Sec. 7. Consideration of cumulative impacts and persistent violations in certain permitting decisions
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Section 402 of the Federal Water Pollution Control Act ( 33 U.S.C. 1342 ) is amended— by striking the section designation and heading and all that follows through Except as in subsection (a)(1) and inserting the following: Except as ; in subsection (a)— in paragraph (1)— by striking upon condition that such discharge will meet either
(A)all and inserting the following: subject to the conditions that— the discharge will achieve compliance with, as applicable— all ; by striking 403 of this Act, or
(B)prior and inserting the following: 403; or prior ; and by striking this Act. and inserting the following: this Act; and with respect to the issuance or renewal of the permit— based on an analysis by the Administrator of existing water quality and the potential cumulative impacts (as defined in section 501 of the Clean Air Act ( 42 U.S.C. 7661 )) of the discharge, considered in conjunction with the designated and actual uses of the impacted navigable water, there exists a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation; or if the Administrator determines that, due to those potential cumulative impacts, there does not exist a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation, the permit or renewal includes such terms and conditions as the Administrator determines to be necessary to ensure a reasonable certainty of no harm. ; and in paragraph (2), by striking assure compliance with the requirements of paragraph
(1)of this subsection, including conditions on data and information collection, reporting, and such other requirements as he deems appropriate. and inserting the following: ensure compliance with the requirements of paragraph (1), including— conditions relating to— data and information collection; reporting; and such other requirements as the Administrator determines to be appropriate; and additional controls or pollution prevention requirements. ; and in subsection (b)— in each of paragraphs (1)(D), (2)(B), and
(3)through (7), by striking the semicolon at the end and inserting a period; in paragraph (8), by striking ; and at the end and inserting a period; and by adding at the end the following: To ensure that no permit will be issued or renewed if, with respect to an application for the permit, the State determines, based on an analysis by the State of existing water quality and the potential cumulative impacts (as defined in section 501 of the Clean Air Act ( 42 U.S.C. 7661 )) of the discharge, considered in conjunction with the designated and actual uses of the impacted navigable water, that the terms and conditions of the permit or renewal would not be sufficient to ensure a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation. . Section 501 of the Clean Air Act ( 42 U.S.C. 7661 ) is amended— in the matter preceding paragraph (1), by striking As used in this title— and inserting In this title: ; by redesignating paragraphs (2), (3), and
(4)as paragraphs (3), (5), and (4), respectively, and moving the paragraphs so as to appear in numerical order; and by inserting after paragraph
(1)the following: The term cumulative impacts means any exposure to a public health or environmental risk, or other effect occurring in a specific geographical area, including from an emission, discharge, or release— including— environmental pollution released— routinely; accidentally; or otherwise; and from any source, whether single or multiple; and as assessed based on the combined past, present, and reasonably foreseeable emissions and discharges affecting the geographical area; and evaluated taking into account sensitive populations and other factors that may heighten vulnerability to environmental pollution and associated health risks, including socioeconomic characteristics. . Section 502(b) of the Clean Air Act ( 42 U.S.C. 7661a(b) ) is amended— in paragraph (5)— in subparagraphs
(A)and (C), by striking assure each place it appears and inserting ensure ; and by striking subparagraph
(F)and inserting the following: ensure that no permit will be issued or renewed, as applicable, if— with respect to an application for a permit or renewal of a permit for a major source, the permitting authority determines under paragraph (9)(A)(i)(II)(bb) that the terms and conditions of the permit or renewal would not be sufficient to ensure a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation, of the applicable census block groups or Tribal census block groups (as those terms are defined by the Director of the Bureau of the Census); or the Administrator objects to the issuance of the permit in a timely manner under this title. ; and by striking paragraph
(9)and inserting the following: With respect to any permit or renewal of a permit, as applicable, for a major source, a requirement that the permitting authority shall— in determining whether to issue or renew the permit— evaluate the potential cumulative impacts of the major source, as described in the applicable cumulative impacts analysis submitted under section 503(b)(3), taking into consideration other pollution sources and risk factors within a community; if, due to those potential cumulative impacts, the permitting authority cannot determine that there exists a reasonable certainty of no harm to the health of the general population, or to any potentially exposed or susceptible subpopulation, of any census block groups or Tribal census block groups (as those terms are defined by the Director of the Bureau of the Census) located in, or immediately adjacent to, the area in which the major source is, or is proposed to be, located— include in the permit or renewal such standards and requirements (including additional controls or pollution prevention requirements) as the permitting authority determines to be necessary to ensure a reasonable certainty of no such harm; or if the permitting authority determines that standards and requirements described in item
(aa)would not be sufficient to ensure a reasonable certainty of no such harm, deny the issuance or renewal of the permit; determine whether the applicant is a persistent violator, based on such criteria relating to the history of compliance by an applicant with this Act as the Administrator shall establish by not later than 180 days after the date of enactment of the Environmental Justice for All Act; if the permitting authority determines under subclause
(III)that the applicant is a persistent violator and the permitting authority does not deny the issuance or renewal of the permit pursuant to subclause (II)(bb)— require the applicant to submit a plan that describes— if the applicant is not in compliance with this Act, measures the applicant will carry out to achieve that compliance, together with an approximate deadline for that achievement; measures the applicant will carry out, or has carried out to ensure the applicant will remain in compliance with this Act, and to mitigate the environmental and health effects of noncompliance; and the measures the applicant has carried out in preparing the plan to consult or negotiate with the communities affected by each persistent violation addressed in the plan; and once such a plan is submitted, determine whether the plan is adequate to ensuring that the applicant— will achieve compliance with this Act expeditiously; will remain in compliance with this Act; will mitigate the environmental and health effects of noncompliance; and has solicited and responded to community input regarding the plan; and deny the issuance or renewal of the permit if the permitting authority determines that— the plan submitted under subclause (IV)(aa) is inadequate; or the applicant has submitted a plan on a prior occasion, but continues to be a persistent violator; and no indication exists of extremely exigent circumstances excusing the persistent violations; and in the case of such a permit with a term of 3 years or longer, require permit revisions in accordance with subparagraph (B). A revision described in subparagraph (A)(ii) shall occur as expeditiously as practicable and consistent with the procedures established under paragraph
(6)but not later than 18 months after the promulgation of such standards and regulations. A revision under this paragraph shall not be required if the effective date of the standards or regulations is a date after the expiration of the permit term. A permit revision under this paragraph shall be treated as a permit renewal if it complies with the requirements of this title regarding renewals. . Section 503(b) of the Clean Air Act ( 42 U.S.C. 7661b(b) ) is amended by adding at the end the following: The regulations required by section 502(b) shall include a requirement that an applicant for a permit or renewal of a permit for a major source shall submit, together with the compliance plan required under this subsection, a cumulative impacts analysis for each census block group or Tribal census block group (as those terms are defined by the Director of the Bureau of the Census) located in, or immediately adjacent to, the area in which the major source is, or is proposed to be, located that analyzes— community demographics and locations of community exposure points, such as schools, day care centers, nursing homes, hospitals, health clinics, places of religious worship, parks, playgrounds, and community centers; air quality and the potential effect on that air quality of emissions of air pollutants (including pollutants listed under section 108 or 112) from the major source, including in combination with existing sources of pollutants; the potential effects on soil quality and water quality of emissions of lead and other air pollutants that could contaminate soil or water from the major source, including in combination with existing sources of pollutants; and public health and any potential effects on public health from the major source. .
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Sec. 7
Consideration of cumulative impacts and persistent violations in certain permitting decisions
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