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EPA Regulations:
Too Much, Too Little, or On Track?
James E. McCarthy
Specialist in Environmental Policy
Claudia Copeland
Specialist in Resources and Environmental Policy
March 21September 15, 2011
Congressional Research Service
7-5700
www.crs.gov
R41561
CRS Report for Congress
Prepared for Members and Committees of Congress
c11173008
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EPA Regulations: Too Much, Too Little, or On Track?
Summary
In the two and one-half years since Barack Obama was sworn in as President, the Environmental Protection
Protection Agency (EPA) has proposed and promulgated numerous regulations implementing the pollution
pollution control statutes enacted by Congress. Critics have reacted strongly. Many, both within Congress
Congress and outside of it, have accused the agency of reaching beyond the authority given it by Congress
Congress and ignoring or underestimating the costs and economic impacts of proposed and promulgated
rules. Republican leaders have promised
promulgated rules. The House has conducted vigorous oversight of the agency in the 112th
Congress,
and the House has already voted to and has approved several bills that would overturn specific regulations and toor limit the
agency’s
authority. Particular attention is being paid to the Clean Air Act, under which EPA has moved
moved forward with the first federal controls on emissions of greenhouse gases and addressed
conventional pollutants from a number of industries.
Environmental groups disagree that the agency has overreached, and EPA itself maintains that its
pace of regulation under the Clean Air Act is actually slower than the pace during the first years
of the Clinton and George W. Bush Administrations. The agency states that critics’ focus on the
states that critics’ focus
on the cost of controls obscures the benefits of new regulations, which, it estimates, far exceed
the costs;
and it maintains that pollution control is an important source of economic activity,
exports, and
American jobs. American jobs. Further, the agency and its supporters say that EPA is carrying out
the mandates detailed by Congress in the federal environmental statutes.
This report provides background information on recent EPA rulemaking to help address these
issues. It examines 4338 major or controversial regulatory actions taken by or under development at
EPA since January 2009, providing details on the regulatory action itself, presenting an estimated
timeline for completion of the rule (including identification of related court or statutory
deadlines), and, in general, providing EPA’s estimates of costs and benefits, where available.
The report also discusses factors that affect the timeframe in which regulations take effect,
including statutory and judicial deadlines, public comment periods, judicial review, and
permitting procedures, the net results of which are that existing facilities are likely to have several
years before being required to comply with most of the regulatory actions under discussion.
Unable to account for such factors, which will vary from case to case, timelines that show dates
for proposal and promulgation of EPA standards effectively underestimate the complexities of the
regulatory process and overstate the near-term impact of many of the regulatory actions.
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EPA Regulations: Too Much, Too Little, or On Track?
Contents
Introduction ...................................................................................................................................... 1
Is EPA on Target or Overreaching? Conflicting Views ............................................................. 1
What This Report Does ............................................................................................................. 3
A Few Caveats Regarding Timing .............................................................................................3 4
Conclusions ............................................................................................................................... 5
Organization of the Report ........................................................................................................ 6
Clean Air Act and Climate Change ..................................................................................................6 7
Climate Change ......................................................................................................................... 76
Renewable Fuels ...................................................................................................................9... 10
Ambient Air Quality Standards ............................................................................................... 1011
Electric Generating Units ........................................................................................................ 12 10
Boilers and Incinerators ...................................................................................................... 11
Other .................................. 13
Other................................................................................................ 13
Clean Water Act ......................................................... 14
Clean Water Act ............................................................... 14
Safe Drinking Water Act ........................................................................................................... 19 16
Toxic Substances Control Act (TSCA) .......................................................................................... 21 19
RCRA/Superfund........................................................................................................................... 22 20
Tables
Table 1. Recent Rules Proposed, Promulgated, or Under Development, by EPA ......................... 25 22
Contacts
Author Contact Information ....................................................................................................... 30.... 32
Key Policy and Legal Staff ........................................................................................................... 30. 32
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EPA Regulations: Too Much, Too Little, or On Track?
Introduction
Is EPA on Target or Overreaching? Conflicting Views
In the two and one-half years since Barack Obama was sworn in as President of the United States, the
the Environmental Protection Agency (EPA) has proposed and promulgated numerous regulations
under the 11 pollution control statutes Congress has directed it to implement. 1 Although most of
these 1 Most of these
statutes have not been amended for more than a decade, yet the agency is still addressing for the
first time numerous directives given it by Congress. The statutes also mandate that EPA conduct
periodic reviews of many of the standards it issues, and the agency is doing so.
Although supporters would say that EPA is just doing its job, the agency’s recent regulatory
actions have drawn attention for several reasons. In some cases, such as regulation of greenhouse
gas emissions, they represent a new departure; based. Based on a 2007 Supreme Court ruling that the
emissions in question
greenhouse gas emissions are air pollutants under the Clean Air Act’s definition of that term,2 the
agency has undertaken numerous regulatory actions setting emission standards or laying the
framework for a future regulatory structure. In other cases, the agency is revisiting emissions,
effluent, and waste management regulatory decisions made during earlier Administrations and
proposing more stringent standards to address pollution that persists as long as 40 years after
Congress directed the agency to take action. These actions are being driven by statutory
requirements to reexamine regulations, by court decisions, or because of changing technologies or
new scientific information.
EPA’s actions, both individually and in sum, have generated controversy. The Wall Street Journal,
calling the current scale of EPA regulatory actions “unprecedented,” says that the agency “has
turned a regulatory firehose on U.S. business …”3 and, regarding proposed regulatory actions
affecting electric generating units, it says “the EPA’s regulatory cascade is a clear and present
danger to the reliability and stability of the U.S. power system and grid….”3 Affected parties, such as the National
Petrochemical & Refiners Association, have labeled the agency’s actions “overreaching
government regulation” and “a clear distortion of current environmental law.”4 The American
Enterprise Institute has stated that EPA “is engaged in a series of rule-making proceedings of
extraordinary scope and ambition.”5
Both Democrats and Republicans in Congress have expressed concerns, through bipartisan letters
commenting on proposed regulations and through introduced legislation that would delay, limit,
or prevent certain EPA actions.6 Senior Republicans in the House and Senate have stated that they
1
Affected parties, such as the National Petrochemical &
Refiners Association, have labeled the agency’s actions “overreaching government regulation”
and “a clear distortion of current environmental law,” 6 while the National Mining Association has
said, “… even at a time of great economic stress, EPA is poised to enact a series of back-door
mandates that threaten to cost millions of American jobs, and increase the cost of their electricity
while they’re at it..”7
1
For a summary of each of the 11 statutes and their principal requirements, see CRS Report RL30798, Environmental
Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency, coordinated by David M.
Bearden.
2
See CRS Report R40984, Legal Consequences of EPA’s Endangerment Finding for New Motor Vehicle Greenhouse
Gas Emissions, by Robert Meltz.
3
The Wall Street Journal, “The EPA Permitorium,” editorial, November 22, 2010.
4
The Wall Street Journal, “An EPA Moratorium,” editorial, August 29, 2011.
5
AEI, “The EPA’s Ambitious Regulatory Agenda,” Conference, November 8, 2010, at http://www.aei.org/event/
100334#doc.
6
NPRA, “NPRA Says Court Decision on GHGs Bad for Consumers,” December 10, 2010, at http://www.npra.org/
newsRoom/?fa=viewCmsItem&title=Latest%20News&articleID=5980.
5
AEI, “The EPA’s Ambitious Regulatory Agenda,” Conference, November 8, 2010, at http://www.aei.org/event/
100334#doc.
6
For a discussion of some of these congressional actions, see CRS Report R41212, EPA Regulation of Greenhouse
Gases: Congressional Responses and Options, by James E. McCarthy and Larry Parker.
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7
National Mining Association, “EPA’s Regulatory Train Wreck,” 2011, http://www.nma.org/pdf/fact_sheets/
(continued...)
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Both Democrats and Republicans in Congress have expressed concerns, through bipartisan letters
commenting on proposed regulations and through introduced legislation that would delay, limit,
or prevent certain EPA actions.8 Senior Republicans in the House and Senate have stated that they
are committed to vigorous oversight of the agency’s actions during the 112th Congress, 79 with
some threatening to withhold funding if the agency continues on its present course. 810
EPA Administrator Lisa Jackson has not been silent as the agency’s actions have come under
attack. In a November 2010 letter to the ranking members of the Energy and Commerce
Committee and its Subcommittee on Oversight and Investigations, she stated:
The pace of EPA’s Clean Air Act regulatory work under this administration is actually not
faster than the pace under either of the two previous administrations. In fact, EPA has
finalized or proposed fewer Clean Air Act rules (87) over the past 21 months than in the first
two years of either President George W. Bush’s administration (146) or President Clinton’s
administration (115).9
Furthermore, addressing only the costs of prospective EPA regulations presents an incomplete
picture, according to the Administrator: the benefits of recent Clean Air Act rules exceed their
cost by 13 to 1, according to EPA documents.10 The November letter also argued that EPA
regulations have a positive impact on employment in the United States. The pollution control
industry is a major source of economic activity, exports, and American jobs, according to
Commerce Department data cited in the Administrator’s letter.11
11
In congressional testimony and other fora, the Administrator has sought to rebut critics’
challenges to EPA’s actions and initiatives.
It’s time for a real conversation about protecting our health and the environment while
growing our economy. EPA’s 40 years of environmental and health protection demonstrate
our nation’s ability to create jobs while we clear our air, water and land…. Telling the truth
about our economy and our environment is about respecting the priorities of the American
people. More than 70 percent of Americans want EPA to continue to do its job effectively.
Those same Americans want to see a robust economic recovery. We have the capacity to do
both things if we don’t let distractions keep us from the real work of creating jobs.12
Environmental groups generally believe that the agency is moving in the right direction, but in
several cases they would like the regulatory actions to be stronger. 12 Many also fear that recent
decisions to delay the issuance or implementation of several standards are bad omens.
Commenting on EPA’s December 2010 request to delay the issuance of standards for boilers,
Clean Air Watch stated, “… there is an unfortunate appearance here that political pressure from
Congress is affecting the situation. That EPA is running scared.”13
It is not this report’s purpose to render a verdict on whether EPA is overreaching, running scared,
or following the directions and using the authorities given it by Congress. Statements
characterizing EPA’s actions, such as those cited above, depend on judgments as to whether the
agency has correctly determined the level of stringency needed to address an environmental
713 Many also fear that recent
(...continued)
epa_tw.pdf.
8
For a discussion of some of these congressional actions, see CRS Report R41212, EPA Regulation of Greenhouse
Gases: Congressional Responses and Options, by James E. McCarthy and Larry Parker, CRS Report R41698, H.R. 1
Full-Year FY2011 Continuing Resolution: Overview of Environmental Protection Agency (EPA) Provisions, by Robert
Esworthy, and CRS Report R41979, Environmental Protection Agency (EPA) FY2012 Appropriations: Overview of
Provisions in H.R. 2584 , by Robert Esworthy.
9
See, for example, Letter of Hon. Fred Upton, Chairman-elect, House Energy and Commerce Committee, and Hon.
James Inhofe, Ranking Member, Senate Environment and Public Works Committee, to EPA Administrator Lisa
Jackson, December 9, 2010, at http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=
d596d5fb-593c-4c99-b0c1-41aab15887b0. See also “A Coming Assault on the E.P.A.,” New York Times, editorial,
December 24, 2010.
810
See letter of Hon. Jerry Lewis to EPA Administrator Lisa P. Jackson, November 29, 2010, p. 2, at http://op.bna.com/
env.nsf/id/jstn-8bnt7t/.
911
Letter of Lisa P. Jackson, EPA Administrator, to Hon. Joe Barton and Hon. Michael C. Burgess, November 8, 2010,
p. 1. According to the letter, “All three counts include all Clean Air Act rules that amend the Code of Federal
Regulations and that require the EPA Administrator’s signature.” Administrator Jackson’s letter was written in
response to an October 14 letter from Reps. Barton and Burgess in which they expressed concern regarding the
cumulative impacts of new regulations being proposed under the Clean Air Act.
10
Ibid.
11
Ibid., p. 2.
1212
Lisa P. Jackson, EPA Administrator, “Telling the Truth about the Environment and Our Economy,” September 2,
2011, http://blog.epa.gov/administrator.
13
See, for example, comments of Clean Air Task Force, Earthjustice, Natural Resources Defense Council, and the
Sierra Club on the proposed emission standards for boilers, as cited in CRS Report R41459, EPA’s Boiler MACT:
Controlling Emissions of Hazardous Air Pollutants, by James E. McCarthy.
13
Clean Air Watch, “EPA Seeks Big Delay in Final Toxic Rule for Boilers,” December 7, 2010, at
http://blogforcleanair.blogspot.com/2010/12/epa-seeks-big-delay-in-final-toxic-rule.html.
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(continued...)
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decisions to delay the issuance or implementation of several standards are bad omens.
Commenting on EPA’s December 2010 request to delay the issuance of standards for boilers,
Clean Air Watch stated, “… there is an unfortunate appearance here that political pressure from
Congress is affecting the situation. That EPA is running scared.”14 The President’s September 2,
2011, decision to withdraw revised air quality standards for ozone that EPA had spent two years
developing renewed these concerns.
It is not this report’s purpose to render a verdict on whether EPA is overreaching, running scared,
or following the directions and using the authorities given it by Congress. Statements
characterizing EPA’s actions, such as those cited above, depend on judgments as to whether the
agency has correctly determined the level of stringency needed to address an environmental
problem, and whether the agency’s actions are justified by the legislative mandates that Congress
has imposed. Congress and the courts may render these judgments.
What This Report Does
This report provides a factual basis for discussion of these issues, which must ultimately be
evaluated on a case-by-case basis. The report identifies and briefly characterizes major regulatory
actions14actions15 promulgated, proposed, or under development by EPA since President Obama’s
inauguration in January 2009. The report
uses data from EPA’s Spring 20102011 Semiannual
Regulatory Agenda15Agenda16 and the list of economically
significant reviews conducted by the Office of
Management and Budget (OMB)1617 to compile a
list of 4338 regulatory actions proposed,
promulgated, or under development by the agency. The list
includes all EPA rules considered
“economically significant” by OMB fromsince January 2009 to December 2010,17 as ,18 as
well as some
others that were not so designated but have been widely discussed.
Each entry in this report (1) gives the name or, where appropriate, the common name of the
regulatory action (e.g., the “Tailoring Rule,” or the “Endangerment Finding”); (2) explains what
the action does; (3) states the current status of the rule or action (e.g., proposed July 6, 2010); (4)
explains the significance of the action, often providing information on estimated costs and
benefits; (5) discusses the timeline for implementation, and whether there is a non-discretionary
congressional deadline or a court order or remand driving its development; and (6) identifies a
CRS analyst who would be the contact for further information. To simplify presentation, in some
cases, we have summarized several separate regulations under one heading.
This is not a complete list of the regulations that EPA has promulgated or proposed during the
first two years of the Obama Administration. Rather, it is an attempt to identify the most
significant and most controversial. A complete list would be substantially longer.
A Few Caveats Regarding Timing
Not all of these rules are Obama Administration initiatives. Many began development under the
Bush Administration, including several that were promulgated under that Administration and
subsequently were vacated or remanded to EPA by the courts. Within the Clean Air Act group, for
example, most of the major rules, including the agency’s boiler rules and two of the major rules
affecting electric power plants (the Clean Air Transport Rule and the MACT rule) fit that
description. Other EPA actions, such as the reconsideration of the ozone air quality standard, have
14
(...continued)
Controlling Emissions of Hazardous Air Pollutants, by James E. McCarthy, p. 15.
14
Clean Air Watch, “EPA Seeks Big Delay in Final Toxic Rule for Boilers,” December 7, 2010, at
http://blogforcleanair.blogspot.com/2010/12/epa-seeks-big-delay-in-final-toxic-rule.html.
