EPA Regulations:
Too Much, Too Little, or On Track?
James E. McCarthy
Specialist in Environmental Policy
Claudia Copeland
Specialist in Resources and Environmental Policy
April 5December 12, 2013
Congressional Research Service
7-5700
www.crs.gov
R41561
CRS Report for Congress
Prepared for Members and Committees of Congress
EPA Regulations: Too Much, Too Little, or On Track?
Summary
Since Barack Obama was sworn in as President in 2009, the Environmental Protection Agency
(EPA) has proposed and promulgated numerous regulations implementing the pollution control
statutes enacted by Congress. Critics have reacted strongly. Many, both within Congress and
outside of it, have accused the agency of reaching beyond the authority given it by Congress and
ignoring or underestimating the costs and economic impacts of proposed and promulgated rules.
The House has conducted vigorous oversight of the agency in the 112th Congress, and approved
and 113th Congresses, and
has approved several bills that would overturn specific regulations or limit the agency’s authority. Similar
action may occur in the 113th.
Particular attention is being paid to the Clean Air Act, under which
EPA has moved forward with the first federal controls on emissions of greenhouse gases and also
addressed emissions of conventional pollutants from a number of industries; congressional
scrutiny has focused as well on other environmental statutes and regulations implemented by
EPA.
Environmental groups and others disagree that the agency has overreached, and EPA states that
has been paid to the Clean Air Act; congressional scrutiny has focused as well
on other environmental statutes and regulations implemented by EPA.
Environmental groups and other supporters of the agency disagree that EPA has overreached.
Many of them believe that the agency is, in fact, moving in the right direction, including taking
action on significant issues that had been long delayed or ignored in the past. In several cases,
environmental advocates would like the regulatory actions to be stronger.
EPA states that critics’ focus on the cost of controls obscures the benefits of new regulations,
which, it estimates,
far exceed the costs. It maintains that pollution control is an important source
of economic
activity, exports, and American jobs, as well. 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 regulatory activity during the Obama
Administration to help address
these issues. It examines 46 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 includes tables that show which rules have been finalized and which
remain under developmentremain under
development, and an appendix that describes major or controversial rules that are now final.
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 standardsregulations effectively underestimate the complexities of the
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 ............................................................................................. 4
Congressional Activity .............................................................................................................. 5
Organization of the Report6
Conclusions ........................................................................................................ 8
Clean Air Act and Climate Change .................................................................................................. 8
Climate Change ......................................................................................................................... 8
Renewable Fuels...................................................................................................................... 11
Ambient Air Quality Standards ............................................................................................... 13
Electric Generating Units ........................................................................................................ 15
Boilers and Incinerators ........................................................................................................... 17
Other .......................................................... 7
Organization of the Report ........................................................................................................ 8
Clean Air Act and Climate Change ..................................................................................................... 18 8
Clean Water Act ............................................................................................................................. 2112
Toxic Substances Control Act (TSCA) .......................................................................................... 2916
Solid Waste/Underground Storage Tanks (RCRA) ........................................................................ 3017
Tables
Table 1. Major EPA Rules and Modifications Expected to Be Proposed or Promulgated,
April-June 2013December 2013-June 2014 ............................................................................................................................ 6
Table 2. Major or Controversial Rules Promulgated by EPA Since January 2009 ........................ 33
Table 3. Major Rules and Modifications Under Development at EPA 5
Table 2. Major Rules and Modifications Under Development at EPA .......................................... 19
Appendixes
Appendix. Major or Controversial Rules Promulgated Since 2009............................................ 40... 23
Contacts
Author Contact Information........................................................................................................... 4339
Key Policy and Legal Staff ............................................................................................................ 4339
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EPA Regulations: Too Much, Too Little, or On Track?
Introduction
Is EPA on Target or Overreaching? Conflicting Views
Since Barack Obama was sworn in as President of the United States in 2009, the Environmental
Protection Agency (EPA) has proposed and promulgated numerous regulations under the 11
pollution control statutes Congress has directed it to implement.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, while also addressing newly emerging pollution
problems and issues. The statutes also mandate that EPA conduct periodic reviews of many of the
standards it issues, and the agency is doing these reviews, as well.
Although supporters would say that EPA is just doing its job, the agency’s regulatory actions over
the last four-plus years have drawn attention for several reasons. In some cases, such as regulation of
of greenhouse gas emissions, they represent a new departure. Based on a 2007 Supreme Court ruling
ruling that 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
statutory requirements to reexamine regulations, by legal challenges and 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 scale of EPA regulatory actions “unprecedented,” stated that the agency “has turned a
regulatory firehose on U.S. business”3 and, regarding proposed regulatory actions affecting
electric generating units, it said “the EPA’s regulatory cascade is a clear and present danger to the
reliability and stability of the U.S. power system and grid.”4 The American Enterprise Institute
stated that EPA “is engaged in a series of rule-making proceedings of extraordinary scope and
ambition.”5 The U.S. Chamber of Commerce described EPA’s actions as “a series of one-sided,
politically-charged regulations that are intended to take the place of legislation that cannot
achieve a consensus in the Congress.”6 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,”67 while the National Mining Association 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
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.
7
National Mining Association, “EPA’s Regulatory Train Wreck,” 2011, http://www.nma.org/pdf/fact_sheets/
(continued...)
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EPA Regulations: Too Much, Too Little, or On Track?
U.S. Chamber of Commerce, “Regulatory Areas, Energy, and the Environment,”
http://www.uschamber.com/regulations/areas.
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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.”8
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.89 Senior Republicans in the House and Senate committed to
vigorous oversight of the agency’s actions during the 112th Congress,910 with some threatening to
withhold funding if the agency continued on its present course.1011 Vigorous oversight may
continue is continuing
in the 113th Congress—earlier this year, a senior Senate Republican referred recently to a “frightening
flood” of new EPA rules.1112
EPA 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, then-EPA Administrator Lisa Jackson 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).1213
In congressional testimony and other fora, Administrator Jackson 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.13
(...continued)
epa_tw.pdf.
8(...continued)
7
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.
8
National Mining Association, “EPA’s Regulatory Train Wreck,” 2011, http://www.nma.org/pdf/fact_sheets/
epa_tw.pdf.
9
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; 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 as Reported, by Robert Esworthy.
910
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.
1011
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/.
1112
See “Oil Industry, GOP Criticize EPA’s New Gasoline Rules,” Washington Post, March 30, 2013, p. 3.
1213
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.
13
Lisa P. Jackson, EPA Administrator, “Telling the Truth about the Environment and Our Economy,” September 2,
2011, http://blog.epa.gov/administrator.
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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.14
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.1415 Many also fear that recent
decisions 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, for
example, Clean
Air Watch stated, “there is an unfortunate appearance here that political pressure
from Congress is
affecting the situation. That EPA is running scared.”1516 These concerns were
renewed following
the President’s September 2011 decision to withdraw revised air quality
standards for ozone that
EPA had spent two years developing (see “Ozone Ambient Air Quality
Standards” section, below)
and the agency’s delay in implementation of air quality standards for cement
kilns and other
industries.
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 and statutory authorities that Congress has provided. 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
actions16actions17 promulgated, proposed, or under development by EPA since January 2009. The report
uses data from EPA’s Semiannual Regulatory Agendas17Agendas18 and the list of economically significant
reviews conductedcompleted by the Office of Management and Budget (OMB)1819 to compile a list of 46
regulatory actions proposed, promulgated, or under development by the agency. The list includes
all EPA rules considered “economically significant” by OMB since January 2009,19 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
14
14
Lisa P. Jackson, EPA Administrator, “Telling the Truth about the Environment and Our Economy,” September 2,
2011, http://blog.epa.gov/administrator.
15
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, p. 15.
1516
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.
1617
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.
1718
U.S. EPA, Semiannual Regulatory Agenda: Fall 2012, December 24, 2012, at Spring 2013, July 3, 2013, at
http://www.regulations.gov/
#!documentDetail;D=EPA-HQ-OA-2012-0987-001.
182013-0514-0001.
19
OMB, Office of Information and Regulatory Affairs (OIRA), Historical Reports, at http://www.reginfo.gov/public/
do/eoHistReviewSearch.
19
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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all EPA rules considered “economically significant” by OMB since January 2009,20 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);
September 20,
2013); (4) explains the significance of the action, often providing information on estimated costs and
benefits, where available; (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, but related, regulations under
one heading.
This is not a complete list of the regulations that EPA has promulgated or proposedproposed or promulgated during the
Obama Administration. Rather, it is an attempt to identify the most significant and most
controversial. A complete list would be substantially longer.21
A Few Caveats Regarding Timing
Not all of these rules the rules discussed here are Obama Administration initiatives. Many began
development under the
Bush Administration (or earlier, in some cases), 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. description. Similarly, EPA’s regulation of power
plant cooling water intake structures is governed by a 1995 consent decree and rules issued and
proposed in several phases beginning in 2001. Other EPA actions, such as reconsideration of the
ozone air quality standard, have
actually delayed for several years implementation of Bush
Administration rules that 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.2022 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.
20
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.
21
For example, according to OMB, OIRA completed action on 47 proposed and final EPA rules in 2012 and 78
proposed and final rules in 2011; 8 and 15 of these, respectively were determined to be economically significant. See
footnote 19.
22
They may also be substantially altered before they become final and take effect, as a result of the proposal and public
comment process, and/or judicial review.
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•
If there are no known deadlines, we have attempted to provide EPA’s estimate of
the schedule for promulgation. In some cases, EPA has not estimated a proposal
or 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 or reevaluate technical information.
•
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. EPA has also, in several cases,
20
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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reconsidered rules after promulgation, changing what were announced as “final”
standards, and, in some cases, granting additional time for compliance.
•
In many cases, EPA rules must be adopted by states to which the program has
been delegated before actual implementation occurs (e.g., establishing air quality
plans or issuing permits). 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
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. That said, Table 1 identifies rules that are likely to be proposed
or promulgated by mid-2013June 2014. Note that expected dates are tentative.
Table 1. Major EPA Rules and Modifications Expected to Be Proposed or
Promulgated, December 2013-June 2014
Item Number in
This Report
Name of Rule
Type of Rule
Expected Date
9.
Revised Cooling Water
Intake
Final
January 14, 2014
7.
Brick and Clay MACT
Proposed
February 6, 2014
4.
Tier 3 Auto/Light Truck
Emission and Gasoline
Standards
Final
February 2014
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Item Number in
This Report
Name of Rule
10.
Revised Steam Electric
Effluent Limitations
Guidelines
1.
Carbon Pollution
Guidelines for Greenhouse
Gas Emissions from
Existing Power Plants
15.
Revised Underground
Storage Tank Regulations
Type of Rule
Expected Date
Final
May 14, 2014
Proposed
June 2014
Final
Spring 2014
Source: Compiled by CRS.
Congressional Activity
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.
In the 112th Congress, criticism of EPA actions increased, and several bills to prevent or delay
EPA action passed the House. More legislation is considered likely but were not considered in the Senate. Bills are also being
considered in the 113th Congress. Some
proposals arehave been broad in nature, targeting EPA generallyall
regulatory agencies or a lengthy list of specificsspecific regulations, while others
focus more narrowly on
individual rules or actions.
The situation has been particularly contentious for regulatory actions involving greenhouse gases.
Although former Administrator Jackson and President Obama 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 proceeding on that regulatory
has proceeded 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,
have considered various approaches to altering the agency’s course. For example, in February
2011, 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 contained
more than 20 provisions restricting or prohibiting the use of appropriated funds to implement
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various regulatory activities under the EPA’s jurisdiction—many of them focused on GHGs.21 (On
March 9, 2011, the Senate failed to approve the House-passed bill and the enacted appropriation,
H.R. 1473, generally omitted the EPA regulatory provisions in the House-passed bill.)
Table 1. Major EPA Rules and Modifications Expected to Be Proposed or
Promulgated, April-June 2013
Item Number in
This Report
Name of Rule
Type of Rule
Expected Date
16.
New Source Performance
Standard for Greenhouse
Gas Emissions from Electric
Generating Units
Final
April 13 Statutory Deadline
37.
Revised Steam Electric
Effluent Limitations
Guidelines
Proposal
April 19
35.
“Post-Construction”
Stormwater
Proposal
June
36.
Revised Cooling Water
Intake
Final
June
Source: Compiled by CRS.
Note: Expected dates are tentative.
The House also approved legislation to restrict EPA authority and to repeal a dozen EPA
regulatory actions dealing with greenhouse gases (H.R. 910), in April 2011. In the Senate, an
amendment identical to H.R. 910 (S.Amdt. 183) failed on a vote of 50-50.
In reporting H.R. 2584, which would have provided EPA funding for FY2012, the House
Appropriations Committee included more than 25 provisions intended to restrict or preclude the
use of funds to proceed with recent or pending EPA regulatory actions.22 These provisions were
not included in the final appropriation, however (P.L. 112-74, enacted in December 2011). Also,
in July 2012, the House Appropriations Committee reported H.R. 6091, providing EPA funding
for FY2013, which similarly included more than a dozen provisions to limit funding for EPA
regulatory actions. Many were similar to provisions in H.R. 2584.23 These also were generally not
included in the agency’s final appropriation.
In September 2012, the House passed H.R. 3409, the Stop the War on Coal Act, which includes
H.R. 910 and three other bills previously passed by the House (H.R. 2401, described below, H.R.
2273, and H.R. 2018).
21
For information, see CRS Report R41698, H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of
Environmental Protection Agency (EPA) Provisions, by Robert Esworthy.
22
For information, see CRS Report R41979, Environmental Protection Agency (EPA) FY2012 Appropriations:
Overview of Provisions in H.R. 2584 as Reported, by Robert Esworthy.
23
For information, see CRS Report R42520, Environmental Protection Agency (EPA): Appropriations for FY2013,
coordinated by Robert Esworthy. Congress has not completed action on FY2013 appropriations bills, but it has enacted
legislation providing continuing appropriations generally at FY2012 levels through March 27, 2013 (P.L. 112-175). It
does not include provisions that address EPA regulatory actions.
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Besides legislation addressing greenhouse gas regulations, or addressing multiple EPA
regulations, a number of bills addressing individual EPA regulations were introduced and
considered in the 112th Congress. Five of these bills (H.R. 1633, H.R. 2250, H.R. 2273, H.R.
