation is purposely the domain of the 
Secretary of Energy--not the Secretary of Interior or 
Environmental Protection Agency--who has been given statutory 
responsibility of and care for the energy sector and systems of 
the United States. The definition of ``critical energy resource 
facility'' is defined to be a facility that processes or 
refines a critical energy resource. This definition, too, is 
not limited to the use of one kind of fuel or manufacturing 
practice but instead to provide the greatest number of permit 
compliant options that might address our nation's energy sector 
and system and that might be vulnerable to disruption.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    With respect to the requirement of clause 3(e) of rule XIII 
of the Rules of the House of Representatives, changes in 
existing law made by the bill, as reported, this section was 
not made available to the Committee in time for the filing of 
this report.

                             MINORITY VIEWS

    We oppose H.R. 1070, which amends the Solid Waste Disposal 
Act (SWDA) to provide the owner or operator of a critical 
energy resource facility an interim permit under Subtitle C 
that is subject to final approval by the Administrator of the 
Environmental Protection Agency, and for other purposes. The 
bill would create temporary waivers for vaguely defined 
``critical energy resource facilities'', creating a giant 
loophole for any industry that claims to be working on critical 
energy resources, allowing such industry to mismanage its waste 
and get a temporary permit to do so.

                               BACKGROUND

    The SWDA of 1965 was amended by the Resource Conservation 
and Recovery Act (RCRA) which is what is more commonly used to 
describe the law governing the disposal of solid and hazardous 
waste. RCRA set national goals for protecting human health and 
the environment from the potential hazards of waste disposal, 
conserving energy and natural resources, reducing the amount of 
waste generated, and ensuring that wastes are managed in an 
environmentally-sound manner.\1\ Subtitle C established the 
``cradle to grave'' system for controlling hazardous waste from 
the time it is generated until it is ultimately disposed. 
Permits are a critical component of the cradle to grave system 
and follow the principle of cooperative federalism. While EPA 
is tasked with setting minimum federal standards, authorized 
states implement and enforce those standards and issue relevant 
permits.
---------------------------------------------------------------------------
    \1\Environmental Protection Agency, EPA History: Resoure 
Conservation and Recovery Act (www.epa.gov/history/epa-history-
resource-conservation-and-recovery-act#::text=The%20
Resource%20Conservation%20and%20Recovery,of%20municipal%20and%20industri
al%20waste) (accessed Mar. 21, 2023).
---------------------------------------------------------------------------
    Like many of the bills under consideration by the 
Committee, H.R. 1070 is an overly broad solution in search of a 
problem. The author of this bill stated that critical energy 
resource facilities are being bogged down by the lengthy 
permitting process for RCRA permits, often taking many years to 
secure, delaying the process for developing critical 
resources.\2\ To date, the Majority has not been able to 
substantiate such claims. In fact, energy generators do not 
usually apply for RCRA permits, but rather ship their waste to 
RCRA certified sites to manage the waste. Furthermore, RCRA 
already includes short term timelines for on-site waste storage 
for both small and large quantity hazardous waste generators. 
Small quantity generators are allowed to hold waste on-site for 
up to 180 days (or 270 if the shipping distance is greater than 
200 miles) and large quantity generators are allowed to hold 
waste on-site for up to 90 days.\3\ These flexible short-term 
options allow many generators to ship waste to an appropriate 
facility before ever needing a RCRA permit.
---------------------------------------------------------------------------
    \2\House Committee on Energy and Commerce, Statement of 
Representative Buddy Carter, Markup of Seven Bills, 118th Cong. (Feb. 
28, 2023).
    \3\Environmental Protection Agency, Categories of Hazardous Waste 
Generators (www.epa.gov/hwgenerators/categories-hazardous-waste-
generators) (accessed Mar. 21, 2023).
---------------------------------------------------------------------------
    In addition, concerns that RCRA permits are delaying the 
mining and processing of critical minerals, are also misplaced. 
For over 40 years, wastes from the extraction, beneficiation, 
and processing of ores and minerals have been exempted from 
Subtitle C of RCRA.\4\
---------------------------------------------------------------------------
    \4\Environmental Protection Agency, Special Wastes (www.epa.gov/hw/
special-wastes) (accessed Mar. 21, 2023).
---------------------------------------------------------------------------

                          SUMMARY OF H.R. 1070

    Section 1 of H.R. 1070 amends Section 3005(e) of the SWDA 
to grant interim permits to so-called critical energy resource 
facilities, and adds vague definitions of ``critical energy 
resource'' and ``critical energy resource facility'' to the 
statute.
    Despite EPA administering the SWDA, the bill defines 
``critical energy resource'' as ``. . . any energy resource 
that is essential to the energy sector and energy systems of 
the United States, and the supply chain of which is vulnerable 
to disruption,'' as determined by the Secretary of Energy. The 
bill does not define, provide parameters, or metrics for the 
Secretary to use in making such determinations, essentially 
allowing the Secretary to deem almost anything a ``critical 
energy resource,'' ``essential to the energy sector and energy 
system of the United States,'' and ``vulnerable to supply chain 
disruptions.'' The bill fails to include any public review, or 
accountability measures related to the Secretary's 
determinations. And putting the Secretary of Energy in charge 
of determining which environmental permits EPA and states are 
allowed to require, sets a troubling precedent.
    Due to the all-encompassing definition of ``critical energy 
resource,'' essentially any category of industrial facility 
could be considered critical and would be exempt from required 
permits for treatment, storage, and disposal of hazardous 
waste. Based on these definitions, wastes from the following 
manufacturing and industrial processes could benefit from the 
legislation's regulatory loophole: spent solvent wastes, 
electroplating and other metal finishing wastes, dioxin-bearing 
wastes, chlorinated aliphatic hydrocarbons production, wood 
preserving wastes, petroleum refinery wastewater treatment 
sludges, multisource leachate, wood preservation, organic 
chemicals manufacturing, pesticides manufacturing, petroleum 
refining, veterinary pharmaceuticals manufacturing, inorganic 
pigment manufacturing, inorganic chemicals manufacturing, 
explosives manufacturing, iron and steel production, primary 
aluminum production, secondary lead processing, ink 
formulation, and coking (processing of coal to produce 
coke).\5\ Furthermore, any facility that processes these 
hazardous wastes--like solid waste incinerators--could be 
exempted from required permits for hazardous waste treatment, 
storage, and disposal under RCRA.
---------------------------------------------------------------------------
    \5\40 CFR Sec. 261.31; 40 CFR Sec. 261.32.
---------------------------------------------------------------------------
    Since H.R. 1070 grants the Secretary of Energy enormous 
latitude to determine what qualifies as a critical energy 
resource, the aforementioned list demonstrates the wide range 
of hazardous waste categories that could be granted interim 
operating permits without appropriate RCRA safeguards.

                               CONCLUSION

    Despite the Majority's claims that RCRA permitting is 
holding up critical energy resource development, this bill is 
nothing more than a solution is search of a problem. The RCRA 
program is an example of cooperative federalism at work, with 
flexible timelines, state led programs, and clear guidelines 
for applying for and receiving permits. At best, this is a 
misguided bill, misunderstanding how our country manages 
hazardous waste, but at worst it represents an abandonment of 
our federal responsibility to safely manage hazardous waste to 
protect public health and safety.
    For the reasons stated above, we dissent from the views 
contained in the Committee's report.
                                        Frank Pallone, Jr.,
                   Ranking Member Committee on Energy and Commerce.

                                  [all]