15
This report uses the terms “regulatory action,” “regulation,” “rule,” “standard,” and “guidelines” for the actions it
describes. There are slight differences among these terms, which are explained, if necessary to understand how the
regulatory action will be implemented. In general, “regulatory action” is the broadest of the terms and includes each of
the others.
1516
U.S. EPA, Regulatory Plan and Semiannual Regulatory Agenda,: Spring 20102011, at http://www.epa.gov/regulations/
documents/regagendabook-spring10.pdf.
16regulations.gov/#!documentDetail;D=EPAHQ-OA-2011-0592-0001.
17
OMB, Office of Information and Regulatory Affairs (OIRA), Historical Reports at http://www.reginfo.gov/public/
do/eoHistReviewSearch.
1718
OIRA (the regulatory affairs staff within OMB) considers a rule to be “economically significant” if it is “likely to
have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal
governments or communities.” OMB, FAQs/Resources, at http://www.reginfo.gov/public/jsp/Utilities/faq.jsp.
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This is not a complete list of the regulations that EPA has promulgated or proposed during the
Obama Administration. Rather, it is an attempt to identify the most significant and most
controversial. A complete list would be substantially longer.
A Few Caveats Regarding Timing
Not all of these rules are Obama Administration initiatives. Many began development under the
Bush Administration, including several that were promulgated under that Administration and
subsequently were vacated or remanded to EPA by the courts. Within the Clean Air Act group, for
example, most of the major rules, including the agency’s boiler rules and two of the major rules
affecting electric power plants (the Cross-State Air Pollution Rule and the MACT rule) fit that
description. Other EPA actions, such as reconsideration of the ozone air quality standard, have
EPA Regulations: Too Much, Too Little, or On Track?
actually delayed for several years implementation of Bush Administration rules that would have
strengthened existing standards. All of these are described in detail below.
Several other generalizations are worth underlining:
•
Many proposed and “pre-proposal” rules linger for years without being
promulgated; thus, many of the EPA actions described here may not take effect
for some time. 1819 For those rules not yet promulgated, we have focused on rules
that have statutory or court-ordered deadlines and/or that have already been the
subject of significant discussion.
•
If there are no deadlines, we have attempted to provide EPA’s estimate of the
schedule for promulgation. In some cases, EPA has not estimated a promulgation
date. In those instances, we have either provided dates reported in press accounts
or we have discussed the general outlook for promulgation. Experience suggests
that proposal or promulgation may take longer than estimated in cases that do not
have a court-ordered deadline.
•
Although they are the most likely deadlines to be met, even court-ordered dates
for proposal or promulgation may change. It is not uncommon for EPA to request
extensions of time, often due to the need to analyze extensive comments.
•
Promulgation of standards is not the end of the road. Virtually all major EPA
regulatory actions are subjected to court challenge, frequently delaying
implementation for years. As noted earlier, many of the regulatory actions
described here are the result of courts remanding and/or vacating rules
promulgated by previous administrations.
•
In many cases, EPA rules must be adopted by states to which the program has
been delegated. Moreover, many states require that the legislature review new
regulations before the new rules would take effect.
•
Standards for stationary sources under the air, water, and solid waste laws are
generally implemented through permits, which would be individually issued by
state permitting authorities after the standards take effect. When finalized, a
permit would generally include a compliance schedule, typically giving the
19
They may also be substantially altered before they become final, as a result of the proposal and public comment
process, and/or judicial review.
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permittee several years for installation of required control equipment. Existing
sources generally will have several years following promulgation and effective
dates of standards, therefore, to comply with any standards.
In short, the road to EPA regulation is rarely a straight path. There are numerous possible causes
of delay. It would be unusual if the regulatory actions described here were all implemented on the
anticipated schedule, and even if they were, existing facilities would often have several years
before being required to comply.
18
They may also be substantially altered before they become final, as a result of the proposal and public comment
process, and/or judicial review.
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Conclusions
In the 111th Congress, a number of EPA’s regulatory actions were the subject of legislative
proposals, including stand-alone bills that would have delayed or prohibited EPA actions,
resolutions of disapproval under the Congressional Review Act, and potential riders on EPA’s
FY2010 appropriation. None of these measures passed. One (Senator Murkowski’s S.J.Res. 26, a
resolution to disapprove—and thus overturn—EPA’s greenhouse gas [GHG] endangerment
finding) was voted on.19
Notwithstanding the absence of congressional enactments, criticism of EPA actions grew as the
number and scope of agency proposals increased: especially toward the end of the last Congress,
EPA was on the receiving end of numerous letters from the House and Senate, many of them
bipartisan in nature, asking the Administrator to delay or reconsider proposed agency actions. In
the wake of the November elections, the number of members critical of EPA’s regulatory agenda
has grown
In the 112th Congress, criticism of EPA actions has increased, and legislation to prevent or delay
EPA action has passed the House. More legislation is considered likely. Some recent proposals
are broad in nature, targeting EPA generally or a lengthy list of specifics, while others focus more
narrowly on individual rules or actions.
The situation is particularly contentious for regulatory actions involving greenhouse gases.
Although Administrator Jackson and President Obama have repeatedly expressed their preference
for Congress to take the lead in designing a GHG regulatory system, EPA maintains that, in the
absence of congressional action, it must proceed to regulate GHG emissions using existing
authority: a 2007 Supreme Court decision (Massachusetts v. EPA) compelled EPA to consider
whether GHGs are air pollutants that endanger public health and welfare, and if it so determined,
to embark on a regulatory course that is prescribed by the Clean Air Act. Having made an
affirmative decision on the endangerment question, EPA is now proceeding on that regulatory
course and is defending its actions in court.
Opponents of this effort in Congress, who maintain that the agency is exceeding its authority, are
considering
have considered various approaches to alter the agency’s course. This situation is likely to result in
numerous oversight hearings and specific legislative proposals in the 112th Congress. These
criticisms are reflected, for example, in House passage on February 19 ofaltering the agency’s course. For example, in February, the
House passed H.R. 1, a continuing
resolution (CR) providing FY2011 full-year funding for EPA
and other federal agencies and
departments. As passed by the House, the bill included specific funding levels for a number of
EPA accounts and activities. It also contained more than contained more than
20 provisions restricting or prohibiting
the use of appropriated funds to implement various
regulatory activities under the EPA’s
jurisdiction—including many discussed in this report.20 The House Energy and Commerce
Committee has also approved legislation to restrict EPA authority and to repeal a dozen EPA
regulatory actions dealing with greenhouse gases (H.R. 910). A Senate counterpart (S. 482) was
debated as an amendment to S. 493 during the week of March 14. Beyond the criticism of
individual regulations, there also are calls for broad regulatory reforms, for example to reinforce
the role of economic considerations in agency decision making or to increase Congress’s role in
approving or disapproving regulatory decisions.
19
On June 10, 2010, the Senate voted 47-53 not to proceed to debate the resolution.
For information, see CRS Report R41698, H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of
Environmental Protection Agency (EPA) Provisions, by Robert Esworthy. On March 9, the Senate failed to approve
House-passed H.R. 1 and subsequently also did not agree to a substitute text (S.Amdt. 49) that contained different
funding levels and generally omitted the EPA regulatory provisions in the House-passed bill.
20
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Organization of the Report
This report organizes the regulatory actions it describes under five headings: Clean Air Act and
Climate Change; Clean Water Act; Safe Drinking Water Act; Toxic Substances Control Act; and
RCRA/Superfund. A majority of the rules (26 of the 43) are being developed under the regulatory
authority of the Clean Air Act. To help organize the presentation of these 26, we have grouped
rules addressing specific issues (e.g., climate change, ambient air quality standards, etc.) together
under subheadings. Following the text, the information is summarized in the form of a table, with
the rules presented in the same order as in the text.
Clean Air Act and Climate Change
Climate Change
1. Greenhouse Gas Reporting Rule. On October 30, 2009, in response to a congressional
mandate in EPA’s FY2008 appropriation (P.L. 110-161), EPA promulgated the Greenhouse Gas
Reporting Rule. 21 The rule will require 31 categories of sources to report their emissions of
greenhouse gases to EPA annually, beginning in 2011, if the sources emit 25,000 tons or more of
carbon dioxide or the equivalent amount of five other greenhouse gases (GHGs).22 jurisdiction—many of them focused on GHGs.20 (On March
9, the Senate failed to approve House-passed bill and subsequently also did not agree to a
substitute text (S.Amdt. 49) that contained different funding levels and generally omitted the EPA
regulatory provisions in the House-passed bill.)
The House also approved legislation to restrict EPA authority and to repeal a dozen EPA
regulatory actions dealing with greenhouse gases (H.R. 910), on April 7. In the Senate, an
amendment identical to H.R. 910 (S.Amdt. 183) failed on a vote of 50-50.
20
For information, see CRS Report R41698, H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of
Environmental Protection Agency (EPA) Provisions, by Robert Esworthy.
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In reporting H.R. 2584, which would provide EPA funding for FY2012, the House Appropriations
Committee included more than 25 provisions that would restrict or preclude the use of funds to
proceed with recent or pending EPA regulatory actions.21
Also in the 112th Congress, a number of bills addressing individual EPA regulations have been
introduced. For example, two bills have been proposed that would prohibit coal combustion waste
from being regulated as hazardous waste—H.R. 1391 (the Recycling Coal Combustion Residuals
Accessibility Act of 2011, or the RCCRA Act) and H.R. 1405 (see the “RCRA/Superfund”
section below). A House Energy and Commerce Committee subcommittee approved H.R. 1391 in
June. Also, bills that would delay implementation of EPA’s boiler MACT rule (see “Boilers and
Incinerators” section below) have been introduced (H.R. 2250/S. 1392), as has legislation to
delay EPA’s Portland cement emissions rule (H.R. 2681, see “Other” section below).
Beyond the criticism of individual regulations, there also are calls for broad regulatory reforms,
for example to reinforce the role of economic considerations in agency decision-making, to
increase Congress’s role in approving or disapproving regulatory decisions, or to require analysis
of the cumulative impacts of multiple EPA regulations. One such broad bill is H.R. 2401, the
Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act of 2011. It would
establish a panel of representatives of federal agencies to report to Congress by August 2012 on
the cumulative economic impact of a number of listed EPA rules, guidelines, and actions
concerning clean air and waste management. The House Energy and Commerce Committee
approved this bill on July 13. Similar legislation introduced in the Senate, S. 609, the
Comprehensive Assessment of Regulations on the Economy Act of 2011, would direct the
Department of Commerce to form a panel to review the cumulative energy and economic impacts
of specific rules proposed or finalized by EPA or expected soon. Both bills would cover rules
discussed in this report. Impetus for this type of legislation is the widely expressed concern that
when EPA analyzes impacts of individual regulations, it does not consider costs imposed by
multiple rules taking effect more or less simultaneously.22
Organization of the Report
This report organizes the regulatory actions it describes under five headings: Clean Air Act and
Climate Change; Clean Water Act; Toxic Substances Control Act; and RCRA/Superfund. A
majority of the rules (23 of the 38) are being developed under the regulatory authority of the
Clean Air Act. To help organize the presentation of these 23, we have grouped rules addressing
specific issues (e.g., climate change, ambient air quality standards, etc.) together under
subheadings. Following the text, the information is summarized in the form of a table (Table 1),
with the rules presented in the same order as in the text.
21
For information, see CRS Report R41979, Environmental Protection Agency (EPA) FY2012 Appropriations:
Overview of Provisions in H.R. 2584 , by Robert Esworthy.
22
EPA analyses of the impact of new regulations generally construct a baseline of other state and federal regulations
that have been promulgated and court decisions or consent agreements that have been finalized as of the date of a new
regulation’s proposal or promulgation. If other regulations under development at the same time are not yet final, the
agency does not include the potential impact in its analysis, since regulations under development are often modified,
delayed, or withdrawn before promulgation.
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Clean Air Act and Climate Change
Climate Change
1. Greenhouse Gas Reporting Rule. On October 30, 2009, in response to a congressional
mandate in EPA’s FY2008 appropriation (P.L. 110-161), EPA promulgated the Greenhouse Gas
Reporting Rule.23 The rule required 31 categories of sources to report their emissions of
greenhouse gases to EPA annually, beginning in 2011, if the sources emit 25,000 tons or more of
carbon dioxide or the equivalent amount of five other greenhouse gases (GHGs).24 (Eleven other
categories of sources have since been added to the rule.) By itself, the rule imposes little cost
($867 per facility, according to EPA’s estimate) because it only requires reporting; but the sources
who are required to report are expected to be the focus of EPA efforts as the agency develops
regulations to control emissions of GHGs. The original reporting deadline was March 31, 2011.
As that date approached, EPA extended the deadline to September 30. For additional information,
contact Jim McCarthy (772257-7225, jmccarthy@crs.loc.gov).
2. Greenhouse Gas Endangerment Finding. On December 15, 2009, EPA issued findings that
six greenhouse gases cause or contribute to air pollution that endangers public health and
welfare. 2325 The action was taken in response to an April 2007 Supreme Court decision
(Massachusetts v. EPA) that required the agency to decide the issue or to conclude that climate
change science is so uncertain as to preclude making such findings. These findings do not
themselves impose any requirements on industry or other entities. However, the action was a
prerequisite to finalizing EPA’s greenhouse gas emission standards for cars and light duty trucks,
which were jointly promulgated by EPA with fuel economy standards from the Department of
Transportation, on May 7, 2010. These, in turn, triggered permit requirements for stationary
sources of GHGs, beginning January 2, 2011. On December 10, 2010, the U.S. Court of Appeals
for the D.C. Circuit denied industry and state motions to stay the endangerment finding and
related regulations. The court’s order applied to 84 cases filed by a variety of industry groups and
21
states (Coalition for Responsible Regulation v. EPA). For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
3. Light Duty Motor Vehicle Greenhouse Gas Rules. On May 7, 2010, EPA and the National
Highway Traffic Safety Administration (NHTSA) promulgated integrated GHG emission
standards and corporate average fuel economy (CAFE) standards for new cars and light trucks, a
category that includes SUVs and minivans, as well as pickup trucks.26 NHTSA is required by the
Energy Independence and Security Act of 2007 (EISA, P.L. 110-140) to promulgate CAFE
23
U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases; Final Rule,” 74 Federal
Register 56260, October 30, 2009.
2224
GHG emissions consist of carbon dioxide (CO2), methane, nitrous oxide (N2O), sulfur hexafluoride (SF6), and two
categories of gases—hydrofluorocarbons (HFCs) and perfluorocarbons (PFCs). Since each of these substances has a
different global warming potential, the emissions of each are converted to the equivalent amount of CO2 emissions,
based on how potent the substance is as compared to CO2, giving rise to the term “CO2-equivalent.”
2325
U.S. Environmental Protection Agency, “Endangerment and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act,” 74 Federal Register 66496, December 15, 2009.
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states (Coalition for Responsible Regulation v. EPA). For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
3. Light Duty Motor Vehicle Greenhouse Gas Rule. On May 7, 2010, EPA and the National
Highway Traffic Safety Administration (NHTSA) promulgated integrated GHG emission
standards and corporate average fuel economy (CAFE) standards for new cars and light trucks, a
category that includes SUVs and minivans, as well as pickup trucks.24 NHTSA is required by the
Energy Independence and Security Act of 2007 (EISA, P.L. 110-140) to promulgate CAFE
26
U.S. Environmental Protection Agency, U.S. Department of Transportation, “Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average Fuel Economy Standards; Final Rule,” 75 Federal Register 25324-25728,
May 7, 2010.