2401, and H.R. 2681) passed the House. None of them passed the Senate. The five bills would
have prevented, revoked, or directed EPA actions on rural dust, boilers and incinerators, coal
combustion waste, electric power plants, and cement kilns, respectively. Resolutions of
disapproval under the Congressional Review Act were also introduced for specific EPA
regulations, but have not passed. S.J.Res. 27, which would have struck EPA’s Cross-State Air
Pollution Rule, was rejected by the Senate in November 2011, and S.J.Res. 37, which would have
struck the agency’s Mercury and Air Toxics Standards for electric generating units, was rejected
by the Senate in June 2012.
Beyond the criticism of specific regulations, there also were calls for broad regulatory reforms in
the 112th Congress, 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
was H.R. 10, the Regulations from the Executive in Need of Scrutiny (REINS) Act, which in
general provides that major rules of the executive branch shall have no force or effect unless a
joint resolution of approval is enacted into law.24 The bill passed the House in December 2011.
The House also passed H.R. 3010, the Regulatory Accountability Act,25 and H.R. 527, the
Regulatory Flexibility Improvements Act, in December 2011. Among other provisions, the first of
these bills would require agencies to adopt the least costly rule that meets relevant statutory
objectives unless the benefits justify additional costs, would provide for judicial review of certain
requirements and determinations for which judicial review is not currently available, and would
impact existing case law on judicial deference to agency interpretations of rules. The second bill,
among other provisions, would require agencies to provide the Chief Counsel of the Small
Business Administration with all materials prepared or utilized in making a proposed rule and
information on the potential adverse and beneficial economic impacts of the proposed rule on
small entities, and it would require the Chief Counsel to convene a panel to review such
materials. On July 26, 2012, the House passed H.R. 4078, to place a moratorium on regulations
that impose costs of more than $50 million until the unemployment rate is 6% or less, and to bar
the President from proposing or promulgating regulations beginning on Election Day of his final
term (so-called “midnight rules”). Similar bills may be considered in the 113th Congress: on
March 20, 2013, the re-introduced REINS Act (H.R. 367) was approved by a House Judiciary
Subcommittee.
Another broad bill, H.R. 2401, the Transparency in Regulatory Analysis of Impacts on the Nation
(TRAIN) Act of 2011, passed the House in September 2011. The House also passed this bill as
part of H.R. 3409 in September 2012. Besides revoking regulations on electric power plants that
EPA has promulgated, H.R. 2401 would have established a panel of representatives of federal
agencies to report to Congress on the cumulative economic impact of a number of listed EPA
rules, guidelines, and actions concerning clean air and waste management, and it would have
required the EPA Administrator to take feasibility and costs into consideration in setting National
Ambient Air Quality Standards, reversing a Supreme Court decision that found EPA could not
24
For information, see CRS Report R41651, REINS Act: Number and Types of “Major Rules” in Recent Years, by
Maeve P. Carey and Curtis W. Copeland.
25
For information, see CRS Report R42104, An Overview and Analysis of H.R. 3010, the Regulatory Accountability
Act of 2011, by Maeve P. Carey.
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consider costs in setting health-based ambient air quality standards. Among the motivations for
the TRAIN Act was 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.26
A number of other House and Senate bills from the 112th Congress could be re-introduced in the
113th Congress.
Organization of the Report
This report organizes the regulatory actions it describes under four headings: Clean Air Act and
Climate Change; Clean Water Act; Toxic Substances Control Act; and Solid Waste (Resource
Conservation and Recovery Act). A majority of the rules (29 of the 46) are being developed or
implemented under the regulatory authority of the Clean Air Act. To help organize the
presentation of these 29, 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 two tables. Table 2 shows which rules have been
finalized, and Table 3 shows rules which remain under development.
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.27 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).28 (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, 2011. The first data
submitted under the rule were released January 11, 2012. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
26
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.
27
U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases; Final Rule,” 74 Federal
Register 56260, October 30, 2009.
28
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.”
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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.29 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, and on June 26, 2012, the court upheld the regulations. The court’s decision
applied to 84 cases filed by a variety of industry groups and states (Coalition for Responsible
Regulation v. EPA). For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov) or Rob Meltz (7-7891, rmeltz@crs.loc.gov).
3. Light Duty Motor Vehicle Greenhouse Gas Emission Standards, Model Years 2012-2016.
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.30 NHTSA is required by the Energy Independence and Security Act of 2007
(EISA, P.L. 110-140) to promulgate CAFE 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 EPA regulations require a reduction in emissions to an estimated
combined emission level of 250 grams of CO2 per mile by model year 2016, about a 21%
reduction in emissions when fully implemented. The Administration estimates that complying
with the regulations 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 are
being 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. This rule was also upheld by the D.C. Circuit in
the June 26, 2012 Coalition for Responsible Regulation decision. For additional information,
contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
4. Light Duty Motor Vehicle Greenhouse Gas Emission Standards, Model Years 2017-2025.
Using the same authority described in Item 3 above, EPA and NHTSA finalized joint GHG/fuel
economy rules for 2017-2025 model year vehicles, on August 28, 2012. 31 Under these standards,
GHG emissions from new cars and light trucks will be reduced about 50% by 2025 compared to
29
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.
30
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. Information on benefits and costs are summarized in an April 2010 EPA Fact Sheet, at
http://www.epa.gov/oms/climate/regulations/420f10014.pdf.
31
U.S. Environmental Protection Agency, U.S. Department of Transportation, “2017 and Later Model Year Light-Duty
Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards; Final Rule,” 77 Federal Register
62624, October 15, 2012. A link to the rule and other information, including a Fact Sheet, is available at
http://www.epa.gov/otaq/climate/regs-light-duty.htm#new1.
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2010 levels, to an expected fleet average of 163 grams per mile; average fuel economy will rise to
nearly 50 miles per gallon. The agencies estimated that the new technology to comply with the
standards as proposed will cost roughly $1,800 per vehicle in 2025, although lifetime fuel savings
would total roughly $5,700 to $7,400. For additional information, contact Brent Yacobucci (79662, byacobucci@crs.loc.gov).
5. 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.32 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: from 2011 through 2016, the nation’s largest GHG emitters, including power plants,
refineries, cement production facilities, and about two dozen other categories of sources (an
estimated 17,000 facilities annually) will be the only sources required to obtain permits. Of these,
most will face only an administrative requirement to provide an estimate of their GHG emissions,
but EPA estimated that 1,600 new or modified facilities will need to address whether they have
the best available control technology for limiting emissions.33 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 are shielded from permitting requirements
by this rule. This rule was also challenged in Coalition for Responsible Regulation. The D.C.
Circuit dismissed the challenge June 26, 2012. For additional information, contact Jim McCarthy
(7-7225, jmccarthy@crs.loc.gov).
6. 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, 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 determine what technologies qualify as BACT on a caseby-case basis, using generic guidance issued by EPA on November 10, 2010.34 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, 2011, was the addition of GHGs to
the 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 are required to obtain permits, whether or not they would be required
to do so because of emissions of other pollutants.
32
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.
33
In the first 11 months of the program, however, EPA reports that only 68 permit applications were received. See U.S.
EPA, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3, GHG Plantwide
Applicability Limitations and GHG Synthetic Minor Limitations, Proposed Rule, 77 Federal Register 14233, March 8,
2012.
34
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.
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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 for GHG emissions, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
7. Medium- and Heavy-Duty Vehicle Greenhouse Gas Rule. On September 15, 2011, EPA and
the National Highway Traffic Safety Administration (NHTSA) promulgated integrated GHG
emission standards and fuel economy standards for medium- and heavy-duty vehicles.35 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 standards will be
phased in between 2014 and 2018. When fully implemented, they 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 $8.1 billion.
EPA projects benefits of $57 billion over the trucks’ lifetimes, including $50 billion in fuel
savings. For additional information, contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
8. 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. Under the settlement, the agency 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. However, as of this writing (April
2013), the standards have not been proposed. For additional information, contact Jim McCarthy
(7-7225, jmccarthy@crs.loc.gov).
Two other rules affecting GHG emissions are under consideration at EPA: NSPS for GHG
emissions from electric generating units (Item 16, below) and similar standards for Portland
cement manufacturing facilities (discussed in Item 20, below).
Renewable Fuels
9. 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).36 For 2013, the RFS requires the use of 16.55 billion
35
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; Final Rules,” 76 Federal Register
57106, September 15, 2011.
36
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.
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gallons of ethanol and other biofuels in transportation fuel. Within that mandate, the statute
requires the use of 2.75 billion gallons of advanced biofuels (fuels other than corn starch ethanol),
including 1 billion gallons of cellulosic biofuels. Because no commercial-scale cellulosic biofuel
refineries have begun operation, EPA has proposed reducing the mandated 2013 level for these
fuels from 1 billion gallons to 14 million ethanol-equivalent gallons (roughly 11 million actual
gallons).37
Similar shortfalls have occurred since 2010 when EISA first required the inclusion of cellulosic
biofuels in the RFS, prompting EPA to revise downward the cellulosic mandate each year.
However, through 2012 no commercial-scale cellulosic biofuel plants had begun operation, and
only about 20,000 gallons of cellulosic biofuel had been registered under the RFS, as opposed to
the 10.45 million ethanol-equivalent gallons (8.65 ethanol-equivalent gallons) required by EPA.
Because of this shortfall in production capacity, in January 2013 the U.S. Court of Appeals for the
D.C. Circuit vacated the 2012 cellulosic mandate.38 In response, in February EPA revised the
2012 cellulosic standard to zero.
Because of the (vacated) requirement to use fuels that are not available in the market (“phantom
fuels”), EPA’s process for determining annual cellulosic volumes has become controversial.
Legislation introduced in the House and Senate, H.R. 550 and S. 251, would amend the Clean Air
Act to set cellulosic fuel requirements based on the prior years’ average monthly production as
opposed to the current statutory requirement for EPA to project production capacity for the year.
For additional information, contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
10. Ethanol Blend Wall Waiver. Section 211(f) of the Clean Air Act effectively limits the
amount of oxygen in gasoline unless EPA issues a waiver. Since ethanol contains oxygen, an
increase in the ethanol content of gasoline offered for sale can only occur if EPA issues such a
waiver. EPA may issue a waiver if the agency determines that the fuel or fuel additive will not
cause or contribute to the failure of any emission control device or system used by vehicle
manufacturers to achieve compliance with emission standards under the act.
On March 6, 2009, Growth Energy (on behalf of 52 U.S. ethanol producers) applied to EPA for a
waiver from the then-current regulation limiting the ethanol content in gasoline to a maximum of
10% (E10). The application requested an increase in the maximum concentration to 15% (E15). A
complete 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.39 The agency delayed a decision on MY2001-2006 vehicles until the
Department of Energy completed testing of those vehicles. On January 21, 2011, EPA announced
37
U.S. Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: 2013 Renewable Fuel Standards;
Proposed Rule,” 78 Federal Register 9282-9306, February 7, 2013.
38
API v. EPA, 706 F.3d 474 (D.C. Cir. 2013).
39
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.
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that the waiver would be expanded to include MY2001-2006 vehicles.40 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 engine manufacturers, although that case was dismissed because
none of the petitioners had been injured in fact.41 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.
Because of various factors, expansion of E15 supply has been slow. As of late March 2013, only
13 stations in three states (Iowa, Kansas, and Nebraska) had begun selling E15 for use in
conventional vehicles. Further, only three automakers have affirmed that E15 may be used in their
vehicles without voiding warranties.42
In the first quarter of 2013, prices for RFS blending credits (Renewable Identification Numbers,
or RINs) increased dramatically (from roughly $0.08 per gallon in early January to over $1.00 per
gallon in mid-March). The causes of this increase are unclear, but may be driven in part by
concerns from fuel suppliers that the industry is approaching the blend wall and that RINs may be
in short supply. After the mid-March high, RIN prices dropped somewhat, to roughly $0.70 per
gallon in early April. For additional information, contact Brent Yacobucci (7-9662,
byacobucci@crs.loc.gov).
Ambient Air Quality Standards
11. Ozone Ambient Air Quality Standards. On January 19, 2010, EPA proposed a revision of
the National Ambient Air Quality Standard (NAAQS) for ozone.43 At the President’s request, on
September 2, 2011, this proposal was withdrawn, leaving EPA to implement previously
promulgated 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,
40
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,” 76
Federal Register 4662, January 26, 2011.
41
Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169 (D.C. Cir. 2012).
42
For example, General Motors has approved the use of E15 in its model year (MY) 2012 and later vehicles, while
Ford has approved E15 for MY2013 and later vehicles. Porsche approves the use of E15 in MY2001 and later cars.
Robert L. Darbelnet, President and CEO, American Automobile Association, “Suspend Sale of E15 Gasoline,” The
Hill, December 13, 2012.
43
U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Ozone; Proposed Rule,” 75
Federal Register 2938, January 19, 2010.
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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. 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 was 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 $25 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, since work was already underway to update a review of the science that
would result in the reconsideration of the ozone standard in 2013.44 EPA expects to propose any
changes resulting from this review by the end of 2013, with promulgation late in 2014. For
additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
12. Particulate Matter (including “Farm Dust”) NAAQS. EPA considers particulate matter
(PM) to be among the most serious air pollutants, responsible for tens of thousands of premature
deaths annually. 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.
EPA completed a review of the PM NAAQS in 2006. The agency is required by the Clean Air Act
to review NAAQS at five-year intervals, so another review was due in 2011. As the review
process was getting underway, in February 2009, the D.C. Circuit Court of Appeals remanded the
2006 standard for PM2.5 to EPA, saying that the standard was “contrary to law and unsupported by
adequately reasoned decisionmaking.”45 As a result, EPA combined the statutory five-year review
of the standard and its response to the D.C. Circuit decision, completing a review of the PM
standard that served both purposes in January 2013.46 The review left the standard for coarse
particles unchanged, as well as the standard for 24-hour exposures to PM2.5. But it lowered the
standard for annual exposures to PM2.5, as suggested by the agency’s outside scientific advisers,
from 15 micrograms per cubic meter to 12.
44
The White House, Office of the Press Secretary, “Statement by the President on the Ozone National Ambient Air
Quality Standards,” September 2, 2011.
45
American Farm Bureau Fed'n v. EPA, 559 F.3d 512 (D.C. Cir. 2009).
