Primacy Certainty Act of 2023

II 118TH CONGRESS 1ST SESSION S. 1718 To amend the Safe Drinking Water Act to clarify the requisite timeline for making a decision on the approval or disapproval of a State under- ground injection control program, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 18, 2023 Mr. SULLIVAN (for himself, Ms. LUMMIS, and Mr. RICKETTS) introduced the following bill; which was read twice and referred to the Committee on En- vironment and Public Works A BILL To amend the Safe Drinking Water Act to clarify the req- uisite timeline for making a decision on the approval or disapproval of a State underground injection control program, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Primacy Certainty Act 4 of 2023’’. 5 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1718 IS SEC. 2. STATE PRIMARY ENFORCEMENT RESPONSIBILITY 1 FOR CLASS VI WELLS. 2 (a) AMENDMENTS.—Section 1422(b) of the Safe 3 Drinking Water Act (42 U.S.C. 300h–1(b)) is amended— 4 (1) in paragraph (2)— 5 (A) by striking ‘‘(2) Within ninety days’’ 6 and inserting the following: 7 ‘‘(2) REQUIRED TIMELINE.— 8 ‘‘(A) IN GENERAL.—Within 90 days’’; and 9 (B) by adding at the end the following: 10 ‘‘(B) NOTICE RELATED TO STATE PRIMARY 11 ENFORCEMENT RESPONSIBILITY FOR CLASS VI 12 WELLS.— 13 ‘‘(i) DEFINITION OF CLASS VI 14 WELL.—In this subparagraph, the term 15 ‘Class VI well’ has the meaning given the 16 term in section 40306(a) of the Infrastruc- 17 ture Investment and Jobs Act (42 U.S.C. 18 300h–9(a)). 19 ‘‘(ii) NOTICE TO STATE.—If the Ad- 20 ministrator does not approve, disapprove, 21 or approve in part and disapprove in part 22 the State’s underground injection control 23 program for Class VI wells by not later 24 than 180 days after the date on which the 25 application of the State is submitted under 26 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1718 IS paragraph (1)(A) or notice of the State is 1 submitted under paragraph (1)(B), the Ad- 2 ministrator shall transmit to the State, in 3 writing, a detailed explanation that de- 4 scribes— 5 ‘‘(I) the status of the review of 6 the application or notice, as applica- 7 ble; 8 ‘‘(II) the reason for which a deci- 9 sion with respect to that application 10 or notice has not yet been made; and 11 ‘‘(III) an itemized list of specific 12 deficiencies with the application or no- 13 tice to be addressed to receive ap- 14 proval of that application or notice, in 15 accordance with the requirements of 16 this title. 17 ‘‘(iii) AUTOMATIC APPROVAL FOR 18 CLASS VI WELLS.— 19 ‘‘(I) IN GENERAL.—If the Ad- 20 ministrator has not approved, dis- 21 approved, or approved in part and dis- 22 approved in part a complete applica- 23 tion submitted under paragraph 24 (1)(A) or notice submitted under 25 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1718 IS paragraph (1)(B) of a State’s under- 1 ground injection control program to 2 regulate Class VI wells in writing by 3 not later than the date that is 30 days 4 after the end of the 180-day period 5 described in clause (ii), that applica- 6 tion or notice shall be considered ap- 7 proved by the Administrator if the 8 State has established and imple- 9 mented a primary enforcement au- 10 thority program for 1 or more other 11 classes of underground injection con- 12 trol wells (including adequate record- 13 keeping and reporting) to prevent un- 14 derground injection that endangers 15 drinking water sources. 16 ‘‘(II) DETERMINATION OF COM- 17 PLETENESS.— 18 ‘‘(aa) DEADLINE.—The Ad- 19 ministrator shall determine 20 whether an application submitted 21 under paragraph (1)(A) or notice 22 submitted under paragraph 23 (1)(B) is complete for purposes 24 of subclause (I), and provide no- 25 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1718 IS tice to the State of any defi- 1 ciencies in that application or no- 2 tice, by not later than 10 days 3 after the date on which the State 4 submits the application or notice. 5 ‘‘(bb) FAILURE TO MAKE 6 DETERMINATION CONCERNING 7 COMPLETENESS OF CLASS VI PRI- 8 MACY APPLICATION OR NO- 9 TICE.