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standards so that by 2020, new cars and light trucks reach a combined average fuel economy of
35 miles per gallon (mpg). EPA simultaneously issued vehicle greenhouse gas standards in
response to directives from the Supreme Court in Massachusetts v. EPA. The regulations would
require an increase in fuel economy to as much as 35.5 mpg by model year 2016, four years
ahead of the deadline set in EISA. The Administration estimates that complying with the proposal
will add $1,100 to the cost of an average vehicle, although this additional purchase cost is
expected to be paid back through lifetime fuel savings. The new standards will be phased in
beginning with the 2012 model year. EPA estimates that the additional lifetime cost of 2012-2016
model year vehicles under the regulations will be about $52 billion; benefits are expected to be
approximately $240 billion. EPA and NHTSA have also begun consideration of joint GHG/fuel
economy rules for 2017-2025 model year vehicles. On July 29, 2011, the White House announced
that it had reached agreement with 13 auto manufacturers, the United Auto Workers, the State of
California, and other interested parties under which GHG emissions from new cars and light
trucks will be reduced about 50% by 2025, and average fuel economy will rise to nearly 50 miles
per gallon. A formal proposal for these standards is expected by September 30. For additional
. For additional information, contact Brent
Yacobucci (7-9662, byacobucci@crs.loc.gov).
4. Greenhouse Gas Tailoring Rule. On June 3, 2010, EPA promulgated a rule that defines which
stationary sources will be required to obtain Clean Air Act permits for GHG emissions and how
the requirements will be phased in.2527 The threshold set by the rule (annual emissions of 75,000100,000 tons of carbon dioxide equivalents) will limit which facilities will be required to obtain
permits: for the next three years, the nation’s largest GHG emitters, including power plants,
refineries, cement production facilities, and about two dozen other categories of sources (an
estimated 1,45017,000 facilities annually) will be the only sources required to obtain permits. Smaller
Of these,
most will face only an administrative requirement to provide an estimate of their GHG emissions,
but 1,600 will need to address whether they have the best available control technology for
limiting emissions. Smaller businesses, almost all farms, and large residential structures (about 6
million sources in all these
categories), which would otherwise be required to obtain permits once
GHGs became regulated
pollutants under the act, are excluded by the rule’s threshold limits and
thus would be shielded
from permitting requirements by this rule. For additional information,
contact Jim McCarthy (772257-7225, jmccarthy@crs.loc.gov).
5. PSD and Title V Permit Requirements for GHG Emissions. Beginning on January 2, 2011,
new and modified major stationary sources that emit more than 75,000 tons per year of CO2equivalent greenhouse gases were required to obtain Prevention of Significant Deterioration
(PSD) permits addressing their GHG emissions. These permits, which are mandated under
Section 165 of the Clean Air Act, will require the applicants to install the Best Available Control
Technology (BACT) in order to construct or operate new and modified major sources of
emissions. State permitting authorities will determine what technologies qualify as BACT on a
case-by-case basis, using generic guidance issued by EPA on November 10, 2010.26 The
24
U.S. Environmental Protection Agency, U.S. Department of Transportation, “Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average Fuel Economy Standards; Final Rule,” 75 Federal Register 25324-25728,
May 7, 2010.
2528 The
PSD/BACT requirement initially applied only to facilities such as power plants large enough to
already be required to obtain PSD permits as a result of their emissions of other pollutants such as
sulfur dioxide or nitrogen oxides. What was new starting January 2 was the addition of GHGs to
27
U.S. Environmental Protection Agency, “Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule; Final Rule,” 75 Federal Register 31514, June 3, 2010.
2628
U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, “PSD and Title V Permitting
Guidance for Greenhouse Gases,” November 2010 (subsequently revised, March 2011), at http://www.epa.gov/nsr/
ghgdocs/ghgpermittingguidance.pdf.ghgdocs/epa-hq-oar-2010-0841(continued...)
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PSD/BACT requirement will initially apply only to facilities such as power plants large enough to
already be required to obtain PSD permits as a result of their emissions of other pollutants such as
sulfur dioxide or nitrogen oxides. What is new starting January 2 is the addition of GHGs to the
list of pollutants that must be addressed by BACTthe list of pollutants that must be addressed by BACT. On July 1, 2011, Step 2 of the
requirements took effect: under Step 2, all new and modified sources emitting more than the
threshold amounts of GHGs will be required to obtain permits, whether or not they would be
required to do so because of emissions of other pollutants.
Existing sources that are already required to obtain operating permits under Title V of the act will
also have to provide information on their GHG emissions. EPA notes that the Title V requirement
will generally be satisfied by referencing information already provided to EPA under the GHG
reporting rule (item 1, above). Title V permits do not impose emission control requirements
themselves; they simply summarize emission control requirements mandated by other sections of
the Clean Air Act. Thus, the only change to Title V permits will be the addition of GHGs to the
list of pollutants that the facilities are allowed to emit. For additional information on PSD and
Title V permits, contact Larry Parker (7-7238, lparker@crs.loc.gov).
6. Medium- and Heavy-Duty Vehicle Greenhouse Gas Rule. On November 30, 2010August 9, 2011, EPA and
the the
National Highway Traffic Safety Administration (NHTSA) proposedfinalized integrated GHG
emission emission
standards and fuel economy standards for medium- and heavy-duty vehicles. 2729 EPA’s
endangerment finding (item 2, above) specifically referenced medium- and heavy-duty trucks as
among the sources that contribute to the GHG emissions for which it found endangerment. In
addition, NHTSA was required by Section 102 of the Energy Independence and Security Act of
2007 (EISA, P.L. 110-140) to promulgate fuel economy standards for medium- and heavy-duty
trucks, reflecting the “maximum feasible improvement” in fuel efficiency. The proposed
standards would be will be
phased in between 2014 and 2018. When fully implemented, they would
will require an average per
vehicle reduction in GHG emissions of 17% for diesel trucks and 12% for
gasoline-powered
trucks. The expected cost increase for the 2014-2018 vehicles affected by the
rule is $7.78.1 billion.
EPA projects benefits of $4957 billion over the trucks’ lifetimes, including more
than $40$50 billion in fuel
savings. For additional information, contact Brent Yacobucci (7-9662,
byacobucci@crs.loc.gov).
7. NSPS for Petroleum Refineries. On December 23, 2010, EPA announced that it was settling a
lawsuit filed by 11 states, two municipalities, and three environmental groups over its 2008
decision not to establish New Source Performance Standards (NSPS) for GHG emissions from
petroleum refineries. According to the agency, refineries are the second largest direct stationary
source of GHGs in the United States and there are cost-effective strategies for reducing these
emissions. The agency has agreed to propose NSPS for new refinery facilities and emissions
guidelines for existing facilities by December 10, 2011, and to make a final decision on the
proposed actions by November 10, 2012. For additional information, contact Brent Yacobucci (79662, byacobucci@crs.loc.gov) or Jim McCarthy (7-7225Jim McCarthy (77225, jmccarthy@crs.loc.gov).
Two other rules affecting GHG emissions are in the pre-proposal stage of consideration at EPA,
and are discussed below in items 17 and 22.
(...continued)
0001.pdf.
27:
NSPS for GHG emissions from electric generating units (item 15, below) and similar standards
for Portland cement manufacturing facilities (discussed in item 19, below)
29
U.S. Environmental Protection Agency, U.S. Department of Transportation, “Greenhouse Gas Emissions Standards
and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles, Proposed Rule,” 75 Federal
Register 74152-74456, November 30, 2010; Final Rules,” 76 Federal Register
57106, September 15, 2011.
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Renewable Fuels
8. Expanded Renewable Fuel Standard (RFS2). On March 26, 2010, EPA promulgated new
rules for the renewable fuel standard (RFS) that was expanded by the Energy Independence and
Security Act of 2007 (EISA, P.L. 110-140).2830 In 2010, the RFS required the use of 12.95 billion
gallons of ethanol and other biofuels in transportation fuel. Within that mandate, the statute
required the use of 0.95 billion gallons of advanced biofuels (fuels other than corn starch
ethanol), including 100 million gallons of cellulosic biofuels. EISA also requires that advanced
biofuels (as well as conventional biofuels from newly built refineries) meet certain lifecycle
greenhouse gas reduction requirements. Because no commercial-scale cellulosic biofuel refineries
have begun operation, the March 2010 rules reduced the mandated 2010 level for these fuels from
100 million gallons to 6.5 million gallons. The final rule also modified EPA’s proposed
methodology for measuring lifecycle greenhouse gas emissions. On December 21, 2010, EPA
finalized the mandate for 2011.2931 Because of a similar shortfall in projected cellulosic production
capacity for 2011, the mandate was waived from 250 million gallons to 6.6 million gallons. The
overall mandate of 13.95 billion gallons for 2011 was maintained. For additional information,
contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
9. Ethanol Blend Wall Waiver. On March 6, 2009, Growth Energy (on behalf of 52 U.S. ethanol
producers) applied to EPA for a waiver from the current Clean Air Act limitation on ethanol
content in gasoline. Ethanol content in gasoline has been capped at 10% (E10); the application
requested an increase in the maximum concentration to 15% (E15). A waiver would allow the use
of significantly more ethanol in gasoline than has been permitted under the Clean Air Act.
Limiting ethanol content to 10% leads to an upper bound of roughly 15 billion gallons of ethanol
in all U.S. gasoline. This “blend wall” could limit the fuel industry’s ability to meet the Energy
Independence and Security Act’s future requirements to use increasing amounts of renewable
fuels (including ethanol) in transportation.
On November 4, 2010, EPA granted a partial waiver allowing the use of E15 in Model Year (MY)
2007 vehicles and newer.3032 The agency delayed a decision on MY2001-2006 vehicles until the
Department of Energy completescompleted testing of those vehicles. On January 21, 2011, EPA announced
that the waiver would be expanded to include MY2001-2006 vehicles.3133 EPA determined that data
were insufficient to address concerns that had been raised over emissions from MY2000 and
older vehicles, as well as heavy-duty vehicles, motorcycles and nonroad applications, and thus a
waiver for these vehicles/engines was denied. EPA has noted that granting the waiver eliminates
only one impediment to the use of E15—other factors, including retail and blending
infrastructure, state and local laws and regulations, and manufacturers’ warranties, would still
need to be addressed. Because of concerns over potential damage by E15 to equipment not
designed for its use, this partial waiver has been challenged in court by a group of vehicle and
2830
U.S. Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel
Standard Program; Final Rule,” 75 Federal Register 14670-14904, March 26, 2010.
2931
U.S. Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: Modifications to Renewable Fuel
Standard Program; Final Rule,” 75 Federal Register 79964, December 21, 2010.
3032
U.S. Environmental Protection Agency, “Partial Grant and Partial Denial of Clean Air Act Waiver Application
Submitted by Growth Energy to Increase the Allowable Ethanol Content of Gasoline to 15 Percent; Decision of the
Administrator; Notice,” 75 Federal Register 68094-68150, November 4, 2010.
3133
U.S. Environmental Protection Agency, “Partial Grant of Clean Air Act Waiver Application Submitted by Growth
Energy to Increase the Allowable Ethanol Content of Gasoline to 15 Percent; Decision of the Administrator,” signed
January 21, 2011 (awaiting publication in the Federal Register)76
Federal Register 4662, January 26, 2011.
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engine manufacturers. On June 23, 2011, EPA issued final rules, including new labeling
requirements, to prevent the accidental use of E15 in vehicles and engines not approved for its
use. For additional information, contact Brent Yacobucci (7-9662,
byacobucci@crs.loc.gov).
Ambient Air Quality Standards
10.-14. Ozone, Particulates, and Other Ozone Ambient Air Quality Standards. On January 19, 2010,
EPA proposed a revision of
the National Ambient Air Quality Standard (NAAQS) for ozone. 32
This standard is expected to be finalized by the end of July 2011. Two other NAAQS (for sulfur
dioxide33 and nitrogen dioxide34) were finalized in 2010 and EPA expects to propose revised
NAAQS for particulate matter in 2011. The agency has also reviewed its carbon monoxide
NAAQS, but proposed not to change the standard. 34 At the President’s request, on
September 2, 2011, this proposal was withdrawn, leaving EPA to enforce previously implemented
ozone standards.
NAAQS are the cornerstone of the Clean Air
Act, in effect defining what EPA considers to be
clean air. They do not directly limit emissions,
but they set in motion a process under which
“nonattainment areas” are identified and states and
EPA develop plans and regulations to reduce
pollution in those areas. Nonattainment designations
may also trigger statutory requirements,
including that new major sources offset certain emissions
by reducing emissions from existing
sources. Currently, there are NAAQS for six pollutants
(ozone, particulate matter, sulfur dioxide,
carbon monoxide, nitrogen dioxide, and lead). The
Clean Air Act requires that these standards be
reviewed every five years, and all of the standards
have been under court-ordered deadlines for review.
The standards with the broadest impact are those for ozone and particulate matter (PM). EPA has
identified at least 515 counties that would violate the proposed ozone NAAQS if the most recent
three years of data currently available were used to determine attainment (compared to 85
counties that violate the currently implemented standard). EPA is prohibited by the statute from
considering costs in the setting of a NAAQS, but it does prepare cost and benefit estimates for
information purposes. The agency estimates that the costs of implementing the revised ozone
NAAQS would range from $19 billion to $90 billion annually in 2020, with benefits of roughly
the same amount. The PM NAAQS decision, to be proposed in 2011, and the sulfur dioxide (SO2)
NAAQS promulgated in June 2010 could also impose costs in the billions of dollars, although the
monetized benefits of PM and SO2 controls (primarily the avoidance of premature death) have
generally far outweighed the cost estimates. For additional information, contact Jim McCarthy (77225, jmccarthy@crs.loc.gov).
Electric Generating Units
15. Clean Air Transport Rule. EPA’s major clean air initiative under the Bush Administration,
the Clean Air Interstate Rule (CAIR), was vacated and remanded to the agency by the D.C.
Circuit Court of Appeals in 2008. EPA proposed a replacement for the rule, which it is calling the
Clean Air Transport Rule, August 2, 2010,35 and expects to finalize the rule in June 2011. The
32
U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Ozone; Proposed Rule,” 75
Federal Register 2938, January 19, 2010.
33
U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final
Rule,” 75 Federal Register 35520, June 22, 2010.
34
U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide;
Final Rule,” 75 Federal Register 6473, February 9, 2010.
35
U.S. Environmental Protection Agency, “Federal Implementation Plans To Reduce Interstate Transport of Fine
Particulate Matter and Ozone; Proposed Rule,” 75 Federal Register 45210, August 2, 2010.
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original rule, designed to control emissions of air pollution that causes air quality problems in
downwind states, established cap-and-trade programs for sulfur dioxide and nitrogen oxide
emissions from coal-fired electric power plants in 28 Eastern states, at an estimated annual cost of
$6.1 billion in 2020. Benefits were estimated to be at least $120 billion annually, with an annual
22,000 premature deaths avoided. The replacement rule proposed in July 2010 applies to 31
states; its annual cost is estimated at $2.2 billion, with benefits of $120 billion to $290 billion
annually.
Given the need to meet the more stringent NAAQS (especially those for ozone and PM) that EPA
is proposing and promulgating, the agency stated its intention to propose a further set of
requirements addressing interstate transport of air pollution in 2011. For additional information,
contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov) or Larry Parker (7-7238,
lparker@crs.loc.gov).
16.-17. NSPS and MACT for Coal-Fired Power Plants. In 2005, EPA promulgated regulations
establishing a cap-and-trade system to limit emissions of mercury from coal-fired power plants.