46
U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Particulate Matter; Final
Rule,” 78 Federal Register 3086, January 15, 2013. A link to the standards and other supporting materials can be found
at http://www.epa.gov/pm/actions.html.
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Although this appears to be a significant strengthening of a standard that potentially affects a
wide array of mobile and stationary sources, EPA projects the incremental cost of the revision at a
relatively modest $53 million to $350 million annually. The cost of compliance with the PM
NAAQS is moderated by the fact that other EPA standards (for various emission sources) are
reducing exposures to PM2.5 even without a strengthening of the ambient standard. Annual
benefits of the more stringent NAAQS were estimated to range from $4.0 billion to $9.1 billion.
In the 112th Congress, attention to PM issues focused on the larger, coarse particles, PM10, even
though EPA did not propose to change them. Members of the House and Senators discussed the
need to prevent a supposed EPA plan to use the revision of the PM10 standard to impose controls
on “farm dust.” The House passed legislation to prevent EPA from tightening standards for PM10
for one year and to permanently limit EPA’s authority to regulate dust in rural areas. EPA stated
early in the PM review process that it did not intend to change the PM10 standard, and the final
revision made no change. For additional information, contact Rob Esworthy (7-7236,
resworthy@crs.loc.gov).
13. Sulfur Dioxide NAAQS. Three other NAAQS reviews (for sulfur dioxide,47 nitrogen
dioxide,48 and carbon monoxide) were completed in 2010 and 2011. Of these, only the sulfur
dioxide (SO2) NAAQS is considered an economically significant rule.49 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
14. 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 promulgated a replacement, the
Cross-State Air Pollution Rule, August 8, 2011.50 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 coal-fired 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 was 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. Numerous
parties petitioned the D.C. Circuit for review of the Cross-State rule, and the court stayed its
implementation pending the completion of the court’s proceedings. On August 21, 2012, the court
47
U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final
Rule,” 75 Federal Register 35520, June 22, 2010.
48
U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide;
Final Rule,” 75 Federal Register 6473, February 9, 2010.
49
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.
50
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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vacated the standards and remanded them to EPA. Because of the earlier CAIR requirements,
which remain in effect pending their replacement and, more recently, because power companies
have replaced substantial amounts of coal-fired generation with cheaper (and cleaner) naturalgas-fired units, electric generators have already achieved more than two-thirds of the pollution
reductions necessary to comply with the 2014 standards. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
15. Mercury and Air Toxics Standards / 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 and promulgate Maximum Achievable Control Technology
(MACT) standards by the end of 2011. EPA states that the standards for existing units,
promulgated February 16, 2012,51 can be met by 56% of coal- and oil-fired electric generating
units using pollution control equipment already installed; the other 44% would be required to
install technology that will reduce uncontrolled mercury and acid gas emissions by about 90%, at
an annual cost of $9.6 billion. Standards for new facilities are more stringent, and many
(including the industry that manufactures pollution control and monitoring equipment), doubted
whether compliance with the mercury portion of these standards could be measured. In response
to industry petitions, EPA reconsidered the mercury limit for new facilities, and announced
changes to the standards for new facilities on March 29, 2013.
EPA estimates that the annual benefits of the Utility MACT, including the avoidance of up to
11,000 premature deaths annually, will be between $37 billion and $90 billion. Following
promulgation of these standards in 2012, 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%. For additional
information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
16. NSPS for GHG Emissions from Electric Generating Units. EPA has stated for some time
that it would undertake 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. In a settlement agreement with 11 states and
other parties, EPA agreed to propose the NSPS for power plants by July 26, 2011, and take final
action on the proposal by May 26, 2012. This schedule encountered delays: proposed standards
were not released until March 27, 2012,52 and the final standards have been delayed as well. The
agency faces a statutory deadline of April 13, 2013, for promulgation, but the rule had not yet
gone to OMB for interagency review as of April 1.
51
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants from Coal and
Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility,
Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units,” 77
Federal Register 9304, February 16, 2012.
52
The standards appeared in the Federal Register on April 13, 2012. The standards and supporting materials are
available at http://www.epa.gov/carbonpollutionstandard/actions.html.
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EPA set the proposed GHG emission standards at a level achievable by uncontrolled natural-gasfired units or by coal-fired units using carbon capture and storage (CCS) technology. Although
the components of CCS technology have been demonstrated, no existing power plant combines
them all in an operating unit, and the electric power industry has generally concluded that a CCS
requirement would effectively prohibit the construction of new coal-fired plants, other than those
already permitted. EPA maintains otherwise, but it also says that, because of low natural gas
prices and abundant existing generation capacity, it believes no new coal-fired units subject to the
proposed standards will be constructed between now and 2020. For additional information,
contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Boilers and Incinerators
17.-18. 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.53 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 initiated a reconsideration after it released the final rule, and it
promulgated changes to the rule on January 31, 2013.54 In addition to adjusting the rule’s
emission standards, the January 2013 rule reset the clock for compliance, effectively giving
industry almost two additional years to install control equipment.
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 January
2013 rule will set more stringent standards. It will affect about 14,000 boilers, according to the
agency, with annual costs estimated at $1.2 billion and benefits of $25 billion to $67 billion
annually, including the avoidance of 3,100 to 7,900 premature deaths.
EPA also promulgated what are called “area source” standards for smaller boilers at the same time
as the MACT.55 The area source standards would affect 183,000 boilers, most of which would
only be required to perform a tune-up every two to five years to comply with the regulations. EPA
estimated the net cost of the area source rule to be $490 million annually, with partial benefits
ranging from $210 million to $520 million annually. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
53
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.
54
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and Institutional Boilers; Final Rule; Notice of Final Action on Reconsideration,” 78
Federal Register 7138, January 31, 2013.
55
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and Institutional Boilers; Final Rule,” 76 Federal Register 15554, March 21, 2011.
Final action on reconsideration appeared in the February 1, 2013, Federal Register (78 FR 7488).
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19. Commercial and Industrial Solid Waste Incinerator (CISWI) Standards. A third
regulation promulgated and reconsidered at the same time as the boiler MACT and area source
boiler rules sets standards for emissions from commercial and industrial solid waste
incinerators.56 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 106, with annual costs
of $271 million, according to EPA, and benefits of $380 million-$1 billion annually. For
additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Other
20. 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 (MACT) standards for hazardous air pollutants from both
existing and new cement kilns.57 When fully implemented in late 2013, the standards would have
required 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 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 estimated that it would cost the industry $350 million annually to comply with the
2010 standards, but that benefits (including the avoidance of 960 to 2,500 premature deaths in
people with heart disease) would be worth $6.7 billion to $18 billion annually. The trade
association representing the industry said the standards would cause some facilities to close. On
December 9, 2011, the D.C. Circuit Court of Appeals remanded the 2010 standards to EPA for the
agency to reconsider emission standards for kilns that use solid waste as fuel. The court did not
stay implementation of the 2010 standards, but EPA, in proposing changes to the particulate
portion of the standards on June 25, 2012, announced its intention to give the industry an
additional two years to comply, with a third year available if needed. The changes are estimated
to reduce industry costs by $52 million annually, compared to the 2010 rule. EPA finalized these
changes, February 12, 2013.58
Further regulation of this industry, which is the third highest stationary U.S. source of carbon
dioxide emissions, has been under consideration: when EPA promulgated the rule in September
2010, it stated in the rule’s preamble to the rule that it is “working towards a proposal for GHG
standards” for these plants.59 It is uncertain when such a rule might be proposed. For additional
information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
56
The 2011 standards were: 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;
Final Rule,” 76 Federal Register 15704, March 21, 2011. The notice of final action on reconsideration is at 78 Federal
Register 9112, February 7, 2013.
57
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.
58
78 Federal Register 10006, February 12, 2013.
59
Ibid., p. 54997.
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21.-22. Stationary Internal Combustion Engines. EPA set standards for both compressionignition60 (generally diesel) and spark ignition (generally gasoline) stationary engines61 in 2010.
The agency subsequently amended the rules on January 30, 2013.62 The regulations would affect
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 performing oil changes and inspections. EPA
estimated that 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 were estimated to be $626 million in 2013. EPA
states that the 2013 amendments will reduce the annualized costs by $139 million (to $487
million). The amendments were issued in response to a suit by the Engine Manufacturers
Association. The most controversial of the amendments allows backup generators to operate for
up to 100 hours per year during emergency or peak power use periods without being subject to
emission limits, although they will need to use low sulfur fuel beginning in 2015. For additional
information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
23.-24. 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 engines63 and it proposed the
establishment of Emission Control Areas (ECAs) extending 200 nautical miles off most U.S.
shores.64 In the ECAs, which received final approval in March 2010, both U.S. and foreign ships
were required to use low sulfur fuel, beginning in 2012. 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 ECAs and the new standards were supported by both
industry and environmental groups, and have been extended to cover the U.S. Caribbean,
beginning in 2014. In July 2012, however, controversy arose over the requirement that ships in
Alaskan waters use low sulfur fuel, with the state of Alaska filing suit to block implementation of
the fuel requirement. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
25. Oil and Natural Gas Air Pollution Standards. In February 2010, EPA signed a consent
agreement under which it was to promulgate revisions of the New Source Performance Standards
and Hazardous Air Pollutant standards for oil and gas production by November 30, 2011. The
60
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.
61
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.
62
78 Federal Register 6674, January 30, 2013.
63
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.
64
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.
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agency promulgated these rules on August 16, 2012.65 Under the CAA, EPA is required to review
New Source Performance Standards every eight years; the revisions update NSPS rules for VOCs
and SO2 that were promulgated in 1985. Similarly, EPA had a statutory obligation to review
hazardous air pollutant standards for oil and natural gas production, which were issued in 1999,
by 2007. Additionally, the 2012 rules are the first regulations to address emissions from natural
gas wells that use hydraulic fracturing (“fracking”). The new standards, which will be fully
implemented by 2015, will require companies to capture natural gas and volatile organic
compounds (VOCs) that escape when hydraulically fractured gas wells are prepared for
production. The rules affect production, processing, transmission, and storage, but not distribution
to customers. EPA estimates that the rules will result in the capture of 95% of the VOCs and
methane otherwise emitted. Although there are costs associated with the use of equipment to
capture the emissions, EPA estimates that the rules will produce a net annual savings of $11
million to $19 million for the industry, because the captured gas and condensate can be sold.
Some states already require similar measures, and EPA estimates that about half of fracked
natural gas wells already meet the standards. For additional information, contact Rick Lattanzio
(7-1754, rlattanzio@crs.loc.gov).
26. Tier 3 Emissions Standards for Passenger Cars and Light Trucks and Gasoline
Standards. In February 2011, EPA began to scope out new emissions standards for conventional
pollutants (i.e., non-greenhouse gases) from passenger cars and light trucks. In a May 2010
memorandum from the White House to the EPA and NHTSA Administrators, President Obama
had directed EPA to review the adequacy of the current “Tier 2” emissions standards for these
vehicles, which EPA finalized in February 2000, and were phased in between MY2004 and
MY2009.66 EPA announced proposed standards March 29, 2013. As with the Tier 2 standards, the
proposed Tier 3 standards include changes to both vehicle emission limits and fuel formulation
rules, lowering allowable sulfur content to facilitate the use of new technology. The proposal
would lower allowable sulfur from 30 parts per million to a maximum of 10, and would require
reductions in vehicle emissions of 70%-80%. In letters to the EPA Administrator, several Senators
have asked EPA to delay its rulemaking over concerns that the new fuel standards would raise the
price of gasoline,67 but EPA maintains that the rule as proposed would add less than a penny a
gallon to the price of gasoline, while reducing emissions by the equivalent of removing 33 million
cars from the road. For additional information, contact Brent Yacobucci (7-9662,
byacobucci@crs.loc.gov) or Rick Lattanzio (7-1754, rlattanzio@crs.loc.gov).
27. Flares and Process Heaters at Petroleum Refineries. On September 12, 2012, EPA
promulgated amendments to New Source Performance Standards for flares and process heaters at
petroleum refineries.68 The amendments are the result of the agency’s reconsideration of
standards it promulgated on June 24, 2008. The agency estimates that the reconsidered rules will
65
U.S. Environmental Protection Agency, “Oil and Natural Gas Sector: New Source Performance Standards and
National Emission Standards for Hazardous Air Pollutants Reviews; Final Rule,” 77 Federal Register 49490, August
16, 2012. For information, see http://www.epa.gov/airquality/oilandgas/actions.html.
66
For more information on the Tier 2 standards, see CRS Report RS20247, EPA's Tier 2 Emission Standards for New
Motor Vehicles: A Fact Sheet, by David M. Bearden.
67
Jeremy P. Jacobs, “Bipartisan Senate Group Seeks Delay in EPA Tailpipe Rules,” E&E News PM, January 12, 2012.
Also, “Four Democratic Senators Urge EPA to Issue Advance Notice on Proposed Rule for Tier 3,” Daily Environment
Report, March 22, 2013.
68
U.S. Environmental Protection Agency, “Standards of Performance for Petroleum Refineries; Performance Standards
for Petroleum Refineries for Which Construction, Reconstruction, or Modification Began After May 14, 2007,” 77
Federal Register, 56422, September 12, 2012.
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have capital costs of $460 million, but will result in savings to the industry of $79 million per
year, while resulting in monetized benefits of $240 million to $580 million annually, principally
from the avoided health impacts caused by reduced emissions of sulfur dioxide and nitrogen
oxides. For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
28. Mercury Cell Chlor-Alkali MACT Standards. In December 2003, EPA promulgated
MACT standards for emissions of hazardous air pollutants from plants that manufacture chlorine
using the mercury cell chlor-alkali process. This is an old technology that has been phased out by
95% of the chlorine industry. At the time of the rule’s promulgation, there were 12 plants still
using the technology; but as of late 2012, there were only four, two of which were expected to
close by early 2013.
EPA was asked to reconsider the 2003 standards by the Natural Resources Defense Council
(NRDC), and it agreed to do so. NRDC argues that EPA should have required the remaining
chlor-alkali plants to switch to newer technology that does not use mercury. After developing new
data on the costs of converting plants to non-mercury technology, EPA proposed revised
standards on June 11, 2008. The revised standards would not have required the technology
switch, but would have required more stringent work practice requirements.