—If the Administrator has 10 not made a determination under 11 item (aa) by the end of the 10- 12 day period described in that sub- 13 clause, on request of the State 14 that submitted the application or 15 notice, the application or notice 16 shall be considered administra- 17 tively complete. 18 ‘‘(C) PENDING PERMITS AND APPLICA- 19 TIONS FOR CLASS VI WELLS.—With respect to 20 Class VI wells (as defined in subparagraph 21 (B)(i)) and the efforts of a State to obtain from 22 the Administrator primary enforcement respon- 23 sibility of Class VI wells (as so defined), fol- 24 lowing the approval of an application under 25 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1718 IS paragraph (1)(A) or notice under paragraph 1 (1)(B) for a State, the Administrator shall, as 2 expeditiously as possible— 3 ‘‘(i) render a decision on any pending 4 permits or applications for the operation of 5 Class VI wells (as so defined) in the State 6 prior to that State assuming primary en- 7 forcement responsibility for Class VI wells 8 (as so defined); and 9 ‘‘(ii) transfer to that State all pending 10 permits, applications, and other informa- 11 tion relevant to operating an underground 12 injection control program to regulate Class 13 VI wells (as so defined) not already in pos- 14 session of the State following that State 15 assuming primary enforcement responsi- 16 bility for Class VI wells (as so defined). 17 ‘‘(D) GROUNDS FOR DENIAL OF CLASS VI 18 WELL APPLICATIONS.—A denial or approval in 19 part and disapproval in part with respect to an 20 application or notice of a State to operate an 21 underground injection control program to regu- 22 late Class VI wells (as defined in subparagraph 23 (B)(i)) shall be based solely on a finding by the 24 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1718 IS Administrator that the State does not meet the 1 criteria described in paragraph (1)(A). 2 ‘‘(E) NO CONDITIONS FOR DECISIONS.— 3 The Administrator shall not condition the ap- 4 proval of an application or notice of a State to 5 operate an underground injection control pro- 6 gram to regulate Class VI wells (as defined in 7 subparagraph (B)(i)) on the inclusion of— 8 ‘‘(i) provisions not otherwise included 9 in the application or notice on the date of 10 submission; or 11 ‘‘(ii) any other provision not otherwise 12 explicitly required by this title.’’; and 13 (2) by adding at the end the following: 14 ‘‘(4) PREAPPLICATION ACTIVITIES FOR CLASS 15 VI WELLS.—With respect to Class VI wells (as de- 16 fined in paragraph (2)(B)(i)) and the efforts of a 17 State to obtain from the Administrator primary en- 18 forcement responsibility of Class VI wells (as so de- 19 fined), the Administrator, acting through the indi- 20 vidual designated under paragraph (5), shall work as 21 expeditiously as possible with States to complete any 22 necessary activities prior to the submission of an ap- 23 plication under paragraph (1)(A) or notice under 24 paragraph (1)(B), taking into consideration the need 25 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1718 IS for a thorough and detailed application or notice, as 1 applicable. 2 ‘‘(5) APPLICATION COORDINATION FOR CLASS 3 VI WELLS.—With respect to underground injection 4 control programs of States, or portions of under- 5 ground injection control programs of States, that 6 regulate Class VI wells (as defined in paragraph 7 (2)(B)(i)), the Administrator shall designate 1 indi- 8 vidual to be responsible for coordinating for each 9 State— 10 ‘‘(A) in accordance with paragraph (4), the 11 completion of any necessary activities prior to 12 the submission of an application submitted 13 under paragraph (1)(A) or notice submitted 14 under paragraph (1)(B); 15 ‘‘(B) the review of an application sub- 16 mitted under paragraph (1)(A) or notice sub- 17 mitted under paragraph (1)(B); and 18 ‘‘(C) the hiring of any additional staff nec- 19 essary to carry out subparagraphs (A) and (B). 20 ‘‘(6) EVALUATION OF RESOURCES.