The rules were challenged, and the D.C. Circuit Court of Appeals vacated them in 2008. Rather
than appeal the ruling to the Supreme Court, EPA agreed to propose Maximum Achievable
Control Technology (MACT) standards by March 2011 and promulgate final standards by
November 2011. The proposed standards, released March 16, are already being met by 56% of
coal- and oil-fired electric generating units; the other 44% would be required to install technology
that will reduce mercury and acid gas emissions by 91%, at an annual cost of $10.9 billion. EPA
estimates that the annual benefits, including the avoidance of up to 17,000 premature deaths
annually, will be between $59 billion and $140 billion. Following promulgation of these
standards, existing power plants will have three years, with a possible one-year extension, to meet
the standards. About 20 states have already established mercury emission control standards for
coal-fired power plants, and other major sources have been controlled for as long as 15 years,
reducing their emissions as much as 95%.
EPA has stated that it will coordinate a review of the New Source Performance Standards (NSPS)
to consider greenhouse gas emission standards for electric generating units at the same time as it
develops the MACT standards. Electric generating units are the largest U.S. source of both
greenhouse gas and mercury emissions, accounting for about one-third of all GHG emissions in
addition to nearly half of U.S. mercury emissions. Thus, these rules are expected to be among the
most controversial rules to be issued by EPA this year. On December 23, 2010, EPA released the
text of a settlement agreement with 11 states, two municipalities, and three environmental groups,
under which it agreed to propose the NSPS for power plants by July 26, 2011, and take final
action on the proposal by May 26, 2012. For additional information, contact Jim McCarthy (77225, jmccarthy@crs.loc.gov) or Larry Parker (7-7238, lparker@crs.loc.gov).
Boilers and Incinerators
18.-19. MACT and Area Source Standards for Boilers. EPA proposed Maximum Achievable
Control Technology standards to control emissions of toxic air pollutants from commercial and
industrial boilers in June 2010.36 A final rule was issued February 21, 2011, under a court order by
36
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Major
Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters; Proposed Rule,” 75 Federal Register
32006, June 4, 2010.
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the D.C. Circuit Court of Appeals. Because of voluminous comments and new information
received from industry during a public comment period, EPA had asked the court to extend the
deadline for promulgating final standards to April 2012. Having been denied that extension, the
agency issued a statement saying, “The standards will be significantly different than what EPA
proposed…. The agency believes these changes still deserve further public review and comment
and expects to solicit further comment through a reconsideration of the rules.”37 The agency
initiated a reconsideration on the same day that it released the final rule
review. EPA last completed a review of the ozone NAAQS in 2008, and made the standard more
stringent; but the Obama Administration’s EPA suspended implementation of the 2008 standard in
2009 in order to consider further strengthening it.
The reconsidered ozone NAAQS that was proposed in January 2010 has been among the most
controversial standards under consideration at EPA, because of its wide reach and potential cost.
In the 2010 proposal, EPA identified at least 515 counties that would violate the NAAQS if the
most recent three years of data available at the time of proposal were used to determine
attainment (compared to 85 counties that violated the standard in effect at that time). The agency
estimated that the costs of implementing the reconsidered ozone NAAQS, as proposed, would
range from $19 billion to $90 billion annually in 2020, with benefits of roughly the same amount.
EPA completed its reconsideration of the ozone NAAQS and sent a final decision to the Office of
Management and Budget for interagency review in July 2011. On September 2, 2011, the White
House announced that the President had requested that EPA Administrator Jackson withdraw the
draft ozone standards at this time. The President’s statement noted that work is already underway
to update a 2006 review of the science that will result in the reconsideration of the ozone standard
in 2013, and stated that he did not support asking state and local governments to begin
implementing a new standard that will soon be reconsidered.35 For additional information, contact
Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
11. Particulate Matter (including “Farm Dust”) NAAQS. EPA last completed a review of the
NAAQS for particulate matter in 2006. Thus, the agency is required by the Clean Air Act to
conduct a review of the standards in 2011. EPA considers particulate matter to be among the most
serious air pollutants, responsible for tens of thousands of premature deaths annually.
34
U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Ozone; Proposed Rule,” 75
Federal Register 2938, January 19, 2010.
35
The White House, Office of the Press Secretary, “Statement by the President on the Ozone National Ambient Air
Quality Standards,” September 2, 2011.
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The current NAAQS sets standards for both “fine” particulates (PM2.5) and larger, “coarse”
particles (PM10). The PM2.5 standards affect far more people and far more counties than the
standard for PM10, and both sets of standards have affected mostly industrial, urban areas.
Nevertheless, agricultural interests have made substantial efforts over the last year to assail a
supposed EPA plan to regulate emissions of farm dust through the PM10 NAAQS review, and have
urged Congress to prevent the agency from doing so. Thus far, the agency has not proposed any
changes to the existing standards, and it has revised its target date for proposal several times.
Most recently, the agency indicated it hoped to propose revised standards by the summer or fall of
2011. Final standards would not likely be promulgated before the fall of 2012, based on previous
EPA target dates and timelines for this review. For additional information, contact Rob Esworthy
(7-7236, resworthy@crs.loc.gov).
12. Sulfur Dioxide NAAQS. Three other NAAQS reviews (for sulfur dioxide,36 nitrogen
dioxide,37 and carbon monoxide) have been completed in 2010 and 2011. Of these, only the sulfur
dioxide (SO2) NAAQS is considered an economically significant rule.38 EPA estimated the cost of
the more stringent SO2 NAAQS at $1.8 billion to $6.8 billion annually, with benefits 5-6 times
that amount. For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Electric Generating Units
13. Cross-State Air Pollution (Clean Air Transport) Rule. EPA’s major clean air initiative
under the Bush Administration, the Clean Air Interstate Rule (CAIR), was vacated and remanded
to the agency by the D.C. Circuit Court of Appeals in 2008. EPA finalized a replacement for the
rule, which it calls the Cross-State Air Pollution Rule, July 6, 2011.39 The original rule, designed
to control emissions of air pollution that causes air quality problems in downwind states,
established cap-and-trade programs for sulfur dioxide and nitrogen oxide emissions from coalfired electric power plants in 28 Eastern states, at an estimated annual cost of $3.6 billion in 2015.
The replacement rule also applies to 28 states; it allows unlimited intrastate allowance trading,
but limits interstate trading in response to the D.C. Circuit decision; its annual compliance cost is
estimated at $3.0 billion in 2012 and $2.4 billion in 2014. EPA estimates the benefits of the rule at
$120 billion to $280 billion annually, chiefly the avoidance of 13,000 to 34,000 annual premature
deaths. Because of the earlier CAIR requirements, electric generators have already achieved more
than two-thirds of the pollution reductions necessary to comply with the 2014 standards.
Given the need to meet the more stringent NAAQS that EPA is proposing and promulgating, the
agency stated its intention to propose a further set of requirements in 2011 to address interstate
36
U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final
Rule,” 75 Federal Register 35520, June 22, 2010.
37
U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide;
Final Rule,” 75 Federal Register 6473, February 9, 2010.
38
The agency concluded that the nitrogen dioxide NAAQS, even though it was strengthened, would have no costs or
benefits, since the agency projected no areas to be nonattainment for the revised standard. The agency decided not to
change the carbon monoxide NAAQS, so there were no costs or benefits associated with that review, either.
39
The rule appeared in the Federal Register August 8, 2011. See U.S. Environmental Protection Agency, “Federal
Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, “ 76
Federal Register 48208, August 8, 2011. Explanatory material can be found at http://www.epa.gov/crossstaterule/
actions.html. The rule was generally referred to as the Clean Air Transport Rule prior to being finalized.
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transport of air pollution. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov) or Larry Parker (7-7238, lparker@crs.loc.gov).
14. MACT for Electric Generating Units (“Utility MACT”). In 2005, EPA promulgated
regulations establishing a cap-and-trade system to limit emissions of mercury from coal-fired
power plants. The rules were challenged, and the D.C. Circuit Court of Appeals vacated them in
2008. Rather than appeal the ruling to the Supreme Court, EPA agreed to propose Maximum
Achievable Control Technology (MACT) standards by March 2011 and promulgate final
standards by November 2011. The proposed standards, released March 16, are already being met
by 56% of coal- and oil-fired electric generating units; the other 44% would be required to install
technology that will reduce uncontrolled mercury and acid gas emissions by 91%, at an annual
cost of $10.9 billion. EPA estimates that the annual benefits, including the avoidance of up to
17,000 premature deaths annually, will be between $59 billion and $140 billion. Following
promulgation of these standards, existing power plants will have three years, with a possible oneyear extension, to meet the standards. About 20 states have already established mercury emission
control standards for coal-fired power plants, and other major sources have been controlled for as
long as 15 years, reducing their emissions as much as 95%. For additional information, contact
Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
15. NSPS for GHG Emissions from Electric Generating Units. EPA has stated for some time
that it would coordinate a review of the New Source Performance Standards (NSPS) to consider
greenhouse gas emission standards for electric generating units at the same time as it developed
the electric utility MACT standards. Electric generating units are the largest U.S. source of both
greenhouse gas and mercury emissions, accounting for about one-third of all GHG emissions in
addition to about half of U.S. mercury emissions. On December 23, 2010, EPA released the text
of a settlement agreement with 11 states, two municipalities, and three environmental groups,
under which it agreed to propose the NSPS for power plants by July 26, 2011, and take final
action on the proposal by May 26, 2012. The proposal date has since been changed to September
30, 2011, and may be further delayed, but the expected promulgation date remains unchanged.
For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov) or Larry
Parker (7-7238, lparker@crs.loc.gov).
Boilers and Incinerators
16.-17. MACT and Area Source Standards for Boilers. EPA proposed Maximum Achievable
Control Technology standards to control emissions of toxic air pollutants from commercial and
industrial boilers in June 2010. A final rule was issued February 21, 2011, under a court order by
the Federal District Court for the District of Columbia. 40 Because of voluminous comments and
new information received from industry during a public comment period, EPA had asked the
court to extend the deadline for promulgating final standards to April 2012. Having been denied
that extension, the agency issued a statement saying, “The standards will be significantly different
than what EPA proposed…. The agency believes these changes still deserve further public review
and comment and expects to solicit further comment through a reconsideration of the rules.”41
40
The final rule appeared in the Federal Register March 21, 2011. U.S. Environmental Protection Agency, “National
Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers
and Process Heaters; Final Rule,” 76 Federal Register 15608, March 21, 2011.
41
U.S. EPA, “EPA Announces Next Steps on Emissions Standards for Boilers, Certain Incinerators,” Press Release,
January 20, 2011, at http://yosemite.epa.gov/opa/admpress.nsf/6424ac1caa800aab85257359003f5337/
(continued...)
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The agency initiated a reconsideration on the same day that it released the final rule, and it
subsequently announced that it would propose changes to the rule in October 2011, with
promulgation by April 30, 2012.
Boilers are used throughout industry and in many commercial and institutional facilities. The
D.C. Circuit vacated EPA’s previous MACT rule for this category in 2007, saying EPA had
wrongly excluded many industrial boilers from the definition of solid waste incinerators, which
have more stringent emissions requirements under the Clean Air Act. The vacated rule had
estimated annual costs of $837 million, with a benefit-cost ratio of about 20 to 1. The February
2011 rule would set more stringent standards. It would affect 13,840 boilers, according to the
agency, with annual costs estimated at $1.4 billion and benefits of $22 billion to $54 billion
annually, including the avoidance of 2,500 to 6,500 premature deaths.
EPA also proposedpromulgated what are called “area source” standards for smaller boilers at the same time as
as the MACT.3842 The area source standards would affect 187,000 boilers, most of which would only
only be required to perform a tune-up every two years to comply with the regulations. EPA estimated
estimated the net cost of the area source rule to be $487 million annually, with partial benefits
ranging from
$210 million to $520 million annually. For additional information, contact Jim
McCarthy (772257-7225, jmccarthy@crs.loc.gov).
2018. Commercial and Industrial Solid Waste Incinerator (CISWI) Standards. A third
regulation proposedpromulgated at the same time as the boiler MACT and area source boiler rules would set
set standards for emissions from commercial and industrial solid waste incinerators.3943 These
standards are related to the D.C. Circuit’s remand of the boiler rules in 2007, and also faced a
judicial deadline of February 21, 2011. The rules would expand the number of existing facilities
subject to the more stringent CISWI standards from 20 to 88, with annual costs of $232 million,
according to EPA, and benefits of $360 million-$870 million annually. EPA is also reconsidering
these rules, on the same schedule as the Boiler MACT. For additional For additional
information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
21. Standards for Sewage Sludge Incinerators. On October 14, 2010, EPA proposed emission
standards for sewage sludge incinerators (SSI).40 SSI units, typically located at wastewater
treatment facilities, burn dewatered sludge. The standards would limit emissions of mercury and
four other hazardous air pollutants, as well as particulates and other conventional pollutants.
There are currently 218 SSI units, according to EPA, and the total cost of compliance could be as
37
U.S. EPA, “EPA Announces Next Steps on Emissions Standards for Boilers, Certain Incinerators,” Press Release,
January 20, 2011, at http://yosemite.epa.gov/opa/admpress.nsf/6424ac1caa800aab85257359003f5337/
58f5bee5e13c61228525781e007e9881.
38
Other
19. Emission Standards for Portland Cement Manufacturing. On September 9, 2010, EPA
promulgated New Source Performance Standards (NSPS) for conventional pollutants from new
cement kilns and Maximum Achievable Control Technology standards for hazardous air
pollutants from both existing and new cement kilns.44 When fully implemented in 2013, the
standards will require a 92% reduction in emissions of both particulate matter and mercury and a
97% reduction in emissions of acid gases, according to EPA, as well as controlling other
(...continued)
58f5bee5e13c61228525781e007e9881.
42
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and Institutional Boilers; ProposedFinal Rule,” 7576 Federal Register 31896, June 4, 2010.
3915554, March 21, 2011.
43
U.S. Environmental Protection Agency, “Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units; ProposedFinal Rule,” 75
Federal 76 Federal
Register 31938, June 4, 2010.
4015704, March 21, 2011.
44
U.S. Environmental Protection Agency, “Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Sewage Sludge Incineration Units; Proposed Rule,” 75 Federal Register 63260,
October 14National Emission Standards for Hazardous Air Pollutants from the
Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants; Final Rule,” 75
Federal Register 54970, September 9, 2010.
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much as $105 million annually, with benefits ranging from $130 million to $320 million annually.
For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Other
22. Emission Standards for Portland Cement Manufacturing. On September 9, 2010, EPA
promulgated New Source Performance Standards (NSPS) for conventional pollutants from new
cement kilns and Maximum Achievable Control Technology standards for hazardous air
pollutants from both existing and new sources in the Portland cement manufacturing industry.41
When fully implemented in 2013, the standards will require a 92% reduction in emissions of both
particulate matter and mercury and a 97% reduction in emissions of acid gases, according to EPA,
as well as controlling other 14
.
EPA Regulations: Too Much, Too Little, or On Track?
pollutants. EPA had previously issued emission standards for this
industry in 1999, but the
standards were challenged in court and remanded to the agency by the
D.C. Circuit Court of
Appeals. The new rules reflect EPA’s reconsideration of the standards.
The agency estimates that it will cost the industry $350 million annually to comply with the
standards, but that benefits (including the avoidance of 960 to 2,500 premature deaths in people
with heart disease) will be worth $6.7 billion to $18 billion annually. The trade association
representing the industry says the standards will cause some facilities to close.
Further regulation of this industry, which is the third highest U.S. source of carbon dioxide
emissions, is under consideration: when EPA announced the revised rules, it stated in the
preamble to the rule that it is “working towards a proposal for GHG standards” for these plants.4245
For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
23.-2420.-21. Stationary Internal Combustion Engines. EPA set standards for both compressionignition43compressionignition46 (generally diesel) and spark ignition (generally gasoline) stationary engines44engines47 in 2010.
The regulations would affect piston-driven (reciprocating) stationary engines, such as emergency
power generators used by
hospitals and other sources and electric power generators used for
compressors and pumps by a
wide array of industrial, agricultural, and oil and gas industry
sources. The rules are referred to as
the RICE (Reciprocating Internal Combustion Engine) rules.