As a result of comments on the June 2008 proposal, the agency proposed a supplement to that
proposal on March 14, 2011.69 The 2011 supplement contains two options: the first would require
the elimination of mercury emissions, effectively requiring conversion to non-mercury-cell
technology. The second option would require a strengthening of work practices (as proposed in
2008) to reduce (but not eliminate) emissions. EPA estimated the annual compliance costs of
Option 1 at $13 million, with benefits ranging from $21 million to $43 million, but it conceded
that there is still uncertainty regarding numerous facets of the cost analysis, and it requested
further comments. Option 2 was estimated to have annual costs of $25,000, with no monetized
benefits. For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
29. Brick and Clay MACT. EPA promulgated Maximum Achievable Control Technology
(MACT) standards for hazardous air pollutants emitted by manufacturers of bricks, structural clay
products, and clay ceramics in 2003, but the standards were vacated by the D.C. Circuit Court of
Appeals in 2007. The agency has not taken action since that time, and was sued by the Sierra
Club for its failure to act. Under a proposed consent decree published December 7, 2012, the
agency has agreed to sign proposed standards in place of the vacated rule by August 30, 2013,
and to sign a final rule for promulgation by July 31, 2014. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
Clean Water Act
30. Construction Site Effluent Limitations Guidelines. On December 1, 2009, EPA
promulgated regulations under the Clean Water Act (CWA), called effluent limitations guidelines
(ELGs), to limit pollution from stormwater runoff at construction sites based on Best Available
69
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants: Mercury
Emissions from Mercury Cell Chlor-Alkali Plants; Supplemental Proposed Rule,” 76 Federal Register 13852, March
14, 2011.
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Technology.70 The rule, called the Construction and Development, or C&D, 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 nationwide
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.
In November 2010, EPA promulgated a direct final rule to stay the effectiveness of the numeric
turbidity limit in the 2009 rule; other portions of the rule remain in effect.71 To resolve industry
challenges, on April 1, EPA proposed modifications of the 2009 rule, including changes specific
to the non-numeric portions and withdrawal of the numeric turbidity effluent limitations in the
2009 rule. If more data on numeric discharge standards for construction sites become available,
EPA could initiate a new rulemaking in the future.72 For additional information, contact Claudia
Copeland (7-7227, ccopeland@crs.loc.gov).
31. Pesticide Application General Permit. EPA has developed 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 was issued on October 31, 2011, in response to a 2009
federal court decision that invalidated a 2006 EPA rule, which had codified the agency’s longstanding view that pesticide applications that comply with federal pesticides law do not require
CWA permits.73 The estimated universe of affected activities is approximately 5.6 million
applications annually, which are performed by 365,000 applicators, in four use patterns: mosquito
and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal
control, and forest canopy pest control. The permit requires all operators covered by the permit to
minimize pesticide discharges to waters by practices such as using the lowest amount of pesticide
product that is optimal for controlling the target pest. It also requires operators to prepare plans to
document their pest management practices. Under OMB’s criteria, the permit is not a significant
rule, but is “economically significant.”74 Meanwhile, in the 112th Congress, the House passed
70
U.S. Environmental Protection Agency, “Effluent Limitation Guidelines for the Construction and Development Point
Source Category,” 74 Federal Register 62996-63058, December 1, 2009.
71
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.
72
U.S. Environmental Protection Agency, “Effluent Limitations Guidelines and Standards for the Construction and
Development Point Source Category,” 78 Federal Register 19434-19442, April 1, 2013.
73
U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination System (NPDES) General
Permit for Point Source Discharges from the Application of Pesticides; Notice of final permit,” 76 Federal Register
68750-68756, November 7, 2011.
74
“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
(continued...)
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legislation (H.R. 872) intended to overturn the court’s 2009 ruling by exempting aerial pesticide
application activities from clean water permit requirements. The Senate Agriculture Committee
also approved H.R. 872, and the text of the bill also was included as a provision of 2012 farm bill
legislation approved by the House Agriculture Committee (H.R. 6083) and in other bills (S. 1720
and S. 2365).75 Similar legislation has been introduced in the 113th Congress (H.R. 935 and S.
175). For additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
32. 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
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, called the “inland
waters rule,” on December 5, 2010. 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. The rule would not establish any requirements directly applicable to regulated
entities or other sources of nutrient pollution.
The 2010 rule has not yet gone into effect, because, in response to criticism of the standards, EPA
delayed the effective date of the rule to allow local governments, businesses, and the state of
Florida time to review the standards and develop implementation strategies. While few dispute
the need to reduce nutrients in Florida’s waters, EPA’s 2010 rule has been controversial, involving
disputes about the data underlying the proposal, potential costs of complying with numeric
standards when they are incorporated by the state into discharge permit limitations, and disputes
over administrative flexibility. EPA has said all along that it prefers that Florida implement its
own numeric nutrient water quality criteria, and in June 2012 the state submitted revised
standards with numeric nutrient criteria. In response, EPA indicated to the state that the agency
likely would approve the standards, at which time the agency would initiate administrative action
to repeal the 2010 federal rule. EPA’s deadline for issuing the second phase of standards, for
estuaries, coastal waters, and flowing waters in the South Florida Region, also was extended
several times to allow the state to develop its own standards.
In March 2013, EPA and the state reached agreement in principle on steps that will put the state in
charge of determining numeric limits on nutrient pollution in Florida waterways. Groundwork for
the agreement was laid in November when EPA approved the state’s June 2012 submission for
lakes, rivers, streams, and some estuaries. Under the March agreement, Florida will move forward
with rulemaking and legislation this year to complete the job of setting numeric nutrient criteria
for Florida waterways. The proposed state legislation would require completion of nutrient
(...continued)
Order 12866.
75
For additional information, see CRS Report RL32884, Pesticide Use and Water Quality: Are the Laws
Complementary or in Conflict?, by Claudia Copeland.
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criteria rulemaking for remaining coastal and estuarine waters by December 1, 2014, and
establishment of interim nutrient standards until then. EPA issued a statement saying that the
agency is prepared to withdraw federal rules for any waters that become covered by state law that
meets requirements of the CWA.76 For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
33. 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 jurisdictions 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.77 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 jurisdictions 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.78 Pursuant to the schedule of steps in the TMDL,
jurisdictions are now developing specific plans called Watershed Implementation Plans (WIPs),
which outline the types of controls and best management practices that will be used to reduce
pollution in the Bay. EPA approved the first phase WIPs in December 2010, and also has
reviewed the jurisdictions’ Phase II WIPs, which provide greater detail about pollutant reductions
planned through the year 2017. The TMDL has been controversial with agricultural and other
groups that are concerned about the likely mandatory nature of many of EPA’s and states’
upcoming actions. A lawsuit challenging EPA’s authority to set pollution limits under the
multistate TMDL was filed by the American Farm Bureau Federation in January 2011. For
additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
34. Airport Deicing Effluent Limitations Guidelines and New Source Performance
Standards. In April 2012, EPA promulgated regulations under the CWA to limit water pollution
from aircraft and airport runway deicing operations.79 The rule is intended to limit runoff of
deicing fluid, because it contains urea and other contaminants that contribute to low oxygen
levels in streams, which can cause fish kills, algal blooms, and contamination of surface water or
groundwater. The rule, which had been under development for several years and was proposed in
2009, is part of ongoing EPA activities under the CWA to regulate wastewater discharges from
categories of industries through new and revised effluent limitations guidelines. EPA estimated
that the final rule will reduce the volume of deicing-related pollutants by 16.4 million pounds at a
cost of $3.5 million annually. Those estimates are substantially less than the 44.6 million pounds
of pollutants estimated in the proposed rule, which was projected to cost the industry $91.3
76
For additional information, see http://www.epa.gov/lawsregs/rulesregs/florida_index.cfm.
For additional information, see CRS Report R42752, Clean Water Act and Pollutant Total Maximum Daily Loads
(TMDLs), by Claudia Copeland.
78
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.
79
U.S. Environmental Protection Agency, “Effluent Limitations Guidelines and New Source Performance Standards
for the Airport Deicing Category; Final rule,” 77 Federal Register 29168-29205, May 16, 2012.
77
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million annually. EPA estimates that the final rule will apply to 198 existing airports. For
additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
35. “Post-Construction” 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 rule
is expected to focus on stormwater discharges from developed or 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. Under a consent agreement
with environmental groups, EPA expects to propose a rule by June 10, 2013, and to issue a final
rule by December 10, 2014. For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
36. Revised Cooling Water Intake Rule. EPA has proposed a CWA rule to protect fish from
entrainment by cooling water intake structures at existing power 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.80 The proposal also 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.81 The rule combines cooling water intake
rules that apply to approximately 1,150 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, establishing deadlines for the agency to propose and
finalize a revised cooling water intake rule. EPA proposed the rule on March 28, 2011, and, under
the consent decree, is required to take final action by June 30, 2013. Even before release, the
proposed rule was highly controversial. Many in industry feared, while environmental groups
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. In addition, in June 2012, EPA announced that it is considering options for revising
portions of the proposed rule.82 For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
37. Revised Steam Electric Effluent Limitations Guidelines. Under authority of CWA Section
304, EPA establishes national technology-based regulations, called effluent limitations guidelines
80
40 CFR §125.90 and 40 CFR §125.130.
Entergy Corp. v. Riverkeeper Inc., 129 S. Ct. 1498 (2009).
82
The rule was published in the Federal Register on April 20, 2011. 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.
81
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(ELGs), to reduce pollutant discharges from industries directly to waters of the United States and
indirectly to municipal wastewater treatment plants based on Best Available Technology. These
requirements are incorporated into discharge permits issued by EPA and states. The current steam
electric power plant rules83 apply to about 1,200 nuclear- and fossil-fueled steam electric power
plants nationwide, 500 of which are coal-fired. 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.84
Pursuant to a consent decree with environmental litigants, EPA agreed to propose the revised
power plant ELG by April 19, 2013, and to finalize the rule by May 22, 2014. For additional
information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
38. Oil Spill Prevention, Control, and Countermeasure Requirements, including deadline
extension for farms and exemption for milk storage. To prevent the discharge of oil from
onshore and offshore facilities, EPA issued CWA regulations for spill prevention control and
countermeasure (SPCC) plans in 1973.85 SPCC plans apply to owners or operators of certain nontransportation-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 2002.86 However, EPA has both extended the
2002 rule’s compliance date (on multiple occasions) and made further amendments to the 2002
rule. On one occasion, amendments offered by the Bush Administration’s EPA in 2008 were
eliminated by the Obama Administration’s EPA the following year.87
For most types of facilities subject to SPCC requirements, the deadline for complying with the
changes made in 2002 was November 10, 2011.88 However, in a November 2011 rulemaking,
EPA extended the compliance date for farms to May 10, 2013.89
Pursuant to the CWA definition of oil, the SPCC requirements apply to petroleum-based and nonpetroleum-based oil.90 In a 1975 Federal Register notice, EPA clarified that its 1973 SPCC
regulations apply to oils from animal and vegetable sources.91 EPA subsequently stated that “milk
83
40 CFR §423.10.
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.”
85
38 Federal Register 34164, December 11, 1973.
86
67 Federal Register 47041, July 17, 2002.
87
A November 13, 2009 rule (74 Federal Register 58784) eliminated specific exclusions/exemptions made by a
December 5, 2008 rulemaking (73 Federal Register 74236).
88
U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Rule Compliance Date Amendment,” 75 Federal Register 63093, October 14, 2010.
89
U.S. Environmental Protection Agency, “Oil Pollution Prevention: Spill Prevention, Control, and Countermeasure
Rule—Compliance Date Amendment for Farms,” 76 Federal Register 72120, November 22, 2011.
90
See CWA Section 311(a) (33 U.S.C. 1321(a)).
91
40 Federal Register 28849, July 9, 1975.
84
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typically contains a percentage of animal fat, which is a non-petroleum oil” and is thus potentially
subject to SPCC provisions.92 However, in January 2009, EPA proposed a conditional exemption
from SPCC requirements for milk storage units.93 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.94 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).
39. “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 could impair 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 2011, 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
water quality would apply to more waters than currently are considered jurisdictional—a
conclusion that has pleased some and alarmed others.95 The proposed guidance was subject to
public comment until July 31, 2011, and revised guidance was sent to OMB for review on
February 21, 2012. At some point—either after the guidance is finalized or in lieu of final
guidance—the agencies expect to propose revisions to their regulations to further clarify which
waters are subject to CWA jurisdiction, consistent with the Supreme Court’s rulings, but there is
92
74 Federal Register 2461, January 15, 2009.
U.S. Environmental Protection Agency, “Oil Pollution Prevention: Spill Prevention, Control, and Countermeasure
Rule Requirements—Amendments,” 74 Federal Register 2461, January 15, 2009.
94
76 Federal Register 21652, April 18, 2011.
95
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.
93
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no schedule for when this will occur.96 For additional information, contact Claudia Copeland (77227, ccopeland@crs.loc.gov).
40. 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 improve regulation and strengthen environmental reviews of
permit requirements under the CWA and the Surface Mining Control and Reclamation Act
(SMCRA). Viewed broadly, the Administration’s combined actions on mountaintop mining
displease both industry and environmental advocates. The additional scrutiny of permits and more
stringent requirements have angered the coal industry and many of its supporters. At the same
time, while environmental groups support EPA’s steps to restrict the practice, many favor tougher
requirements or even total rejection of mountaintop mining in Appalachia. Many of the actions
have been highly controversial in Congress.
EPA is a key participant in several of the actions. In 2009 EPA and the Corps began conducting
detailed evaluations of 79 pending CWA permit applications for surface mining activities in order
to limit environmental impacts of the proposed activities under a process called Enhanced
Coordination Procedures (ECP). Coal industry groups and coal state officials contended that the
ECP process resulted in costly delay in issuance of permits. They challenged the process in
federal court, and in October 2011, the court struck down the ECP as an unlawful transfer of legal
authority from the Corps to EPA. The agencies are continuing to review permit applications for
surface coal mining projects in Appalachia under existing rules, but not the vacated ECP. In July
2012, the same federal court invalidated a 2011 EPA guidance document intended to help assess a
mine’s water quality impacts, ruling that EPA had overstepped its statutory authority. The
government has appealed both of these rulings.