—Not later 21 than 90 days after the date of enactment of this 22 paragraph, the Administrator, in consultation with 23 the individual designated under paragraph (5), shall 24 submit to the Committees on Environment and Pub- 25 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1718 IS lic Works and Appropriations of the Senate and the 1 Committees on Energy and Commerce and Appro- 2 priations of the House of Representatives a report 3 that describes— 4 ‘‘(A) the availability of staff and resources 5 to promptly carry out the requirements of the 6 amendments made by section 2(a) of the Pri- 7 macy Certainty Act of 2023; and 8 ‘‘(B) any funding necessary to promptly 9 carry out the requirements of the amendments 10 made by section 2(a) of the Primacy Certainty 11 Act of 2023.’’. 12 (b) USE OF IIJA FUNDS.— 13 (1) USE FOR REPORT.—Amounts made avail- 14 able to carry out section 40306(b) of the Infrastruc- 15 ture Investment and Jobs Act (42 U.S.C. 300h– 16 9(b)) may, beginning on the date of enactment of 17 this Act, be used to carry out paragraph (6) of sec- 18 tion 1422(b) of the Safe Drinking Water Act (42 19 U.S.C. 300h–1(b)). 20 (2) CONFORMING AMENDMENT.—Section 21 40306(b) of the Infrastructure Investment and Jobs 22 Act (42 U.S.C. 300h–9(b)) is amended by inserting 23 ‘‘(including carrying out paragraph (6) of section 24 1422(b) of the Safe Drinking Water Act (42 U.S.C. 25 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1718 IS 300h–1(b)) in accordance with section 2(b)(1) of the 1 Primacy Certainty Act of 2023)’’ after ‘‘2010))’’. 2 (c) RULES OF CONSTRUCTION.— 3 (1) DEFINITIONS.—In this subsection: 4 (A) ADMINISTRATOR.—The term ‘‘Admin- 5 istrator’’ means the Administrator of the Envi- 6 ronmental Protection Agency. 7 (B) CLASS VI WELL.—The term ‘‘Class VI 8 well’’ has the meaning given the term in section 9 40306(a) of the Infrastructure Investment and 10 Jobs Act (42 U.S.C. 300h–9(a)). 11 (2) ABILITY TO DENY OR WITHDRAW STATE 12 PRIMARY ENFORCEMENT RESPONSIBILITY.—Nothing 13 in the amendments made by this section limits the 14 ability of the Administrator— 15 (A) to deny an application under para- 16 graph (1)(A) of subsection (b) of section 1422 17 of the Safe Drinking Water Act (42 U.S.C. 18 300h–1) or notice under paragraph (1)(B) of 19 that subsection of a State to operate an under- 20 ground injection control program to regulate 21 Class VI wells; or 22 (B) to revoke primary enforcement respon- 23 sibility in accordance with that Act (42 U.S.C. 24 300f et seq.). 25 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1718 IS (3) APPLICABILITY TO NEW SUBMISSIONS.— 1 The amendments made by this section shall apply to 2 all applications under paragraph (1)(A) of sub- 3 section (b) of section 1422 of the Safe Drinking 4 Water Act (42 U.S.C. 300h–1) and notices under 5 paragraph (1)(B) of that subsection for underground 6 injection control programs of States, or portions of 7 underground injection control programs of States, 8 that regulate Class VI wells submitted to the Admin- 9 istrator pursuant to that section on and after the 10 date of enactment of this Act. 11 (4) APPLICABILITY TO PRIOR SUBMISSIONS.— 12 With respect to applications under paragraph (1)(A) 13 of section 1422(b) of the Safe Drinking Water Act 14 (42 U.S.C. 300h–1(b)) and notices under paragraph 15 (1)(B) of that section for underground injection con- 16 trol programs, or portions of underground injection 17 control programs, that regulate Class VI wells that 18 were submitted to the Administrator, but not ap- 19 proved, before the date of enactment of this Act— 20 (A) the 180-day period described in para- 21 graph (2)(B)(ii) of that section shall begin on 22 the date of enactment of this Act; and 23 (B) the Administrator shall process and 24 make decisions, pursuant to the requirements of 25 VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1718 IS this Act and the amendments made by this Act, 1 on those applications and notices in the order 2 in which the applications and notices were sub- 3 mitted. 4 Æ VerDate Sep 11 2014 01:13 Jun 10, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\S1718.IS S1718 pbinns on DSKJLVW7X2PROD with $$_JOB