They apply to engines that meet
specific siting, age, and size criteria (generally engines of 500
horsepower or less). EPA estimates
that more than 1.2 million engines will be affected by the
regulations. Depending on the type of
engine, owners will have to install pollution control
equipment or follow certain work practice
standards, such as burning low sulfur fuel or
conducting performing oil changes and inspections. EPA
estimates the health benefits of the two rules will be
between $1.45 billion and $3.5 billion
annually by 2013. Annualized costs for the rules are
estimated to be $626 million in 2013. For
additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
41
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants from the
Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants; Final Rule,” 75
Federal Register 54970, September 9, 2010.
42
Ibid., p. 54997.
43
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants: Reciprocating
Internal Combustion Engines; Final Rule,” 75 Federal Register 9648, March 3, 2010.
44
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for
Reciprocating Internal Combustion Engines; Final Rule,” 75 Federal Register 51570, August 20, 2010.
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EPA Regulations: Too Much, Too Little, or On Track?
25.-26 jmccarthy@crs.loc.gov).
22.-23. Ocean-Going Ships. EPA took two steps to control emissions from ocean-going ships in
2009 and 2010. It promulgated emission standards for new marine engines45engines48 and it proposed the
establishment of Emission Control Areas extending 200 nautical miles off most U.S. shores.4649 In
the Emission Control Areas (ECAs), which received final approval in March 2010, both U.S. and
foreign ships would be required to use low sulfur fuel. In both cases, the actions reflect
international standards that the United States and other maritime nations have agreed to under the
International Convention for the Prevention of Pollution from Ships (MARPOL). EPA estimated
the cost of these two initiatives at over $3 billion annually by 2030, mostly attributable to the
cleaner fuel requirement. The agency also estimated that monetized benefits of the requirements
will exceed costs by more than 30 to 1. The proposal and the new standards were supported by
45
Ibid., p. 54997.
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants: Reciprocating
Internal Combustion Engines; Final Rule,” 75 Federal Register 9648, March 3, 2010.
47
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for
Reciprocating Internal Combustion Engines; Final Rule,” 75 Federal Register 51570, August 20, 2010.
48
U.S. Environmental Protection Agency, “Control of Emissions from New Marine Compression-Ignition Engines at
or Above 30 Liters per Cylinder; Final Rule,” 75 Federal Register 22896, April 30, 2010.
49
International Maritime Organization, Marine Environmental Protection Committee, “Proposal to Designate an
Emission Control Area for Nitrogen Oxides, Sulphur Oxides and Particulate Matter, Submitted by the United States
and Canada,” April 2, 2009, at http://www.epa.gov/oms/regs/nonroad/marine/ci/mepc-59-eca-proposal.pdf.
46
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EPA Regulations: Too Much, Too Little, or On Track?
both industry and environmental groups. For additional information, contact Jim McCarthy (77225, jmccarthy@crs.loc.gov).
Clean Water Act
2724. Construction Site Effluent Limitation Guidelines. On December 1, 2009, EPA promulgated
regulations under the Clean Water Act (CWA), called effluent limitation guidelines (ELGs), to
limit pollution from stormwater runoff at construction sites.4750 The rule, called the Construction
and Development ELG, took effect February 1, 2010. OMB determined that it is an economically
significant rule. It requires construction sites that disturb one or more acres of land to use erosion
and sediment control best management practices to ensure that soil disturbed during construction
activity does not pollute nearby waterbodies. For construction sites disturbing 10 acres or more,
the rule established, for the first time, enforceable numeric limits on stormwater runoff pollution.
EPA issued the rule in response to a 2004 lawsuit filed by an environmental group; in 2006, a
federal court ordered EPA to issue a final rule by December 1, 2009. The rule affects about
82,000 firms involved in residential, commercial, highway, street, and bridge construction. EPA
has issued effluent guidelines for 56 industries that include many types of discharges, such as
manufacturing and service industries. These guidelines are implemented in discharge permits
issued by states and EPA. Several industry groups challenged the Construction and Development
ELG. In response, EPA examined the data set underlying a portion of the rule and concluded that
it improperly interpreted the data. In August 2010, a federal appeals court granted EPA’s request
for remand of a portion of the rule to conduct a rulemaking to correct the numeric effluent
limitation, which EPA expects to promulgate early in 2011 with an effective date of June 29,
2011propose by December 2, 2011, and to finalize by November 19,
2012. On November 5, 2010, EPA promulgated a direct final rule to stay the effectiveness of the
2009 rule until a revised rule is developed.48 For additional information, contact Claudia
Copeland (7-7227, ccopeland@crs.loc.gov).
45
U.S. Environmental Protection Agency, “Control of Emissions from New Marine Compression-Ignition Engines at
or Above 30 Liters per Cylinder; Final Rule,” 75 Federal Register 22896, April 30, 2010.
46
International Maritime Organization, Marine Environmental Protection Committee, “Proposal to Designate an
Emission Control Area for Nitrogen Oxides, Sulphur Oxides and Particulate Matter, Submitted by the United States
and Canada,” April 2, 2009, at http://www.epa.gov/oms/regs/nonroad/marine/ci/mepc-59-eca-proposal.pdf.
47
U.S. Environmental Protection Agency, “Effluent Limitation Guidelines for the Construction and Development Point
Source Category,” 74 Federal Register 62996-63058, December 1, 2009.
48
U.S. Environmental Protection Agency, “Direct Final Rule Staying Numeric Limitation for the Construction and
Development Point Source Category,” 75 Federal Register 68215-68217, November 5, 2010.
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EPA Regulations: Too Much, Too Little, or On Track?
28. Airport Deicing Effluent Limitation Guidelines. In August 2009, EPA proposed regulations
under the CWA to limit water pollution from aircraft and airport runway deicing operations. 49 The
proposed rule would apply to 218 airports and would require them to recover at least a specified
portion of available deicing/anti-icing fluid after it is sprayed on aircraft, meet a specified effluent
limit for wastewater collected and discharged, and certify that they use pavement deicers that do
not contain urea. In general, it would require large airports to collect 60% of deicing fluid and
treat or reuse it. The estimated cost of the rule is $91 million, making it a significant but not
“economically significant” rule. The proposed rule has been under development for several years
and is part of ongoing EPA activities under the CWA to regulate wastewater discharges from
categories of industries through new and revised effluent limitation guidelines. There is no legal
deadline, but EPA expects to promulgate a final rule by March 2011. For additional information,
contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
2951 For additional information, contact Claudia
Copeland (7-7227, ccopeland@crs.loc.gov).
25. Pesticide Application General Permit. EPA is developing a CWA general permit to control
pesticides that are applied to waters of the United States, such as aerial application of insecticide
to control mosquitoes. The general permit will be issued in response to a 2009 federal court
decision that invalidated a 2006 EPA rule, which had codified the agency’s long-standing view
that pesticide applications that comply with federal pesticides law do not require CWA permits.
The federal court’s order requiring EPA to issue permits takes effect April 9, 2011. EPA proposed
a draft permit June 4, 2010.50 The estimated universe of affected activities is approximately 5.6
million applications annually, which are performed by 365,000 applicators. EPA was expected to
finalize the permit by December 2010. However, on March 3, the government asked the court to
court approved a government
request to grant an additional stay—until October 31—of the effective date of the court’s ruling,
because the
agency is still completing work on the final permit. To meet the October 31 deadline,
EPA was expected to publish the final general permit by July 30, providing time for states and
others to review its requirements, but the final permit has been delayed as a result of interagency
review. However, even before July 30, a pre-publication version of the final permit was posted on
EPA’s website.52 Under OMB’s criteria, the permit is not Under OMB’s criteria, it is a significant rule,
but “economically significant.”51 Meanwhile, two House committees have approved legislation
(H.R. 872) that is intended to overturn the court’s 2009 ruling by exempting aerial pesticide
application activities from clean water permit requirements. For additional information, contact
Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
30 but is “economically
50
U.S. Environmental Protection Agency, “Effluent Limitation Guidelines for the Construction and Development Point
Source Category,” 74 Federal Register 62996-63058, December 1, 2009.
51
U.S. Environmental Protection Agency, “Direct Final Rule Staying Numeric Limitation for the Construction and
Development Point Source Category,” 75 Federal Register 68215-68217, November 5, 2010.
52
See http://www.epa.gov/npdes/pesticides.
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EPA Regulations: Too Much, Too Little, or On Track?
significant.”53 Meanwhile, on March 31 the House passed legislation (H.R. 872) that is intended
to overturn the court’s 2009 ruling by exempting aerial pesticide application activities from clean
water permit requirements. The Senate Agriculture Committee also has approved H.R. 872.54 For
additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
26. Florida Nutrient Water Quality Standards. The CWA directs states to adopt water quality
standards for their waters and authorizes EPA to promulgate new or revised standards if a state’s
actions fail to meet CWA requirements. Water quality standards consist of designated uses,
criteria to protect the designated uses, and an antidegradation statement. They serve as the
framework for pollution control measures specified for individual sources. Because of severe
water quality impairment of Florida waters by nutrients (nitrogen and phosphorus) from diverse
sources including agriculture and livestock, municipal and industrial wastewater discharges, and
urban stormwater runoff, EPA determined in 2009 that Florida’s existing narrative water quality
standards for nutrients must be revised in the form of numeric criteria that will enable Florida to
49
U.S. Environmental Protection Agency, “Effluent Limitation Guidelines and New Source Performance Standards for
the Airport Deicing Category; Proposed rule,” 74 Federal Register 44676-44718, August 28, 2009.
50
U.S. Environmental Protection Agency, “Draft National Pollutant Discharge Elimination System (NPDES) Pesticide
General Permit for Point Source Discharges From the Application of Pesticides,” 75 Federal Register 31775-31785,
June 4, 2010.
51
“Significant” rules are a broader OMB category that includes not only the economically significant (i.e., primarily
those with an annual effect on the economy of $100 million or more), but also rules that “create a serious inconsistency
or otherwise interfere with an action taken or planned by another agency”; “materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof”; or “raise novel
legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth” in Executive
Order 12866.
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EPA Regulations: Too Much, Too Little, or On Track?
better control nutrient pollution. In 2009 EPA entered into a consent decree with environmental
litigants requiring the agency to promulgate numeric nutrient water quality standards for Florida.
To meet the legal deadline, EPA promulgated the first phase of these standards on December 5,
2010.5255 In response to criticism of the standards, EPA delayed the effective date of the final rule
for 15 months (until March 2012), to allow local governments, businesses, and the state of Florida
time to review the
standards and develop implementation strategies. Further, in June, EPA
informed state officials that the agency could seek extension of deadlines in the consent decree, if
it determines by March 2012 that the state has made substantial progress towards adopting an
approvable rule. Nevertheless, separate legal challenges to the
rule have been filed in federal
court by environmental advocates, the state of Florida, and others. At EPA’s request, the National
Academy of Sciences is reviewing the agency’s economic analysis of the costs of state
implementation of the 2010 standards for lakes and flowing waters in Florida.
The second phase of standards is due to be issued by October 2011. Water quality standards do
not have the force of law until the state translates them into permit limits or otherwise imposes
pollution control requirements on dischargers in the state. The rule will not establish any
requirements directly applicable to regulated entities or other sources of nutrient pollution. While
few dispute the need to reduce nutrients in Florida’s waters, EPA’s rule has been controversial,
involving disputes about the data underlying the proposal, potential costs of complying with
numeric standards when they are incorporated into discharge permit limitations, and disputes over
administrative flexibility. EPA estimated that the potential incremental costs associated with the
rule range from $16 million to $25 million per year, and monetized benefits of $28 million per
year. Many stakeholders contend that EPA has greatly underestimated costs. The rule was
determined by OMB to be a significant regulatory action, but not “economically significant.” For
additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
3153
“Significant” rules are a broader OMB category that includes not only the economically significant (i.e., primarily
those with an annual effect on the economy of $100 million or more), but also rules that “create a serious inconsistency
or otherwise interfere with an action taken or planned by another agency”; “materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof”; or “raise novel
legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth” in Executive
Order 12866.
54
For additional information, see CRS Report RL32884, Pesticide Use and Water Quality: Are the Laws
Complementary or in Conflict?, by Claudia Copeland.
55
U.S. Environmental Protection Agency, “Water Quality Standards for the State of Florida’s Lakes and Flowing
Waters; Final Rule,” 75 Federal Register 75762-75807, December 5, 2010.
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27. Chesapeake Bay TMDL. Pursuant to a court-ordered schedule, EPA has developed a plan,
called a Total Maximum Daily Limit (TMDL), to restore nutrient-impaired waters of the
Chesapeake Bay. The TMDL is required because states in the Chesapeake Bay watershed have
failed to meet deadlines to attain water quality goals for the Bay, thus triggering Clean Water Act
requirements that the federal government must develop a plan to do so. The TMDL is not a
regulation. A TMDL represents the maximum amount of a pollutant that a body of water may
receive and still meet its water quality standards. Individual actions needed to meet the overall
pollutant limits specified in the TMDL, such as discharge permit limits or other controls, are to be
developed by the Chesapeake Bay states in Watershed Implementation Plans. The Chesapeake
Bay TMDL is the largest ever developed by EPA or any state, since it will apply to all impaired
waters of the 64,000 square miles of the six states in the Bay watershed. On December 29, 2010,
EPA issued the TMDL, thus meeting its self-imposed December 31 deadline to do so.5356 For
additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
3228. Revised Stormwater Rule. EPA is exploring regulatory options to strengthen the existing
regulatory program for managing stormwater, which is a significant source of water quality
impairments nationwide. Under the current program, large cities and most industry sources are
subject to CWA rules issued in 1990; smaller cities, other industrial sources, and construction
sites are covered by rules issued in 1999. EPA is considering options to strengthen stormwater
regulations, including establishing post-construction requirements for stormwater discharges from
new development and redevelopment, which currently are not regulated. The agency has not
proposed specific regulatory changes, but it is expected to issue a proposed rule late in 2011, to be
finalized in 2012. The rule is expected to focus on stormwater discharges from developed, or
52
U.S. Environmental Protection Agency, “Water Quality Standards for the State of Florida’s Lakes and Flowing
Waters; Final Rule,” 75 Federal Register 75762-75807, December 5, 2010.
53
Notice of the TMDL appeared in the Federal Register January 5, 2011. U.S. Environmental Protection Agency,
“Clean Water Act Section 303(d): Notice for the Establishment of the Total Maximum Daily Load (TMDL) for the
Chesapeake Bay,” 76 Federal Register 549-550, January 5, 2011.
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post-construction sites such as subdivisions, roadways, industrial facilities and commercial
buildings, or shopping centers. In early 2010, EPA held a series of listening sessions across the
country as part of a process seeking public comments on potential considerations for regulatory
changes. For additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
3329. Revised Cooling Water Intake Rule. EPA is expected to proposehas proposed a CWA rule to protect fish
from from
entrainment by cooling water intake structures at existing powerplantspower plants and certain other
industrial facilities. The proposed rule will revise EPA regulations issued in 2004 that were
challenged in federal court by electric utility companies and others and were remanded to EPA by
court order in 2007 and rules issued in 2006 that also apply to new offshore oil and gas facilities
and existing manufacturing facilities, which EPA asked a court to remand to the agency for
modification. 5457 The proposal will also respondalso responds to a 2009 U.S. Supreme Court ruling which said
that,
in developing the revised cooling water intake structure rule, EPA can consider the costs and
benefits of protecting fish and other aquatic organisms. 55 The rule, when proposed, will combine
58 The rule combines cooling water intake
rules that apply to approximately 1,200150 existing electric generating and
manufacturing plants. On
December 3, 2010, a federal court issued an order endorsing terms of a
settlement agreement
between EPA and environmental groups, which establishes a March 14,
2011, deadlineestablishing deadlines for the agency to propose and
finalize a revised cooling water intake rule. EPA proposed the rule on March 28 and, under the
consent decree, is required to take final action by July 27, 2012. Even before release, the
proposed rule was highly controversial. Many in industry feared, while environmental groups
56
Notice of the TMDL appeared in the Federal Register January 5, 2011. U.S. Environmental Protection Agency,
“Clean Water Act Section 303(d): Notice for the Establishment of the Total Maximum Daily Load (TMDL) for the
Chesapeake Bay,” 76 Federal Register 549-550, January 5, 2011.