In June 2010, the Army Corps suspended the use of a particular CWA general permit for surface
coal mining activities in Appalachia. In February 2012, the Corps reissued all of its CWA general
permits, including one (nationwide permit 21) to replace the suspended permit with a permit
containing more stringent CWA rules applicable to these coal mining operations.97
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
that affects surface coal mining operations, called the stream buffer zone rule, which was
promulgated in December 2008.98 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. Since then, OSM officials have been working on
developing a new rule and an accompanying draft environmental impact statement (EIS), which
96
For additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA):
Rapanos and Beyond, by Robert Meltz and Claudia Copeland.
97
For information see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits Program: Issues and
Regulatory Developments, by Claudia Copeland.
98
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.
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are expected to be proposed in 2014. The revised stream buffer rule, when promulgated, is
expected to apply nationwide, not just in Appalachia. Potential changes to the 2008 rule have
drawn controversy and criticism. In the 112th Congress, the House passed H.R. 3409, to prevent
the Secretary of the Interior from proposing or issuing regulations under SMCRA prior to
December 31, 2013, that would designate areas as “unsuitable” for surface coal mining, adversely
affect coal mine employment, or reduce the size of the coal market. For additional information,
contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
Toxic Substances Control Act (TSCA)
41.-43. 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).
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. In May 2010, EPA published an advanced
notice of proposed rulemaking that addressed public and commercial buildings that are not childoccupied.99 A final version of that rule was expected in 2015, according to the Unified Regulatory
Agenda issued for fall 2011. However, on Dec. 31, 2012, EPA published a notice in the Federal
Register stating:
EPA is in the process of determining whether these activities [renovation, repair, and
painting of public and commercial buildings] create lead-based paint hazards, and, for those
that do, developing certification, training, and work practice requirements as directed by the
Toxic Substances Control Act (TSCA). This document opens a comment period to allow for
additional data and other information to be submitted by the public and interested
stakeholders. This document also provides advance notice of EPA’s plan to hold a public
meeting on June 26, 2013.100
The comment period for this phase of rulemaking ended April 1, 2013. A second rule, proposed
in May 2010, addressed the testing requirements after renovations are complete.101 That rule was
revised and promulgated July 15, 2011, effective October 4, 2011.102 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
99
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.
100
U.S. Environmental Protection Agency, “Meetings: Lead; Renovation, Repair, and Painting Program for Public and
Commercial Buildings,” 77 Federal Register 76996, Dec. 31, 2012.
101
U.S. Environmental Protection Agency, “Clearance and Clearance Testing Requirements for the Renovation,
Repair, and Painting Program: Lead; Proposed Rule,” 75 Federal Register 25038-25073, May 6, 2010.
102
U.S. Environmental Protection Agency, “Lead: Clearance and Clearance Testing Requirements for the Renovation,
Repair, and Painting Program,” Final Rule, 76 Federal Register 47918-47946, July 15, 2011.
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significant amounts of time there.103 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 2010, Congress included a provision in P.L. 111-212, a supplemental
appropriations act, which prohibited the use of “funds made available by this Act” to levy fines or
to hold any person liable for work performed under the rule. 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 in P.L. 111-88 to enforce the rule.104 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. In the 112th Congress, H.R.
5911/S. 2148 would have amended provisions of TSCA imposing these requirements, but neither
chamber acted on this proposal. For additional information, contact Linda-Jo Schierow (7-7279,
lschierow@crs.loc.gov)
Solid Waste/Underground Storage Tanks (RCRA)
44. Coal Combustion Waste. In 2008, coal-fired power plants accounted for almost half of U.S.
electric power, resulting in approximately 136 million 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.105 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.
103
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.
104
Sven-Erik Kaiser, EPA Congressional Liaison, personal communication, September 14, 2011.
105
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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EPA has not projected a date to promulgate a final rule. However, on April 5, 2012, a coalition of
environmental groups filed suit to compel EPA to finalize its proposed rulemaking.106 For
additional information, contact Linda Luther (7-6852, lluther@crs.loc.gov).
45. Identification of Non-Hazardous Materials That Are Solid Wastes When Burned. In
conjunction with emission standards for boilers and solid waste incinerators discussed above in
Items 17, 18, and 19, in February 2011, EPA finalized regulations intended to clarify when certain
materials burned as fuel in a combustion unit would be considered a “solid waste.”107 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.”108 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.’”109 The 2011 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.110 EPA anticipates that boiler operators that
burn materials newly-identified as a solid waste would switch to a non-waste fuel, rather than
being subject to the more stringent emission standards applicable to solid waste incinerators (Item
19, above). The final rule also addresses a host of concerns raised 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 17, 18,
and 19, above). On February 7, 2013, EPA amended the 2011 rule to clarify specific elements of
the regulations. The amendments were jointly promulgated with EPA’s reconsideration of the
CISWI proposed rule (Item 19, above). For additional information, contact Linda Luther (7-6852,
lluther@crs.loc.gov).
46. Underground Storage Tanks. In November 2011, EPA proposed revisions to the agency’s
1988 Underground Storage Tank (UST) technical regulations, financial responsibility
requirements, and state program approval regulations promulgated under Subtitle I of the Solid
Waste Disposal Act (SWDA).111 The proposed revisions address changes made in the Energy
106
Appalachian Voices et al. v. Lisa P. Jackson, Case No. 1:12-cv-00523 (D.D.C.), April 5, 2012.
Environmental Protection Agency, Final Rule, “Identification of Non-Hazardous Secondary Materials That Are
Solid Waste,” 76 Federal Register 15455, March 21, 2011.
108
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.
109
This and related court finding are discussed in the final rule at 76 Federal Register 15461.
110
See EPA’s web page “Identification of Non-Hazardous Materials That Are Solid Waste: Final Rulemaking” at
http://www.epa.gov/epawaste/nonhaz/define/index.htm.
111
Environmental Protection Agency, “Revising Underground Storage Tank Regulations-Revisions to Existing
Requirements for Secondary Containment and Operator Training,” 76 Federal Register 71708, November 18, 2011.
(continued...)
107
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Policy Act of 2005 (P.L. 109-58)112 and also update UST leak prevention and detection
technologies and requirements.113 The revisions are intended to improve leak prevention and
detection of releases from USTs, which EPA and states report as a leading source of groundwater
contamination. Proposed revisions to UST technical regulations include (1) secondary
containment requirements for new and replaced tanks and piping, (2) training requirements for
UST owners and operators, (3) new operation and maintenance requirements, (4) new release
prevention and detection technologies, and (5) updated codes of practice.
EPAct 2005 amended the SWDA to require states that receive federal funding under Subtitle I to
meet certain requirements (such as operator training and secondary containment requirements).
The proposed rule would expand on EPAct and further apply these requirements in Indian country
and in states that do not receive Subtitle I funds. EPA’s stated goal is to make UST requirements
similar in all states and in Indian Country. Additionally, the proposed rule would expand the
scope of certain requirements beyond those established in law. For example, EPAct requires states
receiving Subtitle I money to require secondary containment for new or replaced tanks if they are
installed within 1,000 feet of a community water system or drinking water well. EPA proposes to
require secondary containment for new or replaced tanks in all locations.
Among the updates to the 1988 UST rules, the proposal would modify the requirement that UST
systems must be compatible with stored substances, by adding options for owners and operators
to demonstrate that UST systems are compatible with fuel containing more than 10% ethanol
(E10) or 20% biodiesel (B20).114 The public comment period for the proposal closed on April 16,
2012. EPA plans to issue a final rule in late 2013. For additional information, contact Mary
Tiemann (7-5937, mtiemann@crs.loc.gov.)
Two tables follow. In the first, Table 2, we identify major or controversial rules promulgated by
EPA since January 2009. In the second, Table 3, we identify rules still under development at the
agency. The latter table includes rules not yet proposed, rules that have been proposed but not yet
promulgated, and in several cases rules already promulgated but now being reconsidered by the
agency.
(...continued)
The Solid Waste Disposal Act (SWDA) is commonly referred to as the Resource Conversation and Recovery Act.
112
P.L. 109-58, Title XV, Subtitle B, comprises the Underground Storage Tank Compliance Act (USTCA) which
broadly amended the UST leak prevention and provisions of SWDA Subtitle I (42 U.S.C. §6991-6991m).
113
Technical regulations are located at 40 C.F.R. §280. EPA also proposes to revise state program approval
requirements in 40 C.F.R. §281 to incorporate changes to the technical regulations.
114
A comparison of the key differences between the 1988 rule and the proposed rule is available at
http://www.epa.gov/oust/fedlaws/Crosswalk.pdf.
Congressional Research Service
32
EPA Regulations: Too Much, Too Little, or On Track?
Table 2. Major or Controversial Rules Promulgated by EPA Since January 2009
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.
First data were
released 1/11/12.
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 were
subsequently 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
May 7, 2010; these, in
turn, triggered GHG
permit requirements
for stationary sources.
3.
Clean Air Act
Light Duty Motor
Vehicle GHG
Rule for Model
Years 2012-2016
Promulgated May 7,
2010.
Required by
Section 202 of
the Clean Air Act
once the agency
found
endangerment of
public health or
welfare from
GHG emissions.
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
Light Duty Motor
Vehicle GHG
Rule for Model
Years 2017-2025
Promulgated August
28, 2012.
Same as 3.
New cars, minivans,
SUVs, and light trucks,
beginning in model
year 2017. EPA
estimates that the
technology to comply
with the standards will
add roughly $1,800 to
the cost of new
vehicles in 2025,
although lifetime fuel
savings would total
roughly $5,700 to
$7,400.
5.
Clean Air Act
GHG Tailoring
Rule
Promulgated June 3,
2010.
None
Limits to an estimated
1,600 the number of
facilities required to
obtain GHG emission
permits over each of
the years 2011-2013.
Congressional Research Service
33
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
6.
Clean Air Act
PSD and Title V
Permit
Requirements for
GHG Emissions
Effective January 2,
2011.
Required once
the Light Duty
Motor Vehicle
Rule was
promulgated.
Applies only to large
stationary sources
identified by the
Tailoring Rule.
7.
Clean Air Act
Medium- and
Heavy-Duty
Vehicle GHG
Rule
Promulgated
September 15,
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.
9.
Clean Air Act
Expanded
Renewable Fuel
Standard (RFS2)
Promulgated March
26, 2010 for 2010;
on December 21,
2010 for 2011; and
on January 9, 2012
for 2012.
Decisions
required by the
Energy
Independence and
Security Act of
2007.
Petroleum refiners,
biofuel producers.
10.
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.
Congressional Research Service
34
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
11.
Clean Air Act
National
Ambient Air
Quality Standard
for Ozone
Proposed January
19, 2010; withdrawn
September 2, 2011.
EPA is near
completion of its
next review, with
proposal of any
changes in the
standards expected
by late 2013, and
promulgation in late
2014.
In response to
petitions for
review, EPA
agreed to
reconsider the
ozone NAAQS
promulgated in
March 2008.
Court challenge
to the 2008
standards
(Mississippi v. EPA)
was stayed
pending the
reconsideration,
but is now
proceeding. Clean
Air Act required
review of the
2006 standards by
March 2013.
Recent ozone levels in
the vast majority of
the 675 counties with
monitors would have
violated the proposed
2010 standard;
implementation of the
proposed standard
could have led to
widespread new
emission controls at a
projected cost of $19
billion to $25 billion
annually in 2020, with
comparable levels of
benefits, according to
EPA.
12.
Clean Air Act
National
Ambient Air
Quality Standard
for Particulate
Matter (PM),
including “farm
dust”
Promulgated January
15, 2013.
D.C. Circuit
remanded the
2006 fine
particulate (PM2.5)
standards to EPA
in February 2009.
Clean Air Act
required review
by October 2011.
PM standards affect a
wide range of sources
because they address
all kinds of particles
and aerosols in the
atmosphere.
13.
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.
14.
Clean Air Act
Cross-State Air
Pollution Rule
Promulgated August
8, 2011.
Implementation was
stayed by the D.C.
Circuit Court of
Appeals, December
30, 2011, and the
standards were
vacated and
remanded to EPA
August 21, 2012.
The rule would
replace the Clean
Air Interstate
Rule, which the
D.C. Circuit
remanded 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
35
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
15.
Clean Air Act
Mercury and Air
Toxics Standards
/ MACT for
Electric
Generating Units
(“Utility MACT”)
Promulgated
February 16, 2012.
EPA reconsidered
the standards for
new facilities and
promulgated
changes March 29,
2013.
Clean Air
Mercury Rule was
vacated and
remanded to EPA
in February 2008.
EPA, under a
consent decree,
agreed to
promulgate
MACT standards
by November 16,
2011.
Coal-fired electric
generating units, which
currently generate
more than one-third of
the nation’s electricity.
EPA estimates annual
cost at $9.6 billion,
with benefits of $37
billion to $90 billion
annually.
17.
Clean Air Act
MACT to
Control Air
Toxics from
Boilers (”Boiler
MACT”)
Finalized February
21, 2011, The
agency began
reconsideration of
elements of the rule
the same day.
Revisions were
promulgated January
31, 2013. In addition
to changing the
standards, EPA gave
the affected units
extra time to
comply.
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.
EPA estimates annual
cost at $1.2 billion,
with annual benefits of
$25 billion to $67
billion.
18.
Clean Air Act
Area Source
Standards for
Boilers
Finalized February
21, 2011. The
agency began
reconsideration of
elements of the rule
the same day.
Revisions were
promulgated
February 1, 2013.
D.C. Circuit
vacated the boiler
and related
incinerator rules
in 2007.
Boilers at thousands of
smaller commercial,
industrial, and
institutional facilities.
19.
Clean Air Act
CISWI
Incinerator
Standards
Finalized February
21, 2011, (along
with RCRA rules to
identify nonhazardous materials
that are solid wastes
when burned—see
Item 45). The
agency began
reconsideration of
elements of the rule
the same day, and
revisions were
promulgated
February 7, 2013.
D.C. Circuit
vacated the rule
in 2007.
106 boilers that qualify
as incinerators because
they burn solid waste.
Congressional Research Service
36
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
20.
Clean Air Act
Portland Cement
Manufacturing
MACT and NSPS
Promulgated
September 9, 2010.
Portions of the rule
were remanded to
the agency in
December 2011,
Revised standards
were promulgated
February 12, 2013,
In addition to
changing the 2010
standards, EPA gave
the industry an
additional two years
to comply.
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.
21.
Clean Air Act
RICE Rule for
Stationary Diesel
Engines
Promulgated March
3, 2010. EPA
revised several
aspects of the rules,
January 30, 2013.
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.