57
40 CFR §125.90 and 40 CFR §125.130.
58
Entergy Corp. v. Riverkeeper Inc., 129 S. Ct. 1498 (2009).
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EPA Regulations: Too Much, Too Little, or On Track?
hoped, that EPA would require installation of technology that most effectively minimizes impacts
of cooling water intake structures, but also is the most costly option. The EPA proposal declined
to mandate such technology universally and instead favors a less costly, more flexible regulatory
option.59a revised cooling water intake rule and a July 27, 2012,
deadline for promulgating a final rule. On March 15 EPA said that it is delaying its planned
released of the proposed rule until March 28 and that the parties to the litigation have agreed to
the extension. For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
3430. Revised Steam Electric Effluent Guidelines. Under authority of CWA Section 304, EPA
establishes national technology-based regulations, called effluent limitation guidelines (ELGs), to
reduce pollutant discharges from industries directly to waters of the United States and indirectly
to municipal wastewater treatment plants. These requirements are incorporated into discharge
permits issued by EPA and states. The current steam electric power plant rules56rules60 apply to about
1,200 nuclear- and fossil-fueled steam electric power plants nationwide, 500 of which are coalfired. In a 2009 study, EPA found that these regulations, which were promulgated in 1982, do not
adequately address the pollutants being discharged and have not kept pace with changes that have
occurred in the electric power industry over the last three decades. Pollutants of concern include
metals (e.g., mercury, arsenic, and selenium), nutrients, and total dissolved solids. The
rulemaking will address discharges from coal ash storage ponds and flue gas desulfurization
(FGD) air pollution controls, as well as other power plant waste streams.5761
Pursuant to a November 8, 2010 consent decree that it entered into with environmental litigants,
EPA agreed to propose the revised power plant ELG by July 23, 2012, and to finalize the rule by
January 31, 2014. For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
3531. Oil Spill Prevention, Control, and Countermeasure Requirements, including Exemption
for Milk Storage. To prevent the
discharge of oil from onshore and offshore facilities, EPA issued CWA regulations for spill
54
40 CFR §125.90 and 40 CFR §125.130.
Entergy Corp. v. Riverkeeper Inc., 129 S. Ct. 1498 (2009).
56
40 CFR § 423.10.
57
Separately, EPA also is considering regulation of coal ash disposal sites under Resource Conservation and Recovery
Act, as discussed in this report under “Coal Combustion Waste.”
55
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issued CWA regulations for spill prevention control and countermeasure (SPCC) plans in 1973.58 62
SPCC plans apply to owners or
operators of certain non-transportation-related facilities. In
general, SPCC plans focus on oil spill
prevention, requiring, for example, secondary containment
(e.g., dikes or berms) for oil-storage
equipment.
Following the passage of the Oil Pollution Act of 1990, the agency proposed substantial changes
and clarifications that were not made final until July 2002.5963 However, EPA has both extended the
2002 rule’s compliance date (on multiple occasions) and made further amendments to the 2002
rule. In a November 2009 rule,6064 EPA (among other actions) eliminated specific
exclusions/exemptions made by a December 2008 rulemaking. 6165 Under a rule promulgated on
October 14, 2010,62
59
The rule was published in the Federal Register on April 20. U.S. Environmental Protection Agency, “National
Pollutant Discharge Elimination System—Cooling Water Intake Structures at Existing Facilities and Phase 1
Facilities,” 76 Federal Register 22174-22228, April 20, 2011. For information, see CRS Report R41786, Cooling
Water Intake Structures: Summary of EPA’s Proposed Rule, by Claudia Copeland.
60
40 CFR § 423.10.
61
Separately, EPA also is considering regulation of coal ash disposal sites under Resource Conservation and Recovery
Act, as discussed in this report under “Coal Combustion Waste.”
62
38 Federal Register 34164, December 11, 1973.
63
67 Federal Register 47041, July 17, 2002.
64
U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
(SPCC) Rule—Amendments,” 74 Federal Register 58784, November 13, 2009.
65
73 Federal Register 74236, December 5, 2008.
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October 14, 2010,66 the current deadline for complying with SPCC requirements for most
facilities is November 10, 2011.
Pursuant to the CWA definition of oil, the SPCC requirements apply to petroleum-based and nonpetroleum-based oil. 6367 In a 1975 Federal Register notice, EPA clarified that its 1973 SPCC
regulations apply to oils from animal and vegetable sources.6468 EPA has subsequently stated that
“milk
typically contains a percentage of animal fat, which is a non-petroleum oil” and is thus potentially
subject to SPCC provisions.6569 However, in January 2009, EPA proposed a conditional exemption from
SPCC requirements for milk storage units.66 This exemption has not been finalized, but in its
October 14, 2010 rule, EPA provided a specific extension for facilities subject to milk storage
SPCC provisions, delaying compliance for one year from the effective date of the relevant final
rule. For additional
from SPCC requirements for milk storage units.70 EPA issued a final rule April 18, 2011,
exempting all milk and milk product containers and associated piping from the SPCC
requirements. EPA’s rationale for the exemption is that these units are subject to industry
standards for sanitation and may be regulated by other agencies, including the U.S. Department of
Agriculture.71 In addition, the final rule states that exempted milk storage units are not included in
a facility’s overall oil storage volume, a primary factor for SPCC applicability. For additional
information, contact Jonathan Ramseur (7-7919, jramseur@crs.loc.gov).
36. Mountaintop Mining in Appalachia. EPA and other federal agencies (the Office of Surface
Mining and Reclamation, in the Department of the Interior; and the U.S. Army Corps of
Engineers) are developing a series of actions and regulatory proposals to reduce the harmful
environmental and health impacts of surface coal mining, including mountaintop removal mining,
in Appalachia. The actions, announced in a June 2009 interagency Memorandum of
Understanding, are intended to tighten regulation and strengthen environmental reviews of permit
requirements under the CWA and the Surface Mining Control and Reclamation Act (SMCRA).
EPA is a key participant in several of the actions. EPA and the Corps are conducting detailed
evaluations of 79 pending CWA permit applications for surface mining activities in order to limit
environmental impacts of the proposed activities. In June 2010, the Army Corps suspended the
use of a particular CWA general permit for surface coal mining activities in Appalachia and
proposed a rule to prohibit its use entirely; a finalized rule, expected in 2012, would apply more
58
38 Federal Register 34164, December 11, 1973.
67 Federal Register 4704, July 17, 2002.
60
U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
(SPCC) Rule—Amendments,” 74 Federal Register 58784, November 13, 2009.
61
73 Federal Register 74236, December 5, 2008.
59
6232. ‘Waters of the United States’ Interpretive Guidance. From the earliest days, Congress has
grappled with where to set the line between federal and state authority over the nation’s
waterways. Typically, this debate occurred in the context of federal legislation restricting uses of
waterways that impaired navigation and commerce. The phrase Congress often used to specify
waterways over which the federal government had authority was “navigable waters of the United
States.” However, in the legislation that became the CWA of 1972, Congress felt that the term
was too constricted to define the reach of a law whose purpose was not maintaining navigability,
as in the past, but rather preventing pollution. Accordingly, in the CWA Congress retained the
traditional term “navigable waters,” but defined it broadly to mean “waters of the United States.”
That phrase is important in the context of section 404 of the law, a permit program jointly
administered by EPA and the Army Corps of Engineers that regulates discharges of dredged and
fill material to U.S. waters, including wetlands. The same phrase also defines the geographic
extent of the other parts of the CWA, including state-established water quality standards, the
discharge permit program in section 402, oil spill liability, and enforcement. Consequently, how
broadly or narrowly “waters of the United States” is defined has been a central question of CWA
law and policy for nearly 40 years.
Controversies increased following two Supreme Court rulings, one in 2001 and one in 2006, on
how “waters of the United States” are defined for purposes of the 404/wetlands permit program.
Those two rulings left many uncertainties about their interpretation, uncertainties that first the
Bush Administration and now the Obama Administration have attempted to clarify through a
series of interpretive guidance documents. Most recently, in April, EPA and the Army Corps
jointly proposed new guidance in an effort to clarify the geographic reach of federal regulation, in
light of the law, the Court’s rulings, and science. Under the new guidance, federal protection of
66
U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Rule Compliance Date Amendment ,” 75 Federal Register 63093, October 14, 2010.
6367
See CWA Section 311(a) (33 U.S.C. 1321(a)).
6468
40 Federal Register 28849, July 9, 1975.
6569
74 Federal Register 2461, January 15, 2009.
6670
U.S. Environmental Protection Agency, “Oil Pollution Prevention: Spill Prevention, Control, and Countermeasure
Rule Requirements—Amendments,” 74 Federal Register 2461, January 15, 2009.
71
76 Federal Register 21652, April 18, 2011.
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stringent CWA rules to these coal mining operations.67 In addition, in November 2009, the
Department of the Interior’s Office of Surface Mining (OSM) issued an Advance Notice of
Proposed Rulemaking (ANPR) describing options to revise a SMCRA rule, called the stream
buffer zone rule, which was promulgated in December 2008.68 The Obama Administration
identified the 2008 rule, which exempts so-called valley fills and other mining waste disposal
activities from requirements to protect a 100-foot buffer zone around streams, for revision as part
of the series of actions concerning surface coal mining in Appalachia. In June 2010, OSM said it
will prepare an Environmental Impact Statement on the buffer zone rule; it will propose a revised
rule later, but there is no known timetable.69 For additional information, contact Claudia Copeland
(7-7227, ccopeland@crs.loc.gov).
Safe Drinking Water Act
37. Geologic Sequestration of Carbon Dioxide. Completing an initiative of the Bush
Administration, EPA promulgated regulations on December 10, 2010, to create a nationally
consistent framework for managing the underground injection of carbon dioxide (CO2) for
geologic sequestration purposes, to mitigate emissions of this greenhouse gas.70 EPA proposed the
rule in July 2008. The rule creates a new class of underground injection wells (Class VI) for
geologic sequestration, and establishes national requirements that would apply to these wells to
ensure that CO2 injection does not endanger underground sources of drinking water. The rule
builds on the existing Underground Injection Control (UIC) program under the Safe Drinking
Water Act, including requirements for well owners and operators to ensure that wells are
appropriately located, constructed, tested, monitored, and ultimately closed. Well owners or
operators must maintain financial assurance so that wells can be plugged and abandoned properly.
EPA’s stated regulatory goal is to have effective permitting regulations in place to ensure that
geologic sequestration can occur in a safe and effective manner in order to enable commercialscale carbon capture and storage (CCS) projects to move forward. For additional information,
contact Mary Tiemann (7-5937, mtiemann@crs.loc.gov).
Toxic Substances Control Act (TSCA)
38.-4020
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EPA Regulations: Too Much, Too Little, or On Track?
water quality would apply to more waters than currently are considered jurisdictional—a
conclusion that has pleased some and alarmed others.72 The proposed guidance was subject to
public comment until July 31, 2011. After the guidance is finalized, the agencies expect to
propose revisions to regulations to further clarify which waters are subject to CWA jurisdiction,
consistent with the Supreme Court’s rulings, but there is no schedule for when this will occur.73
For additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
33. Mountaintop Mining in Appalachia. EPA and other federal agencies (the Office of Surface
Mining and Reclamation, in the Department of the Interior; and the U.S. Army Corps of
Engineers) are developing a series of actions and regulatory proposals to reduce the harmful
environmental and health impacts of surface coal mining, including mountaintop removal mining,
in Appalachia. The actions, announced in a June 2009 interagency Memorandum of
Understanding, are intended to tighten regulation and strengthen environmental reviews of permit
requirements under the CWA and the Surface Mining Control and Reclamation Act (SMCRA).
EPA is a key participant in several of the actions. EPA and the Corps are conducting detailed
evaluations of 79 pending CWA permit applications for surface mining activities in order to limit
environmental impacts of the proposed activities. In June 2010, the Army Corps suspended the
use of a particular CWA general permit for surface coal mining activities in Appalachia and
proposed a rule to prohibit its use entirely; a finalized rule, expected in 2012, would apply more
stringent CWA rules to these coal mining operations.74 In addition, in November 2009, the
Department of the Interior’s Office of Surface Mining (OSM) issued an Advance Notice of
Proposed Rulemaking (ANPR) describing options to revise a SMCRA rule, called the stream
buffer zone rule, which was promulgated in December 2008.75 The Obama Administration
identified the 2008 rule, which exempts so-called valley fills and other mining waste disposal
activities from requirements to protect a 100-foot buffer zone around streams, for revision as part
of the series of actions concerning surface coal mining in Appalachia. In June 2010, OSM said it
will prepare an Environmental Impact Statement on the buffer zone rule; it will propose a revised
rule later, but there is no known timetable.76 For additional information, contact Claudia Copeland
(7-7227, ccopeland@crs.loc.gov).
Toxic Substances Control Act (TSCA)
34.-36. Lead: Renovation, Repair, and Painting Program Rules. EPA has revised a 2008 final
rule implementing Section 402(c)(3) of the Toxic Substances Control Act (TSCA; enacted as the
Residential Lead-Based Paint Hazard Reduction Act of 1992.) The rule aims to reduce human
health hazards associated with exposure to lead-based paint. It established requirements for
training and certifying workers and firms that remodel, repair, or paint homes or child-occupied
public or commercial buildings likely to contain lead-based paint (generally built before 1978).
6772
Environmental Protection Agency and Army Corps of Engineers, “Draft Guidance on Identifying Waters Protected
by the Clean Water Act,” April 27, 2011, p. 2, http://water.epa.gov/lawsregs/guidance/wetlands/upload/
wous_guidance_4-2011.pdf.
73
For additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA) Is
Revisited by the Supreme Court: Rapanos v. United States, by Robert Meltz and Claudia Copeland.
74
Department of the Army, Corps of Engineers, “Suspension of Nationwide Permit 21,” 75 Federal Register 3471134714, June 18, 2010.
6875
U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Stream Buffer Zone and
Related Rules; Advance notice of proposed rulemaking; notice of intent to prepare a supplemental environmental
impact statement (SEIS),” 74 Federal Register 62664-62668, November 30, 2009.
6976
U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Stream Protection Rule;
Environmental Impact Statement,” 75 Federal Register 34666-34669, June 18, 2010.
70
U.S. Environmental Protection Agency, “Federal Requirements Under the Underground Injection Control Program:
Carbon Dioxide (CO) Geologic Sequestration Wells; Final Rule,” 75 Federal Register 77230, December 10, 2010.
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training and certifying workers and firms that remodel, repair, or paint homes or child-occupied
public or commercial buildings likely to contain lead-based paint (generally built before 1978).