After
promulgation,
EPA reached
another
settlement
agreement in
January 2012,
which required
the rule’s
reconsideration.
900,000 engines used
as backup generators
or to power
compressors and
pumps by industrial,
agricultural, or oil and
gas industry sources.
22.
Clean Air Act
RICE Rule for
Stationary SparkIgnition Engines
Promulgated August
20, 2010. EPA
revised several
aspects of the rules,
January 30, 2013.
Same as Item 21.
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
37
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
23.
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,
24.
Clean Air Act
Emission Control
Areas for OceanGoing Ships
International
Maritime
Organization gave
final approval to
EPA’s proposal in
March 2010. At U.S.
request, the IMO
added U.S.
Caribbean waters to
the list of covered
areas in July 2011.
None
The measure, which is
generally supported by
the maritime industry,
will require use of low
sulfur fuels within 200
nautical miles of most
of the U.S. coast.
25.
Clean Air Act
Oil and Natural
Gas Air Pollution
Standards
Promulgated August
16, 2012.
EPA acted under
a consent
agreement signed
in February 2010
to revise existing
NSPS and
hazardous
pollutant rules.
About 11,000 new
natural gas wells will
be affected annually.
The standards are the
first national air
emission standards for
hydraulically fractured
wells.
27.
Clean Air Act
Flares and
Process Heaters
Promulgated
September 12,
2012.
None. In
response to
petitions, EPA
agreed to
reconsider rules
it had
promulgated in
June 2008.
Petroleum refineries.
31.
Clean Water
Act
Pesticide
Application
General Permit
Final permit issued
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.
Congressional Research Service
38
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
32.
Clean Water
Act
Florida Nutrient
Water Quality
Standards
Numeric nutrient
standards for
Florida inland
waters promulgated
December 5, 2010.
EPA and Florida
announced
agreement in
principle March 15,
2013, on plan for
state to adopt
numeric nutrient
criteria in lieu of
federal rules.
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).
33.
Clean Water
Act
Chesapeake Bay
TMDL
TMDL finalized by
EPA December 29,
2010. Bay
jurisdictions are
developing
Watershed
Implementation
Plans.
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.
34.
Clean Water
Act
Airport Deicing
Effluent
Limitations
Guidelines and
NSPS
Promulgated April
25, 2012.
None
198 existing airports.
38.
Clean Water
Act
SPCC Revisions,
including
Compliance Date
Extension for
Farms and
Exemption for
Milk Storage
Final rule extending
compliance date to
May 10, 2013, was
promulgated
November 22,
2011. Final rule for
milk storage
exemption was
promulgated April
18, 2011.
None
Farms subject to SPCC
provisions and
applicable facilities that
store oil, which
includes milk.
45.
Resource
Conservation
and Recovery
Act (RCRA)
Identification of
Non-Hazardous
Materials That
Are Solid Wastes
When Burned
Finalized February
21, 2011 (along with
CAA boiler MACT
and area source
rules and CISWI
standards—see
Items 17-19). The
agency began a
reconsideration of
elements of the rule
the same day.
Revisions were
promulgated
February 7, 2013.
In 2007 D.C.
Circuit vacated
the CISWI
definitions rule in
a decision that
also addressed
CISWI and boiler
MACT standards.
Combustion units that
burn non-hazardous
secondary materials.
Source: Compiled by CRS.
Congressional Research Service
39
EPA Regulations: Too Much, Too Little, or On Track?
As noted earlier, Table 3 identifies rules still under development at the agency. The latter include
rules not yet proposed, rules that have been proposed but not yet promulgated in final form, and
in several cases rules already promulgated but now being reconsidered by the agency.
Table 3. Major Rules and Modifications Under Development at EPA
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
8.
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.
As of April 2013, the
standards had not
been proposed.
EPA has been
sued by numerous
parties for its
failure to issue
NSPS for GHG
emissions from
refineries
(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.
9.
Clean Air Act
Expanded
Renewable Fuel
Standard (RFS2)
Standards for use of
cellulosic biofuels in
2013 (revising
downward the
amount that would
otherwise be
required by statute)
were proposed
February 7, 2013,
and the 2012
requirement was
revised to zero.
Decisions
required by the
Energy
Independence and
Security Act of
2007.
Petroleum refiners,
biofuel producers.
Congressional Research Service
40
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
16.
Clean Air Act
NSPS to Control
GHG Emissions
from Electric
Generating Units
EPA proposed
standards April 13,
2012. Under a
settlement
agreement with 11
states and other
parties, EPA had
agreed to take final
action on the
proposal by May 26,
2012. The Clean Air
Act requires
promulgation one
year after proposal.
EPA was 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
one-third of all
U.S. GHG
emissions.
Primarily coal-fired
electric generating
units, which generate
more than one-third of
the nation’s electricity.
26.
Clean Air Act
Tier 3 Motor
Vehicle Emission
and Fuel
Standards
EPA signed
proposed standards
March 29, 2013.
None
New car and light
truck manufacturers;
petroleum refiners.
28.
Clean Air Act
Mercury Cell
Chlor-Alkali
MACT Standards
EPA proposed
revised standards
June 11, 2008, and
March 14, 2011.
None
Four facilities that
produce chlorine using
the mercury cell chloralkali process. Most of
the industry has
converted to a more
efficient process that
does not use mercury.
Congressional Research Service
41
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
29.
Clean Air Act
Brick and Clay
Product MACT
EPA has agreed to
sign proposed
standards by August
30, 2013, and final
standards by July 31,
2014.
D.C. Circuit
Court of Appeals
vacated and
remanded
standards for this
category of
sources in 2007.
EPA reached a
consent
agreement in
November 2012
on a schedule for
replacement
standards.
Brick and clay product
manufacturers.
30.
Clean Water Act
Construction Site
Effluent
Limitations
Guidelines
Rule was
promulgated
December 1, 2009.
A portion of the
rule was stayed for
reconsideration.
EPA proposed
amendments to the
2009 rule on April 1.
Federal court
ordered EPA to
issue the final rule
by December 1,
2009.
Affects about 82,000
firms involved in
residential, commercial,
highways, street, and
bridge construction.
35.
Clean Water Act
“PostConstruction”
Stormwater Rule
EPA expects to
propose a rule in
June 2013 and issue
a final rule in
December 2014.
May 2010 consent
decree, as
amended.
Unknown at this time.
36.
Clean Water Act
Revised Cooling
Water Intake
Rule
EPA proposed
regulations March
28, 2011. Final rule
is due by June 27,
2013.
EPA rules issued
in 2004 were
remanded by
order of a federal
court.
Proposal applies to
approximately 1,150
existing power plants
and certain other
manufacturing facilities.
37.
Clean Water Act
Revised Steam
Electric Effluent
Limitations
Guidelines
A proposed rule is
due by April 19,
2013.
Consent decree,
as amended,
requires EPA to
promulgate a final
rule by May 22,
2014.
Proposal will apply to
existing and new steam
electric power plants.
39.
Clean Water Act
‘Waters of the
United States’
Guidance
Revised guidance
proposed April 27,
2011.
None
Potentially affects a
wide range of entities
and activities subject to
CWA requirements,
including permits.
40.
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 agencies
to strengthen
environmental
reviews and revise
regulations.
None
Surface coal mining
operations in the
Appalachian region.
Congressional Research Service
42
EPA Regulations: Too Much, Too Little, or On Track?
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
4143.
Toxic Substances
Control Act
Lead Renovation,
Repair, and
Painting
Final rule eliminating
the opt-out
provision was
promulgated May 6,
2010. Final rule
regarding clearance
testing requirements
was promulgated
July 15, 2011. An
advanced notice of
proposed
rulemaking for work
in public and
commercial buildings
is being revised as
announced Dec. 31,
2012, and is
expected to be
finalized in 2015.
August 2009
settlement
agreement set
numerous
deadlines for
revisions of a
2008 lead rule.
Workers and firms
that remodel, repair,
or paint homes and
some commercial
buildings.
44.
Resource
Conservation
and Recovery
Act (RCRA)
Coal Combustion
Waste
Proposed June 21,
2010.
None
Coal-fired electric
power plants.
46.
Resource
Conservation
and Recovery
Act (RCRA)
Underground
Storage Tanks
Proposed
November 18, 2011.
Proposal
addresses
provisions of the
Energy Policy Act
of 2005 (P.L. 10958).
States and owners and
operators of
underground storage
tanks containing either
petroleum or
hazardous chemicals.
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
CRS analysts, listed below, contributed to this report.
Area of Expertise
Name
Phone
E-mail
Regulatory reform
Maeve Carey
7-7775
mcarey@crs.loc.gov
Congressional Research Service
43
EPA Regulations: Too Much, Too Little, or On Track?
Area of Expertise
Name
Phone
E-mail
Clean Water Act
Claudia Copeland
7-7227
ccopeland@crs.loc.gov
Clean Air Act, oil and natural gas
Rick Lattanzio
7-1754
rlattanzio@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
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 and
underground storage tanks
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
44, including riders on
appropriations bills, stand-alone legislation, resolutions of disapproval under the Congressional
Review Act, and amendments to the Clean Air Act. Several of these bills passed the House in the
112th Congress, but died in the Senate. (Earlier versions of this report described specific bills.
Staff interested in these bills may wish to contact the report’s authors for additional information.)
In addition to measures that targeted greenhouse gas regulations, bills passed by the House in the
112th Congress addressed other EPA regulatory actions affecting electric power plants, industrial
boilers and incinerators, coal combustion waste, cement kilns, and rural dust. None of these
passed the Senate.
Congressional Research Service
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Beyond the criticism of specific regulations, there have also been calls for broad regulatory
reforms in the 112th and 113th Congress—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. 367, the Regulations from the Executive in Need of Scrutiny (REINS) Act,
which in general provides that major rules of the executive branch shall have no force or effect
unless a joint resolution of approval is enacted into law.23 The bill has passed the House in both
the 112th and 113th Congresses. Other bills passed by the House in the 112th Congress proposed a
number of broad regulatory reforms, including requiring agencies to adopt the least costly rule
that meets relevant statutory objectives unless the benefits justify additional costs; providing for
judicial review of certain requirements and determinations for which judicial review is not
currently available; altering judicial deference to agency interpretations of rules; enhancing
regulatory review authority of the Small Business Administration; and/or placing moratoria on the
issuance of new regulations.
Conclusions
This report has been updated frequently since the first version was released early in 2011. Many
of the issues that were raised then regarding specific regulations have now been resolved—at
least to the extent that proposed rules have been finalized. Still, the broader question of whether
the Obama Administration’s EPA is “overreaching” in its regulatory efforts has not gone away.
Critics both in Congress and outside of it regularly accuse the agency of overkill. In April 2013,
in a case involving four of EPA’s greenhouse gas regulatory actions, for example, a dozen states
led by Texas asked the Supreme Court to “rein in a usurpatious agency and remind the President
and his subordinates that they cannot rule by executive decree.”24
What is different three years after our first report is that there is now a more detailed record of
EPA actions to be evaluated. Reviewing that record, we find—
•
Many of the proposals that were controversial when our first report was released
are now final.
•
In general, the proposed versions of these rules served as “high water marks”:
none of the final rules is more stringent than what was proposed and the final
versions of many of the most controversial rules were made less stringent.
•
In revising proposed rules, EPA often relied on data submitted by industry and
other stakeholders, acknowledging that it had inadequate or incomplete data
when it proposed the rules.
•
In several instances, the regulated community was given more time to comply
than originally expected.
23
For information, see CRS Report R41651, REINS Act: Number and Types of “Major Rules” in Recent Years, by
Maeve P. Carey and Curtis W. Copeland.
24
Petition for certiorari filed by State of Texas et al. at 2, granted, 2013 WL 1743433 (Oct. 15, 2013), from Coalition
for Responsible Regulation v. EPA, 682 F.3d 102 (D.C. Cir. 2012). Five other petitions for certiorari from the same
decision were also granted; the combined cases will be known in the Supreme Court as Utility Air Regulatory Group v.
EPA (No. 12-1146). Oral argument is scheduled for February 24, 2014.
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•
Regardless of modifications in the final rules, many of the regulations have been
challenged in court by a variety of groups—some seeking more stringent rules,
others less stringent.
•
Although many of these challenges remain to be heard by the courts, thus far the
courts have upheld EPA decisions on the final regulations in most cases.
•
The pace of new regulation has slowed considerably since 2011. In part, this may
be because a backlog of rules that were remanded to the agency during the Bush
Administration has been largely addressed; other rules were delayed until after
the 2012 election, perhaps due to political considerations.
•
A number of EPA proposals remain under development, with planned or courtordered promulgation dates on the horizon; many of these remain controversial.
Organization of the Report
Because so many of the rules that we listed in the first version of this report have now been
promulgated, we have reorganized this update to separate these largely “resolved” issues from
proposals that remain under consideration. In order to focus attention on the rules that remain to
be finalized, we have removed rules that are already final from the body of the report and placed
them in an Appendix. What remains in the text are the rules that are most likely to be the subject
of debate in the remainder of President Obama’s term. These rules are organized under four
headings: Clean Air Act and Climate Change; Clean Water Act; Toxic Substances Control Act;
and Solid Waste (Resource Conservation and Recovery Act). Following the text, information
concerning the rules that remain under development is summarized in Table 2.
Clean Air Act and Climate Change
1. Carbon Pollution Standards for New and Existing Power Plants. EPA has stated for some
time that it would undertake 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 mercury and air toxics (MATS or MACT) standards for power plants. 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. In a settlement agreement with 11 states and other parties, EPA agreed to propose the
NSPS for power plants by July 26, 2011, and take final action on the proposal by May 26, 2012.
This schedule encountered delays: proposed standards were not proposed until April 13, 2012.25
EPA faced a statutory deadline of one year after the date of proposal (i.e., April 13, 2013) for
promulgation of final standards, which it did not meet. The agency received more than 2.7 million
comments on the proposed rule—the most it has received on any rule in its 40-year history.
On June 25, 2013, the President directed EPA to re-propose the rule by September 20, 2013. EPA
released a modified proposal on September 20. This re-proposal had not yet appeared in the
Federal Register as of mid-November; thus, a formal period for public comment had not begun.
The President also directed the agency to propose guidelines for emissions from existing
25
The standards appeared in the Federal Register on April 13, 2012. The standards and supporting materials are
available at http://www.epa.gov/carbonpollutionstandard/actions.html.
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generating units by June 1, 2014, finalize them by June 1, 2015, and require the states to submit
implementation plans by June 30, 2016.
EPA set the GHG emission standards as proposed in 2012 and as modified in 2013 at levels
achievable by most natural-gas-fired units without added pollution controls or by coal-fired units
using carbon capture and storage (CCS) technology to capture about 40% of their uncontrolled
emissions. Although the components of CCS technology have been demonstrated, no existing
power plant combines them all in an operating unit, and the electric power industry has generally
concluded that a CCS requirement would effectively prohibit the construction of new coal-fired
plants, other than those already permitted. EPA maintains otherwise, but it also says that, because
of low natural gas prices and abundant existing generation capacity, it believes no new coal-fired
units subject to the proposed standards will be constructed between now and 2020. For additional
information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
2. 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).26 For 2014, EISA is scheduled to require the use of
18.15 billion gallons of ethanol and other biofuels in transportation fuel. Within that mandate, the
statute requires the use of 3.75 billion gallons of advanced biofuels (fuels other than corn starch
ethanol), including 1.75 billion gallons of cellulosic biofuels. Because of concerns that gasoline
and diesel fuel suppliers would be unable to meet the 2014 standards,27 in November 2013 EPA
proposed lowering the advanced biofuel and overall RFS mandates. On November 29, 2013, EPA
proposed an overall RFS of 15.21 billion gallons and an advanced biofuel mandate of 2.2 billion
gallons, below both the actual 2013 level and the 2014 level scheduled in EISA.
Further, because few commercial-scale cellulosic biofuel refineries have begun operation, EPA
has proposed reducing the mandated 2014 level for these fuels from 1.75 billion gallons to 17
million ethanol-equivalent gallons.28
Similar shortfalls have occurred since 2010 when EISA first required the inclusion of cellulosic
biofuels in the RFS, prompting EPA to revise downward the cellulosic mandate each year.
However, through 2012 no commercial-scale cellulosic biofuel plants had begun operation, and
only about 20,000 gallons of cellulosic biofuel had been registered under the RFS, as opposed to
the 10.45 million ethanol-equivalent gallons (8.65 actual gallons) required by EPA. Because of
this shortfall in production capacity, in January 2013 the U.S. Court of Appeals for the D.C.
Circuit vacated the 2012 cellulosic mandate.29 In response, in February EPA revised the 2012
cellulosic standard to zero. As part of the 2014 rulemaking, EPA also proposed rescinding the
2011 cellulosic mandate.
Because of the (vacated) requirement to use fuels that are not available in the market (“phantom
fuels”), EPA’s process for determining annual cellulosic volumes has become controversial.
Legislation introduced in the House and Senate, H.R. 550 and S. 251, would amend the Clean Air
26
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.
27
See section on Ethanol Blend Wall/E15 Waiver in the Appendix to this report.
28
U.S. Environmental Protection Agency, “2014 Standards for the Renewable Fuel Standard Program; Proposed Rule,”
78 Federal Register 71732-71784, November 29, 2013.
29
API v. EPA, 706 F.3d 474 (D.C. Cir. 2013).
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Act to set cellulosic fuel requirements based on the prior years’ average monthly production as
opposed to the current statutory requirement for EPA to project production capacity for the year.
Various other bills to amend the RFS, including legislation to eliminate portions of the RFS,
lower the annual mandated levels, or eliminate the program entirely. For additional information,
contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
3. Tier 3 Emissions Standards for Passenger Cars and Light Trucks and Gasoline
Standards. In February 2011, EPA began to scope out new emissions standards for conventional
pollutants (i.e., non-greenhouse gases) from passenger cars and light trucks. In a May 2010
memorandum from the White House to the EPA and NHTSA Administrators, President Obama
had directed EPA to review the adequacy of the current “Tier 2” emissions standards for these
vehicles, which EPA finalized in February 2000, and were phased in between MY2004 and
MY2009.30 EPA proposed “Tier 3” standards April 13, 2013. As with the Tier 2 standards, the
proposed Tier 3 standards include changes to both vehicle emission limits and fuel formulation
rules, lowering allowable sulfur content to facilitate the use of new technology. The proposal
would lower allowable sulfur from 30 parts per million to a maximum of 10, and would require
reductions in vehicle emissions of 70%-80%. In letters to the EPA Administrator, several senators
have asked EPA to delay its rulemaking over concerns that the new fuel standards would raise the
price of gasoline,31 but EPA maintains that the rule as proposed would add less than a penny a
gallon to the price of gasoline, while reducing emissions by the equivalent of removing 33 million
cars from the road. EPA had hoped to promulgate final standards before the end of 2013, with an
effective date of 2017. The agency recently stated that the rule will not be issued before February
2014, but it expects to keep in place a compliance deadline of 2017. For additional information,
contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov) or Rick Lattanzio (7-1754,
rlattanzio@crs.loc.gov).
4. Ozone Ambient Air Quality Standards. On January 19, 2010, EPA proposed a revision of the
National Ambient Air Quality Standard (NAAQS) for ozone.32 At the President’s request, on
September 2, 2011, this proposal was withdrawn, leaving EPA to implement previously
promulgated 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. 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.
30
For more information on the Tier 2 standards, see CRS Report RS20247, EPA's Tier 2 Emission Standards for New
Motor Vehicles: A Fact Sheet, by David M. Bearden.
31
Jeremy P. Jacobs, “Bipartisan Senate Group Seeks Delay in EPA Tailpipe Rules,” E&E News PM, January 12, 2012.
Also, “Four Democratic Senators Urge EPA to Issue Advance Notice on Proposed Rule for Tier 3,” Daily Environment
Report, March 22, 2013.
32
U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Ozone; Proposed Rule,” 75
Federal Register 2938, January 19, 2010.
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The reconsidered ozone NAAQS that was proposed in January 2010 was 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 $25 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, since work was already underway to update a review of the science that
would result in the reconsideration of the ozone standard in 2013.33 EPA had said it would
propose any changes resulting from this review by the end of 2013, with promulgation late in
2014. That schedule appears to have slipped by at least six months and more likely a year. For
additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
5. Oil and Natural Gas Air Pollution Standards. In February 2010, EPA signed a consent
agreement under which it was to promulgate revisions of the New Source Performance Standards
and Hazardous Air Pollutant standards for oil and gas production by November 30, 2011. The
agency promulgated these rules on August 16, 2012.34 Under the CAA, EPA is required to review
New Source Performance Standards every eight years; the revisions update NSPS rules for VOCs
and SO2 that were promulgated in 1985. Similarly, EPA had a statutory obligation to review
hazardous air pollutant standards for oil and natural gas production, which were issued in 1999,
by 2007. Additionally, the 2012 rules are the first regulations to address emissions from natural
gas wells that use hydraulic fracturing (“fracking”). The new standards, which will be fully
implemented by 2015, will require companies to capture natural gas and volatile organic
compounds (VOCs) that escape when hydraulically fractured gas wells are prepared for
production. The rules affect production, processing, transmission, and storage, but not distribution
to customers. EPA estimates that the rules will result in the capture of 95% of the VOCs otherwise
emitted. Although there are costs associated with the use of equipment to capture the emissions,
EPA estimates that the rules will produce a net annual savings of $11 million to $19 million for
the industry, because the captured gas and condensate can be sold. Some states already require
similar measures, and EPA estimates that about half of fracked natural gas wells already meet the
standards. On August 5, 2013, EPA promulgated updates to the storage tank portions of the rules
in response to petitions for reconsideration. The updates would provide additional time for
compliance and an alternative emissions limit.35 Industry groups have filed lawsuits challenging
both the 2012 standards and the 2013 updates. For additional information, contact Rick Lattanzio
(7-1754, rlattanzio@crs.loc.gov).
6. Brick and Clay MACT. EPA promulgated Maximum Achievable Control Technology
(MACT) standards for hazardous air pollutants emitted by manufacturers of bricks, structural clay
33
The White House, Office of the Press Secretary, “Statement by the President on the Ozone National Ambient Air
Quality Standards,” September 2, 2011.
34
U.S. Environmental Protection Agency, “Oil and Natural Gas Sector: New Source Performance Standards and
National Emission Standards for Hazardous Air Pollutants Reviews; Final Rule,” 77 Federal Register 49490, August
16, 2012. For information, see http://www.epa.gov/airquality/oilandgas/actions.html.
35
U.S. Environmental Protection Agency, "Oil and Natural Gas Sector: Reconsideration of Certain Provisions of New
Source Performance Standards," 78 Federal Register 58416-58448, September 23, 2013.
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products, and clay ceramics in 2003, but the standards were vacated by the D.C. Circuit Court of
Appeals in 2007. The agency has not taken action since that time, and was sued by the Sierra
Club for its failure to act. Under a consent decree, the agency has agreed to sign proposed
standards to replace the vacated rule by February 6, 2014, and to sign a final rule for
promulgation by December 18, 2014. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
Clean Water Act
7. Construction Site Effluent Limitations Guidelines. On December 1, 2009, EPA promulgated
regulations under the Clean Water Act (CWA), called effluent limitations guidelines (ELGs), to
limit pollution from stormwater runoff at construction sites.36 The rule, called the Construction
and Development, or C&D, 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 nationwide 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 C&D 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.
In November 2010, EPA promulgated a direct final rule to stay the effectiveness of the numeric
turbidity limit in the 2009 rule; other portions of the rule remain in effect.37 To resolve industry
challenges to the 2009 rule, on April 1, 2013, EPA proposed modifications of the 2009 rule,
including withdrawal of the numeric turbidity effluent limitations in the 2009 rule, which had
been controversial, and changes specific to the non-numeric portions of the rule. If more data on
numeric discharge standards for construction sites become available, EPA could initiate a new
rulemaking in the future.38 For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
8. “Post-Construction” 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
36
U.S. Environmental Protection Agency, “Effluent Limitation Guidelines for the Construction and Development Point
Source Category,” 74 Federal Register 62996-63058, December 1, 2009.
37
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.
38
U.S. Environmental Protection Agency, “Effluent Limitations Guidelines and Standards for the Construction and
Development Point Source Category,” 78 Federal Register 19434-19442, April 1, 2013.
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discharges from new development and redevelopment, which currently are not regulated. The rule
is expected to focus on stormwater discharges from developed or post-construction sites such as
subdivisions, roadways, industrial facilities and commercial buildings, or shopping centers. Under
a consent agreement with environmental groups, EPA was expected to propose a rule by June 10,
2013, and to issue a final rule by December 10, 2014. However, EPA missed the June 10 deadline,
and a new date for proposal of the rule has not been announced.39 For additional information,
contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
9. Revised Cooling Water Intake Rule. EPA has proposed a CWA rule to protect fish from
entrainment by cooling water intake structures at existing power 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.40 The proposal also 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.41 The rule combines cooling water intake
rules that apply to approximately 1,150 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, establishing deadlines for the agency to propose and
finalize a revised cooling water intake rule. EPA proposed the rule on March 28, 2011. Even
before release, the proposed rule was highly controversial. Many in industry feared, while
environmental groups 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. In addition, in June 2012, EPA announced that it is
considering options for revising portions of the proposed rule.42 In November 2013, EPA and the
environmental litigants agreed to extend the deadline for issuing a final rule until January 14,
2014, in part to provide time for the agency to consult with federal wildlife agencies under
provisions of the Endangered Species Act. For additional information, contact Claudia Copeland
(7-7227, ccopeland@crs.loc.gov).
10. Revised Steam Electric Effluent Limitations Guidelines. Under authority of CWA Section
304, EPA establishes national technology-based regulations, called effluent limitations guidelines
(ELGs), to reduce pollutant discharges from industries directly to waters of the United States and
indirectly to municipal wastewater treatment plants based on Best Available Technology. These
requirements are incorporated into discharge permits issued by EPA and states. The current steam
electric power plant rules43 apply to about 1,200 nuclear- and fossil-fueled steam electric power
plants nationwide, 500 of which are coal-fired. In a 2009 study, EPA found that these regulations,
39
For additional information, see CRS Report 97-290, Stormwater Permits: Status of EPA’s Regulatory Program, by
Claudia Copeland
40
40 CFR §125.90 and 40 CFR §125.130.
41
Entergy Corp. v. Riverkeeper Inc., 129 S. Ct. 1498 (2009).
42
The rule was published in the Federal Register on April 20, 2011. 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.
43
40 CFR §423.10.
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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. On April 19, EPA proposed a revised power plant ELG, under
a schedule in a consent decree with environmental litigants.44 A final rule is due by May 14, 2014.
The proposed rule presents four “preferred alternatives” for strengthening controls on wastewater
discharges from steam electric power plants that would cut annual pollutant discharges by up to
2.6 billion pounds and cut water use by 50 billion to 103 billion gallons per year. The four options
are based on varying levels of treatment for seven different waste streams generated by the plants
and differ in the stringency of the treatment controls to be imposed. The rulemaking addresses
wastewater discharges from coal ash storage ponds and flue gas desulfurization (FGD) air
pollution controls, as well as other power plant waste streams.45 The estimated annual compliance
cost of the rule would be between $168 million and $948 million. For additional information,
contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
11. “Waters of the United States” Rulemaking. 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 could impair 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. In April 2011, 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 proposed guidance, federal protection of
water quality would apply to more waters than currently are considered jurisdictional—a
conclusion that pleased some and alarmed others. Final revised guidance was sent to OMB in
February 2012, but it was not released. In September 2013, EPA and the Army Corps withdrew
44
The proposed rule was published in the Federal Register nearly two months later. U.S. Environmental Protection
Agency, "Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source
Category; Proposed Rule," 78 Federal Register 34432-34543, June 7, 2013. For information, see CRS Report R43169,
Regulation of Power Plant Wastewater Discharges: Summary of EPA’s Proposed Rule, by Claudia Copeland.
45
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.”
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the guidance document from OMB review and instead submitted a draft rule that would clarify
which waters are subject to CWA jurisdiction, consistent with the Supreme Court’s rulings and
current scientific information. It is not known when the draft rule will be proposed.46 For
additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
12. 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 improve regulation and strengthen environmental reviews of
permit requirements under the CWA and the Surface Mining Control and Reclamation Act
(SMCRA). Viewed broadly, the Administration’s combined actions on mountaintop mining
displease both industry and environmental advocates. The additional scrutiny of permits and more
stringent requirements have angered the coal industry and many of its supporters. At the same
time, while environmental groups support EPA’s steps to restrict the practice, many favor tougher
requirements or even total rejection of mountaintop mining in Appalachia. Many of the actions
have been highly controversial in Congress.