Shortly after promulgation of the 2008 version of the rule, several petitions were filed challenging
it. The U.S. Court of Appeals for the District of Columbia Circuit consolidated the petitions and,
in August 2009, EPA signed a settlement agreement with the petitioners. The agreement set legal
deadlines for a number of EPA rulemaking actions. One rule proposed May 6, 2010, addresses
public and commercial buildings that are not child-occupied.7177 A second rule, also proposed in
May 2010, addresses addressed the testing requirements after renovations are complete. 72 A third rule
promulgated in May 2010 eliminates78 That rule was
revised and promulgated July 15, 2011, effective October 4, 2011.79 The third rule, promulgated
in May 2010, eliminated an opt-out provision that would have exempted a renovation
firm from
training and work practice requirements if certification were obtained from the
property owner
that no child under age 6 or pregnant woman resides in a facility and no children
spend spend
significant amounts of time there. 7380 That rule also revises recordkeeping and disclosure
provisions. EPA has estimated that this third rule would add $500 million to the cost of the 2008
renovation, repair, and painting program in the first year and $300 million per year starting with
the second year. In May 2010, Congress adopted an amendment to H.R. 4899, a bill providing
supplemental appropriations which later became P.L. 111-212. The amendment prohibited the use
of appropriated funds“funds made available by this Act” to levy fines or to hold any person liable for work
performed under the rule.
In June 2010, EPA published a memorandum informing enforcement division directors in the
regional offices that the Agency would not enforce certain requirements for certification of firms
or for individual training until after October 1, 2010. However, individual renovators must be
enrolled in required training classes before that date and all must complete required training prior
to December 31, 2010, according to the memorandum. For additional information, contact LindaJo Schierow (7-7279, lschierow@crs.loc.gov).
RCRA/Superfund
41 However, P.L. 111-212 provided no funds to EPA for those purposes, so
the provision had no effect on EPA’s use of existing funds that had been appropriated to enforce
the rule by the Department of the Interior, Environment, and Related Agencies Appropriations
Act, 2010 (P.L. 111-88).81 In June 2010, on its own initiative, EPA published a memorandum
informing enforcement division directors in the regional offices that the Agency would not
enforce certain requirements for certification of firms or for individual training until after October
1, 2010. However, individual renovators must have been enrolled in required training classes
before that date and all must have completed required training prior to December 31, 2010,
according to the memorandum. For additional information, contact Linda-Jo Schierow (7-7279,
lschierow@crs.loc.gov)
RCRA/Superfund
37. Coal Combustion Waste. In 2008, coal-fired power plants accounted for almost half of U.S.
electric power, resulting in approximately 136 millionsmillion tons of coal combustion waste (CCW). On
December 22, 2008, national attention was turned to risks associated with managing CCW when
a breach in a surface impoundment pond at the Tennessee Valley Authority’s Kingston, TN, plant
released 1.1 billion gallons of coal ash slurry, covering hundreds of acres and damaging or
destroying homes and property. In addition to the risk of a sudden, catastrophic release such as
that at Kingston, EPA has determined that CCW disposal in unlined landfills and surface
impoundments presents substantial risks to human health and the environment from releases of
toxic constituents (particularly arsenic and selenium) into surface and groundwater. To establish
national standards intended to address risks associated with potential CCW mismanagement, on
June 21, 2010, EPA proposed two regulatory options to manage the waste;74 the agency has not
yet promulgated a final rule and has not projected a date for doing so. The first option would
draw on EPA’s existing authority to identify a waste as hazardous and regulate it under the waste
management standards established under Subtitle C of the Resource Conservation and Recovery
7177
U.S. Environmental Protection Agency, “Lead; Renovation, Repair, and Painting Program for Public and
Commercial Buildings; Proposed Rule,” 75 Federal Register 24848-24862, May 6, 2010.
78
U.S. Environmental Protection Agency, “Lead;Clearance and Clearance Testing Requirements for the Renovation, Repair,
and Painting Program for Public and
Commercial Buildings: Lead; Proposed Rule,” 75 Federal Register 24848-2486225038-25073, May 6, 2010.
7279
U.S. Environmental Protection Agency, “Lead: Clearance and Clearance Testing Requirements for the Renovation,
Repair,
and Painting Program: Lead; Proposed Rule,” 75 Federal Register 25038-25073, May 6, 2010.
73,” Final Rule, 76 Federal Register 47918-47946, July 15, 2011.
80
U.S. Environmental Protection Agency, “Amendment to the Opt-out and Recordkeeping Provisions in the
Renovation, Repair, and Painting Program: Lead; Final Rule,” 75 Federal Register 24802-24819, May 6, 2010.
74
U.S. Environmental Protection Agency, “Hazardous and Solid Waste Management System; Identification and Listing
of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities,” 75 Federal Register 35127-35264,
June 21, 2010.
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Act (RCRA). The second option would establish regulations applicable to CCW disposal units
under RCRA’s Subtitle D solid waste management requirements. In its Regulatory Impact
Analysis, EPA estimated the average annualized regulatory costs to be approximately $1.5 billion
a year under the Subtitle C option or $587 million a year under the Subtitle D option, but there
could be additional costs or benefits depending on how the rule affects the recycling of coal ash.
For additional information, contact Linda Luther (7-6852, lluther@crs.loc.gov).
42. Identification of Materials That Are Solid Wastes. In conjunction with the proposed boiler
and incinerator emission standards discussed above in items 18, 19, and 20, EPA proposed
regulations intended to clarify when certain materials burned as fuel in a combustion unit would
be considered a “solid waste.”75 The proposed definition of solid waste plays an important role in
the regulations for boilers and incinerators because the 2007 D.C. Circuit decision vacating EPA’s
boiler standards concluded that the Clean Air Act “requires any unit that combusts ‘any solid
waste material at all’—regardless of whether the material is being burned for energy recovery—to
be regulated as a ‘solid waste incineration unit.’”76 EPA states that this regulatory action would
not directly invoke any costs or benefits. However, the agency acknowledges that the proposal
would significantly narrow the current universe of non-hazardous secondary materials that could
be burned in boilers—simultaneously expanding the number of combustion units subject to the
more stringent emission standards applicable to incinerators (item 20 above).77 Concerns have
been expressed about the impact that the proposed rule would have on existing state and federal
requirements applicable to the use of used tires and off-specification used oil that are burned as
fuel. There is no court order setting a deadline for this rule, but given its role in determining
whether units will be subject to boiler or incinerator standards, it needs to be finalized within
roughly the same time period as those standards, early in 2011. For additional information,
contact Linda Luther (7-6852, lluther@crs.loc.gov).
43. Guidance for Cleanup of Dioxin in Surface Soils. On January 7, 2010, EPA proposed
interim guidance that would make the goals for cleanup of dioxins in soil more stringent. 78
Although the guidance would not have the force of regulation, it would establish new
“preliminary remediation goals” that would serve as EPA’s recommended baseline for making
cleanup decisions at contaminated sites addressed under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA, or Superfund) and the Resource
Conservation and Recovery Act (RCRA). For residential soil, the current goal of 1,000 parts per
trillion (ppt) would be tightened to 72 ppt. For soil at commercial or industrial sites, the proposed
guidance would tighten the goal from the current 5,000-20,000 ppt level to 950 ppt. For
additional information, contact David Bearden (7-2390, dbearden@crs.loc.gov).
75
Environmental Protection Agency, Proposed Rule, “Identification of Non-Hazardous Secondary Materials That Are
Solid Waste,” 75 Federal Register 31843, June 4, 2010.
76
Cited in the proposed rule at 75 Federal Register 31848.
77
See EPA’s web page “Identification of Non-Hazardous Materials That Are Solid Waste: Proposed Rule” at
http://www.epa.gov/epawaste/nonhaz/define/index.htm.
78
U.S. Environmental Protection Agency, “Draft Recommended Interim Preliminary Remediation Goals for Dioxin in
Soil at CERCLA and RCRA Sites,” 75 Federal Register 984, January 7, 2010.
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81
Sven-Erik Kaiser, EPA Congressional Liaison, personal communication, Sept. 14, 2011.
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impoundments presents substantial risks to human health and the environment from releases of
toxic constituents (particularly arsenic and selenium) into surface and groundwater. To establish
national standards intended to address risks associated with potential CCW mismanagement, on
June 21, 2010, EPA proposed two regulatory options to manage the waste.82 The first option
would draw on EPA’s existing authority to identify a waste as hazardous and regulate it under the
waste management standards established under Subtitle C of the Resource Conservation and
Recovery Act (RCRA). The second option would establish regulations applicable to CCW
disposal units under RCRA’s Subtitle D solid waste management requirements. Under Subtitle D,
EPA does not have the authority to implement or enforce its proposed requirements. Instead, EPA
would rely on states or citizen suits to enforce new standards. In its Regulatory Impact Analysis,
EPA estimated the average annualized regulatory costs to be approximately $1.5 billion a year
under the Subtitle C option or $587 million a year under the Subtitle D option, but there could be
additional costs or benefits depending on how the rule affects the recycling of coal ash. EPA has
not projected a date to promulgate a final rule.83 Further, on March 3, 2011, in testimony at an
EPA budget hearing before the House Committee on Appropriations, Subcommittee on Interior,
Environment, and Related Agencies, EPA Administrator Lisa Jackson stated that she does not
anticipate a final rule to be promulgated in 2011. The cause of the delay was attributed to the
large number of public comments received. For additional information, contact Linda Luther (76852, lluther@crs.loc.gov).
38. Identification of Materials That Are Solid Wastes. In conjunction with emission standards
for boilers and solid waste incinerators discussed above in items 18, 19, and 20, EPA finalized
regulations intended to clarify when certain materials burned as fuel in a combustion unit would
be considered a “solid waste.”84 The definition of solid waste plays an important role in
implementing the emission standards for both boilers and solid waste incinerators. The 2007 D.C.
Circuit decision that vacated EPA’s previous emission standards for boilers also vacated EPA’s
definition of terms under its “CISWI Definitions Rule.”85 The D.C. Circuit concluded that EPA
erred in defining “commercial and industrial solid waste” to exclude solid waste that is burned at
a facility in a combustion unit whose design provides for energy recovery or which operates with
energy recovery. Instead, the D.C. Circuit stated that the Clean Air Act “requires any unit that
combusts ‘any solid waste material at all’—regardless of whether the material is being burned for
energy recovery—to be regulated as a ‘solid waste incineration unit.’”86 The final rule addresses
issues brought up by the D.C. Circuit and, in doing so, significantly narrows the current universe
of non-hazardous secondary materials that could be burned in boilers—simultaneously expanding
the number of combustion units subject to the more stringent emission standards applicable to
solid waste incinerators (item 20 above).87 The final rule also addresses a host of concerns raised
82
U.S. Environmental Protection Agency, “Hazardous and Solid Waste Management System; Identification and Listing
of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities,” 75 Federal Register 35127-35264,
June 21, 2010.
83
The Office of Management and Budget, Office of Information and Regulatory Affairs, “Unified Agenda of Federal
Regulatory and Deregulatory Actions,” published on December 10, 2010 (available online at http://www.reginfo.gov/
public/do/eAgendaMain), the estimated date of final action on this proposal is listed as “To Be Determined.”
84
Environmental Protection Agency, Final Rule, “Identification of Non-Hazardous Secondary Materials That Are Solid
Waste,” 76 Federal Register 15455, March 21, 2011.
85
Environmental Protection Agency, Final Rule, “Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units,” 70 Federal Register
55568, September 22, 2005.
86
This and related court finding are discussed in the final rule at 76 Federal Register 15461.
87
See EPA’s web page “Identification of Non-Hazardous Materials That Are Solid Waste: Final Rulemaking” at
(continued...)
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by various stakeholders during the public comment period for the proposed rule, including those
of several Members of Congress. In particular, the final rule clarifies that the definition of solid
waste would not affect current used oil recycling regulations (which allows burning used oil in
space heaters, under certain conditions) and explicitly excludes from the definition of solid waste
“scrap tires used in a combustion unit that are … managed under the oversight of established tire
collection programs.” EPA states that this regulatory action would not directly invoke any costs or
benefits. Instead, any costs or benefits would be related to the Boiler MACT and CISWI
Standards (see items 18, 19, and 20, above). For additional information, contact Linda Luther (76852, lluther@crs.loc.gov).
(...continued)
http://www.epa.gov/epawaste/nonhaz/define/index.htm.
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Table 1. Recent Rules Proposed, Promulgated, or Under Development, by EPA
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
1.
Clean Air Act
Greenhouse Gas
(GHG) Reporting
Rule
Promulgated
October 30, 2009.
Other categories of
sources have
subsequently been
added, the latest on
November 8, 2010.
Required by
FY2008 EPA
appropriation
(P.L. 110-161).
About 10,000 facilities
in 31 categories were
affected by the original
rule. Eleven categories
with about 3,000 more
facilities have
subsequently been
added.
2.
Clean Air Act
GHG
Endangerment
Finding
Promulgated
December 15, 2009.
A determination
was required by
the Supreme
Court decision in
Massachusetts v.
EPA, April 2,
2007.
Prerequisite to
finalizing EPA’s GHG
emission standards for
cars and light-duty
trucks, promulgated
April 1, 2010; these, in
turn, trigger GHG
permit requirements
for stationary sources.
3.
Clean Air Act
Light Duty Motor
Vehicle GHG
Rule
Promulgated May 7,
2010 for Model
Years 2012-2016
Promulgated May 7,
2010. An agreement
governing standards
for MY 2017-2025
was announced July
29, 2011, and
standards are
expected to be
proposed by
September 30.
A determination
was required by
the Supreme
Court decision in
Massachusetts v.
EPA, April 2,
2007.
New cars, minivans,
SUVs, and light trucks,
beginning in model
year 2012. EPA
estimates the lifetime
increased cost for
2012-2016 vehicles at
$52 billion, with $240
billion in expected
benefits.
4.
Clean Air Act
GHG Tailoring
Rule
Promulgated June 3,
2010.
none
Limits to about 1,450600
the number of facilities
required to obtain
GHG emission permits
over the next three
each of the next
three years.
5.
Clean Air Act
PSD and Title V
Permit
Requirements for
GHG Emissions
Effective January 2,
2011.
Required once
Light Duty Motor
Vehicle Rule was
promulgated.
Applies only to large
stationary sources
identified by the
Tailoring Rule. EPA
estimates increased
costs for 2014-2018
vehicles at $7.7 billion,
with $49 billion in
projected benefits.
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Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
6.
Clean Air Act
Medium- and
Heavy-Duty
Vehicle GHG
Rule
Proposed
November 30,
2010Finalized August 9,
2011.
Fuel economy
standards were
required by
Section 102 of
EISA (P.L. 110140). GHG
standards were
required once
EPA finalized the
endangerment
finding, and were
harmonized with
the fuel economy
proposal.
New trucks beginning
in model year 2014.
EPA estimates
increased costs for
2014-2018 vehicles at
$8.1 billion, with $57
billion in projected
benefits.
Congressional Research Service
25
.
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
7.
Clean Air Act
NSPS to Control
GHG Emissions
from Petroleum
Refineries
On December 23,
2010, EPA released
the text of a
settlement
agreement with 11
states, two
municipalities, and
three environmental
groups, under which
it agreed to
propose the NSPS
by December 10,
2011, and take final
action on the
proposal by
November 10,
2012.
EPA has been
sued by
numerous parties
for its failure to
issue NSPS for
GHG emissions
from power
plants (American
Petroleum Institute
v. EPA). Section
111(b) of the
Clean Air Act
requires NSPS for
a category of
sources if it
“causes, or
contributes
significantly to air
pollution which
may reasonably
be anticipated to
endanger public
health or
welfare.”
Petroleum refineries,
which EPA concludes
are the second largest
direct stationary
source of GHGs in the
United States.
8.
Clean Air Act
Expanded
Renewable Fuel
Standard (RFS2)
Promulgated March
26, 2010 for 2010,
and on December
21, 2010, for 2011.
Decisions
required by the
Energy
Independence and
Security Act of
2007.
Petroleum refiners,
biofuel producers.
Congressional Research Service
23
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
9.
Clean Air Act
Ethanol Blend
Wall Waiver
EPA granted a
partial waiver for
E15 use in 2007 and
newer passenger
cars and light
trucks, November
4, 2010. On January
21, 2011, EPA
announced that the
waiver would be
expanded to include
MY2001-MY2006
vehicles.
The Energy
Independence and
Security Act of
2007 mandates
increased use of
renewable fuels.
Unless EPA
grants a Clean Air
Act waiver to
allow increased
use of ethanol in
gasoline, it will be
difficult to meet
this mandate.
Gasoline refiners and
blenders, auto
manufacturers, and
manufacturers of
engines for outdoor
equipment of all types.
10.
Clean Air Act
National
Ambient Air
Quality Standard
for Nitrogen
Dioxide
Promulgated
February 9, 2010.
EPA settled a law
suit in 2007,
agreeing to
review the
existing standard
by January 2010.
Only Cook County, IL
(Chicago) violates the
new standard using
current monitoring,
but many areas have
no monitors.
11.
Clean Air Act
National
Ambient Air
Quality Standard
for Sulfur
Dioxide (SO2)
Promulgated June
22, 2010.
D.C. Circuit
remanded the
SO2 standard to
EPA in 1998; EPA
acted under a
consent decree.
Principal effects would
be to require
additional controls on
coal-fired electric
power plants; EPA
estimates costs at $1.8
billion to $6.8 billion
annually, with benefits
5-6 times that amount.
12Congressional Research Service
26
.
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
10.
Clean Air Act
National
Ambient Air
Quality Standard
for Ozone
Proposed January
19, 2010; expected
to be promulgated
by July 29withdrawn
September 2, 2011.
In response to
petitions for
review, EPA
agreed to
reconsider the
ozone NAAQS
promulgated in
March 2008.
Recent ozone levels in
the vast majority of
the 675 counties with
monitors would violate
have
violated the proposed
standard;
implementation could
lead to widespread
new of the
proposed standard
could have led to
widespread new
emission controls
at a
projected cost of
$19
billion to $90
billion annually in 2020,
with comparable levels
of benefits, according
to EPA.
Congressional Research Service
24
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
13.
Clean Air Act
National
Ambient Air
Quality Standard
for Carbon
Monoxide
EPA proposed to
retain the current
standard January 31,
2011.
Under court
order, EPA is to
complete this
review by August
12, 2011.
Emissions of CO come
largely from motor
vehicles, and have
decreased substantially
in recent years.
14.
Clean Air Act
National
Ambient Air
Quality Standard
for Particulate
Matter (PM)
To be proposed by
June 2011.
D.C. Circuit
remanded the
2006 fine
particulate (PM2.5)
standards to EPA
in February 2009.
PM standards affect a
wide range of sources
because they address
all kinds of particles
and aerosols in the
atmosphere.
15.
Clean Air Act
Clean Air
Transport Rule
Proposed August 2,
2010. Expected to
be promulgated
and a second
transport rule to be
proposed in
summer 2011.
D.C. Circuit
remanded the
rule to EPA in
2008.
Affects electric power
plants in 31 Eastern
states; sets up cap-andtrade programs for
SO2 and NOx, at a
projected annual cost
of $2.2 billion, with
benefits of $120 billion
to $290 billion
annually, according to
EPA.
16.
Clean Air Act
MACT for
Electric
Generating Units billion
annually in 2020, with
comparable levels of
benefits, according to
EPA.
11.
Clean Air Act
National
Ambient Air
Quality Standard
for Particulate
Matter (PM),
including “farm
dust”
Proposal expected
in late 2011.
D.C. Circuit
remanded the
2006 fine
particulate (PM2.5)
standards to EPA
in February 2009.
Clean Air Act
requires review
by October 2011.
PM standards affect a
wide range of sources
because they address
all kinds of particles
and aerosols in the
atmosphere.
12.
Clean Air Act
National
Ambient Air
Quality Standard
for Sulfur
Dioxide (SO2)
Promulgated June
22, 2010.
D.C. Circuit
remanded the
SO2 standard to
EPA in 1998; EPA
acted under a
consent decree.
Principal effects would
be to require
additional controls on
coal-fired electric
power plants; EPA
estimates costs at $1.8
billion to $6.8 billion
annually, with benefits
5-6 times that amount.
13.
Clean Air Act
Cross-State Air
Pollution Rule
Promulgated August
8, 2011.
D.C. Circuit
remanded the
rule to EPA in
2008.
Affects electric power
plants in 28 Eastern
states; sets up cap-andtrade programs for
SO2 and NOx, at a
projected annual cost
of $2.4 billion, with
benefits of $120 billion
to $280 billion
annually, according to
EPA.
Congressional Research Service
27
.
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
14.
Clean Air Act
MACT for
Electric
Generating Units
(“Utility MACT”)
EPA proposed the
standards March 16,
2011.
Clean Air
Mercury Rule was
vacated and
remanded to EPA
in February 2008.
EPA, under a
consent decree,
has agreed to
promulgate
standards by
November 16,
2011.
Coal-fired electric
generating units, which
generate about half the
nation’s electricity.
Congressional Research Service
25
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
17
EPA estimates annual
cost at $10.9 billion,
with benefits of $59
billion to $140 billion
annually.
15.
Clean Air Act
NSPS to Control
GHG Emissions
from Electric
Generating Units
EPA is coordinating
this review with the
development of
MACT standards
described in #1614
above. On
December 23, 2010,
EPA released the
text of a settlement
agreement with 11
states, 2
municipalities, and 3
environmental
groups, under which
it agreed to
propose the NSPS
by July 26, 2011
(subsequently
delayed to
September 30,
2011), and , and
take final
action on
the the
proposal by May
26,
2012.
EPA has been
sued by
numerous parties
for its failure to
issue NSPS for
GHG emissions
from power
plants (State of
New York v. EPA).
Section 111(b) of
the Clean Air Act
requires NSPS for
a category of
sources if it
“causes, or
contributes
significantly to air
pollution which
may reasonably
be anticipated to
endanger public
health or
welfare.” EPA has
already concluded
that GHGs are
such air pollution.
Electric
generating units
account for onethird of all U.S.
GHG emissions.
Primarily coal-fired
electric generating
units, which generate
about half the nation’s
electricity.
1816.
Clean Air Act
MACT to
Control Air
Toxics from
Boilers (”Boiler
MACT”)
Promulgated under
court order
February 21, 2011.
The agency began a
reconsideration
process the same
day and expects to
complete it by April
30, 2012.
D.C. Circuit
vacated the rule
in 2007. D.C.
District Court set
deadline for
promulgation.
Would affect a broad
array of industrial,
commercial, and
institutional facilities.
19
EPA estimates annual
cost at $1.4 billion,
with annual benefits of
$22 billion to $54
billion.
Congressional Research Service
28
.
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
17.
Clean Air Act
Area Source
Standards for
Boilers
Promulgated under
court order
February 21, 2011.
The agency began a
reconsideration
process the same
day and expects to
complete it by April
30, 2012.
D.C. Circuit
vacated the boiler
and related
incinerator rules
in 2007.
Boilers at thousands of
smaller commercial,
industrial, and
institutional facilities.
2018.
Clean Air Act
CISWI
Incinerator
Standards
Promulgated under
court order
February 21, 2011.
The agency began a
reconsideration
process the same
day and expects to
complete it by April
30, 2012.
D.C. Circuit
vacated the rule
in 2007.
88 boilers that qualify
as incinerators because
they burn solid waste.
Congressional Research Service
26
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
21.
Clean Air Act
Sewage Sludge
Incinerator
Standards
Proposed October
14, 2010. Under
court order, was to
be promulgated by
February 21, 2011.
Court deadline as
the result of a
March 31, 2006
decision of the
D.C. Circuit,
Sierra Club v.
Johnson.
218 units at
wastewater treatment
facilities.
2219.
Clean Air Act
Portland Cement
Manufacturing
MACT and NSPS
Promulgated
September 9, 2010.
Earlier standards,
promulgated in
1999, were
remanded to the
agency by the
D.C. Circuit
Court of Appeals.
EPA promulgated
a replacement in
2006, but
subsequently
agreed to
reconsider the
replacement
rules.
Portland cement
manufacturing
industry. About 158
cement kilns operating
at nearly 100 locations
are affected by the
rules.
2320.
Clean Air Act
RICE Rule for
Stationary Diesel
Engines
Promulgated March
3, 2010.
The standards
respond in part
to a December
2008 DC. Circuit
Court of Appeals
ruling that EPA’s
air toxics
standards must
address emissions
during all phases
of operation
including periods
of startup,
shutdown, and
malfunction. The
schedule for
completing this
rule was
established by a
consent decree.
900,000 engines used
as backup generators
or to power
compressors and
pumps by industrial,
agricultural, or oil and
gas industry sources.
24Congressional Research Service
29
.
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
21.
Clean Air Act
RICE Rule for
Stationary SparkIgnition Engines
Promulgated August
20, 2010.
Same as Item 2120.
330,000 engines used
as backup generators
or to power
compressors and
pumps by industrial,
agricultural, or oil and
gas industry sources.
Congressional Research Service
27
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
2522.
Clean Air Act
Emission
Standards for
New Marine
(C3) Engines
Promulgated April
30, 2010.
None, but EPA
had committed to
promulgate the
standards when
issuing earlier
standards in 2003.
The standards, which
affect new marine
engines for oceangoing ships beginning in
2011, were generally
supported by the
shipping industry,
2623.
Clean Air Act
Emission Control
Areas for OceanGoing Ships
International
Maritime
Organization gave
final approval to
EPA’s proposal in
March 2010.
none
The measure, which is
supported by the
maritime industry, will
require use of low
sulfur fuels within 200
nautical miles of most
of the U.S. coast.
2724.
Clean Water
Act
Construction
Site Effluent
Limitation
Guidelines
Promulgated
December 1, 2009,
but rule has been
stayed for partial
reconsideration.
EPA expects to
propose a revised
rule by December
2, 2011.
Federal court
ordered EPA to
issue a final rule
by December 1,
2009.
Affects about 82,000
firms involved in
residential,
commercial, highways,
street, and bridge
construction.
28.
Clean Water
Act
Airport Deicing
Effluent
Limitation
Guidelines
Proposed August
28, 2009. A final
rule is expected in
March 2011.
Ongoing EPA
activity to
regulate
wastewater
discharges from
categories of
industry.
Proposed rule applies
to 218 airports.
2925.
Clean Water
Act
Pesticide
Application
General Permit
EPA proposed a
draft permit June 4,in June
2010. Final permit
was expected
December 2010;
EPA has asked for a
delay until October
to be effective
October 31, 2011.
2009 federal
court ruling
invalidated a 2006
EPA rule.
Estimated universe of
affected activities is
approximately 5.6
million applications
annually, performed by
365,000 applicators.
3026.
Clean Water
Act
Florida Nutrient
Water Quality
Standards
EPA promulgated
numeric nutrient
standards for
certain Florida
waters on
December 5, 2010.
2009 federal
consent decree
establishing a
schedule for EPA
to issue numeric
nutrient
standards.
Would likely affect a
broad array of
industrial and
municipal dischargers
and possibly sources of
nonpoint pollution
(e.g., agricultural
lands).
3127.
Clean Water
Act
Chesapeake Bay
TMDL
EPA finalized a
TMDL on
December 29, 2010.
Consent decrees
required EPA to
develop a TMDL
by May 1, 2011.
Potentially could
require additional
pollution control by
many point and
nonpoint sources
throughout the
Chesapeake Bay
watershed.
Congressional Research Service
28
30
.
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
3228.
Clean Water
Act
Revised
Stormwater Rule
EPA expects to
propose a rule in
late 2011.
none
Unknown at this time.
3329.
Clean Water
Act
Revised Cooling
Water Intake
Rule
EPA is developing a
proposed rule,
which is expected
by March 28, 2011proposed
regulations March
28, 2011. Final rule
due by July 27,
2012.
EPA rules issued
in 2004 were
remanded by
order of a federal
court.
Proposal will apply toapplies to
approximately 1,150
existing power plants
and certain other
manufacturing facilities.
3430.
Clean Water
Act
Revised Steam
Electric Effluent
Guidelines
EPA is developing a
proposed rule.
November 2010
consent decree
requires EPA to
propose revised
rule by July 2012
and promulgate
final rule by
January 2014.
Proposal will apply to
existing and new steam
electric power plants.
3531.
Clean Water
Act
SPCC Revisions,
including
Exemption for
Milk Storage
Latest revisions
promulgated
October 14, 2010Final rule for milk
storage exemption
was promulgated
April 18, 2011.
none
Applicable facilities
that store oil, which
includes milk.
3632.
Clean Water
Act
‘Waters of the
United States’
Interpretive
Guidance
Revised guidance
proposed April 27,
2011
none
Potentially affects a
wide range of entities
and activities subject
to CWA
requirements,
including permits
33.
Clean Water
Act and Surface
Mining Control
and Reclamation
Act
Mountaintop
Mining in
Appalachia
Various short-term
and long-term
actions are
underway by EPA
and other federal
agencies to revise
regulations.
none
Surface coal mining
operations in the
Appalachian region.
37.
Safe Drinking
Water Act
Geologic
Sequestration of
Carbon Dioxide
Final rule was
promulgated
December 10, 2010.
none
Sources of carbon
dioxide, most likely
coal-fired electric
power plants, if they
choose sequestration.
38.4034.36.
Toxic
Substances
Control Act
Lead Renovation,
Repair, and
Painting
Training, work
practice,
recordkeeping, and
disclosure
requirements
proposed or
promulgated in May
2010; other rules to
be proposed in
2011.
August 2009
settlement
agreement sets
numerous
deadlines.
Workers and firms
that remodel, repair,
or paint homes and
some commercial
buildings.
4137.
Resource
Conservation
and Recovery
Act (RCRA)
Coal
Combustion
Waste
Proposed June 21,
2010.
none
Coal-fired electric
power plants.
Congressional Research Service
29
31
.
EPA Regulations: Too Much, Too Little, or On Track?
Statutory
Authority
Item
No.
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
42
38.
Resource
Conservation
and Recovery
Act (RCRA)
Rule
Status
Identification of
Materials That
Are Solid Wastes
Proposed June 4,
2010.
Promulgated March
21, 2011
Court or
Legislative
Requirement?
D.C. Circuit
vacated related
rules addressing
boilers and
incinerators in
2007.
Affected Entities
Boilers/incinerators
that burn discarded
materials.
43.
Superfund/RCRA
Guidance for
Cleanup of
Dioxin in Surface
Soils
Interim guidance
proposed January 7,
2010.
none
Responsible parties at
Superfund and other
contaminated sites,
including the
Department of
Defense.
Source: Compiled by CRS.
Author Contact Information
James E. McCarthy
Specialist in Environmental Policy
jmccarthy@crs.loc.gov, 7-7225
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
Key Policy and Legal Staff
Other CRS analysts, listed below, contributed to this report.
Area of Expertise
Name
Phone
E-mail
Superfund
David Bearden
7-2390
dbearden@crs.loc.gov
Clean Water Act
Claudia Copeland
7-7227
ccopeland@crs.loc.gov
Solid Waste
Linda Luther
7-6852
lluther@crs.loc.gov
Clean Air Act
Jim McCarthy
7-7225
jmccarthy@crs.loc.gov
Environmental law
Rob Meltz
7-7891
rmeltz@crs.loc.gov
Clean Air Act, electric generating units
Larry Parker
7-7238
lparker@crs.loc.gov
Oil Spill Prevention
Jonathan Ramseur
7-7919
jramseur@crs.loc.gov
Toxic Substances Control Act
Linda-Jo Schierow
7-7279
lschierow@crs.loc.gov
Safe Drinking Water Act
Mary Tiemann
7-5937
mtiemann@crs.loc.gov
Clean Air Act, mobile sources, CAFE
Brent Yacobucci
7-9662
byacobucci@crs.loc.gov
Congressional Research Service
3032