EPA is a key participant in several of the actions. In 2009 EPA and the Corps began conducting
detailed evaluations of 79 pending CWA permit applications for surface mining activities in order
to limit environmental impacts of the proposed activities under a process called Enhanced
Coordination Procedures (ECP). Coal industry groups and coal state officials contended that the
ECP process resulted in costly delay in issuance of permits. They challenged the process in
federal court, and in October 2011, the court struck down the ECP as an unlawful transfer of legal
authority from the Corps to EPA. The agencies are continuing to review permit applications for
surface coal mining projects in Appalachia under existing rules, but not the vacated ECP. In July
2012, the same federal court invalidated a 2011 EPA guidance document intended to help assess a
mine’s water quality impacts, ruling that EPA had overstepped its statutory authority. The
government has appealed both of these rulings.
In June 2010, the Army Corps suspended the use of a particular CWA general permit for surface
coal mining activities in Appalachia. In February 2012, the Corps reissued all of its CWA general
permits, including one (nationwide permit 21) to replace the suspended permit with a permit
containing more stringent CWA rules applicable to these coal mining operations.47
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
that affects surface coal mining operations, called the stream buffer zone rule, which was
promulgated in December 2008.48 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
46
For additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA):
Rapanos and Beyond, by Robert Meltz and Claudia Copeland.
47
For information see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits Program: Issues and
Regulatory Developments, by Claudia Copeland.
48
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.
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concerning surface coal mining in Appalachia. Since then, OSM officials have been working on
developing a new rule and an accompanying draft environmental impact statement (EIS), which
are expected to be proposed in 2014. The revised stream buffer rule, when promulgated, is
expected to apply nationwide, not just in Appalachia. Potential changes to the 2008 rule have
drawn controversy and criticism. In the 112th Congress, the House passed H.R. 3409, to prevent
the Secretary of the Interior from proposing or issuing regulations under SMCRA prior to
December 31, 2013, that would designate areas as “unsuitable” for surface coal mining, adversely
affect coal mine employment, or reduce the size of the coal market. Similar legislation has been
introduced in the 113th Congress (H.R. 1829/S. 861). For additional information, contact Claudia
Copeland (7-7227, ccopeland@crs.loc.gov).
Toxic Substances Control Act (TSCA)
13. Lead: Renovation, Repair, and Painting in Certain Public and Commercial Buildings
Rule. 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).49 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; two rules
have been promulgated (see the Appendix), and a third is under development.
In May 2010, EPA published an advanced notice of proposed rulemaking for a third rule
responding to the settlement agreement. It addresses renovations in public and commercial
buildings that are not child-occupied.50 On Dec. 31, 2012, EPA published a notice in the Federal
Register stating:
EPA is in the process of determining whether these activities [renovation, repair, and
painting of public and commercial buildings] create lead-based paint hazards, and, for those
that do, developing certification, training, and work practice requirements as directed by the
Toxic Substances Control Act (TSCA). This document opens a comment period to allow for
additional data and other information to be submitted by the public and interested
stakeholders. This document also provides advance notice of EPA's plan to hold a public
meeting on June 26, 2013.51
The comment period for this phase of rulemaking was scheduled to end April 1, 2013, but was
extended to July 12, 2013.52 In the 113th Congress, H.R. 2093/S. 484 would amend provisions of
49
For a complete history of this rule, see EPA’s website “Lead Renovation, Repair, and Painting Program Rules” at
http://www2.epa.gov/lead/lead-renovation-repair-and-painting-program-rules.
50
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.
51
U.S. Environmental Protection Agency, “Meetings: Lead; Renovation, Repair, and Painting Program for Public and
Commercial Buildings,” 77 Federal Register 76996, Dec. 31, 2012.
52
EPA, Lead; Renovation, Repair, and Painting Program for Public and Commercial Buildings,
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-0173-0162.
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TSCA to prohibit EPA from expanding its renovation requirements to public and commercial
buildings. For additional information, contact Jerry Yen (7-9113, jyen@crs.loc.gov).
Solid Waste/Underground Storage Tanks (RCRA)
14. Coal Combustion Waste. In 2008, coal-fired power plants accounted for almost half of U.S.
electric power, resulting in approximately 136 million 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.53 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. However, on April 5, 2012, a coalition of
environmental groups filed suit to compel EPA to finalize its proposed rulemaking.54 For
additional information, contact Linda Luther (7-6852, lluther@crs.loc.gov).
15. Underground Storage Tanks. In November 2011, EPA proposed revisions to the agency’s
1988 Underground Storage Tank (UST) technical regulations, financial responsibility
requirements, and state program approval regulations promulgated under Subtitle I of the Solid
Waste Disposal Act (SWDA).55 The proposed revisions address changes made in the Energy
Policy Act of 2005 (P.L. 109-58)56 and also update UST leak prevention and detection
technologies and requirements.57 The revisions are intended to improve leak prevention and
53
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.
54
Appalachian Voices et al. v. Lisa P. Jackson, Case No. 1:12-cv-00523 (D.D.C.), April 5, 2012.
55
Environmental Protection Agency, “Revising Underground Storage Tank Regulations-Revisions to Existing
Requirements for Secondary Containment and Operator Training,” 76 Federal Register 71708, November 18, 2011.
The Solid Waste Disposal Act (SWDA) is commonly referred to as the Resource Conversation and Recovery Act.
56
P.L. 109-58, Title XV, Subtitle B, comprises the Underground Storage Tank Compliance Act (USTCA) which
broadly amended the UST leak prevention and provisions of SWDA Subtitle I (42 U.S.C. §6991-6991m).
57
Technical regulations are located at 40 C.F.R. §280. EPA also proposes to revise state program approval
requirements in 40 C.F.R. §281 to incorporate changes to the technical regulations.
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EPA Regulations: Too Much, Too Little, or On Track?
detection of releases from USTs, which EPA and states report as a leading source of groundwater
contamination. Proposed revisions to UST technical regulations include (1) secondary
containment requirements for new and replaced tanks and piping, (2) training requirements for
UST owners and operators, (3) new operation and maintenance requirements, (4) new release
prevention and detection technologies, and (5) updated codes of practice.
The Environmental Protection Act of 2005 (EPAct) amended the SWDA to require states that
receive federal funding under Subtitle I to meet certain requirements (such as operator training
and secondary containment requirements). The proposed rule would expand on EPAct and further
apply these requirements in Indian country and in states that do not receive Subtitle I funds. EPA’s
stated goal is to make UST requirements similar in all states and in Indian Country. Additionally,
the proposed rule would expand the scope of certain requirements beyond those established in
law. For example, EPAct requires states receiving Subtitle I money to require secondary
containment for new or replaced tanks if they are installed within 1,000 feet of a community
water system or drinking water well. EPA proposes to require secondary containment for new or
replaced tanks in all locations.
Among the updates to the 1988 UST rules, the proposal would modify the requirement that UST
systems must be compatible with stored substances, by adding options for owners and operators
to demonstrate that UST systems are compatible with fuel containing more than 10% ethanol
(E10) or 20% biodiesel (B20).58 The public comment period for the proposal closed on April 16,
2012. EPA plans to issue a final rule in the spring of 2014. For additional information, contact
Mary Tiemann (7-5937, mtiemann@crs.loc.gov).
58
A comparison of the key differences between the 1988 rule and the proposed rule is available at http://www.epa.gov/
oust/fedlaws/Crosswalk.pdf.
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In Table 2, below, we identify major or controversial rules still under development at EPA that
were discussed in the previous section. The table includes rules not yet proposed, rules that have
been proposed but not yet promulgated, and in several cases rules already promulgated but now
being reconsidered by the agency. The Appendix to this report, describing economically
significant or controversial rules already promulgated by the agency, follows the table. While
these promulgated rules are generally thought to be in final form, many are still being challenged
by various stakeholders in court.
Table 2. Major Rules and Modifications Under Development at EPA
Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
1.
Clean Air Act
Carbon Pollution
Standards for
New and Existing
Power Plants
EPA re-proposed
standards Sept. 20,
2013. The Clean Air
Act requires
promulgation one
year after proposal.
On June 25, 2013,
the President
directed EPA to
propose emission
guidelines for
existing power
plants by June 2014
and finalize them by
June 2015.
EPA was 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
one-third of all
U.S. GHG
emissions.
Primarily coal-fired
electric generating
units, which generate
more than one-third of
the nation’s electricity.
2.
Clean Air Act
Expanded
Renewable Fuel
Standard (RFS2)
Standards for use of
cellulosic biofuels in
2013 (revising
downward the
amount that would
otherwise be
required by statute)
were proposed
February 7, 2013,
and the 2012
requirement was
revised to zero.
Decisions
required under
the Energy
Independence and
Security Act of
2007.
Petroleum refiners,
biofuel producers.
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Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
3.
Clean Air Act
Tier 3 Motor
Vehicle Emission
and Fuel
Standards
EPA proposed
standards May 21,
2013. Promulgation
is expected by
February 2014.
None
New car and light
truck manufacturers;
petroleum refiners.
4.
Clean Air Act
National Ambient
Air Quality
Standard for
Ozone
Proposed January
19, 2010; withdrawn
September 2, 2011.
EPA is near
completion of its
next review, with
proposal of any
changes in the
standards expected
in 2014, and
promulgation in
2015.
Clean Air Act
required review
of the 2008
standards by
March 2013.
Recent ozone levels in
the vast majority of the
675 counties with
monitors would have
violated the proposed
2010 standard;
implementation of the
proposed standard
could have led to
widespread new
emission controls at a
projected cost of $19
billion to $25 billion
annually in 2020, with
comparable levels of
benefits, according to
EPA.
5.
Clean Air Act
Oil and Natural
Gas Air Pollution
Standards
Promulgated August
16, 2012. Updated
requirements for
storage tanks were
proposed April 12,
2013.
EPA acted under
a consent
agreement signed
in February 2010
to revise existing
NSPS and
hazardous air
pollutant rules.
About 11,000 new
natural gas wells will be
affected annually. The
standards are the first
national air emission
standards for
hydraulically fractured
wells.
6.
Clean Air Act
Brick and Clay
Product MACT
EPA has agreed to
sign proposed
standards by
February 6, 2014,,
and final standards
by December 18,
2014.
D.C. Circuit
Court of Appeals
vacated and
remanded
standards for this
category of
sources in 2007.
EPA reached a
consent
agreement in
November 2012
on a schedule for
replacement
standards.
Brick and clay product
manufacturers.
7.
Clean Water Act
Construction Site
Effluent
Limitations
Guidelines
Rule was
promulgated
December 1, 2009.
A portion of the
rule was stayed for
reconsideration.
EPA proposed
amendments to the
2009 rule in April
2013.
Federal court
ordered EPA to
issue the final rule
by December 1,
2009.
Affects about 82,000
firms involved in
residential, commercial,
highways, street, and
bridge construction.
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Item
No.
Statutory
Authority
Rule
Status
Court or
Legislative
Requirement?
Affected Entities
8.
Clean Water Act
“PostConstruction”
Stormwater Rule
EPA was expected
to propose a rule in
June 2013 and issue
a final rule in
December 2014.
The agency missed
the date for
proposal; a new date
has not been
announced.
May 2010 consent
decree, as
amended.
Unknown at this time.
9.
Clean Water Act
Revised Cooling
Water Intake
Rule
EPA proposed
regulations March
28, 2011. Final rule
is due by January 14,
2014.
EPA rules issued
in 2004 were
remanded by
order of a federal
court.
Proposal applies to
approximately 1,150
existing power plants
and certain other
manufacturing facilities.
10.
Clean Water Act
Revised Steam
Electric Effluent
Limitations
Guidelines
EPA proposed a rule
on April 19, 2013.
Final rule is due by
May 22, 2014.
Consent decree.
Proposal applies to
existing and new steam
electric power plants.
11.
Clean Water Act
‘Waters of the
United States’
Rulemaking
Draft rule developed
by EPA and Army
Corps was sent to
OMB on September
17, 2013.
None
Potentially affects a
wide range of entities
and activities subject to
CWA requirements,
including permits.
12.
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 agencies
to strengthen
environmental
reviews and revise
regulations.
None
Surface coal mining
operations in the
Appalachian region.
13.
Toxic Substances
Control Act
Lead Renovation,
Repair, and
Painting
An advanced notice
of proposed
rulemaking for work
in certain public and
commercial buildings
is being revised as
announced Dec. 31,
2012, and is
expected to be
finalized in 2015.
August 2009
settlement
agreement set
numerous
deadlines for
revisions of a
2008 lead rule.
Workers and firms
that remodel, repair,
or paint homes and
some commercial
buildings.
14.
Resource
Conservation
and Recovery
Act (RCRA)
Coal Combustion
Waste
Proposed June 21,
2010.
None
Coal-fired electric
power plants.
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Item
No.
15.
Statutory
Authority
Resource
Conservation
and Recovery
Act (RCRA)
Rule
Underground
Storage Tanks
Status
Proposed
November 18, 2011.
Court or
Legislative
Requirement?
Affected Entities
Proposal
addresses
provisions of the
Energy Policy Act
of 2005 (P.L. 10958).
States and owners and
operators of
underground storage
tanks containing either
petroleum or
hazardous chemicals.
Source: Compiled by CRS.
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Appendix. Major or Controversial Rules
Promulgated Since 2009
Climate Change
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.59 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).60 (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, 2011. The first data submitted under the
rule were released January 11, 2012. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
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.61
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, and on June 26, 2012, the court upheld the regulations. The court’s decision applied
to 84 cases filed by a variety of industry groups and states (Coalition for Responsible Regulation
v. EPA). For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov) or
Rob Meltz (7-7891, rmeltz@crs.loc.gov).
Light Duty Motor Vehicle Greenhouse Gas Emission Standards, Model Years 2012-2016. 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
59
U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases; Final Rule,” 74 Federal
Register 56260, October 30, 2009.
60
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.”
61
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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pickup trucks.62 NHTSA is required by the Energy Independence and Security Act of 2007
(EISA, P.L. 110-140) to promulgate CAFE 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 EPA regulations require a reduction in emissions to an estimated
combined emission level of 250 grams of CO2 per mile by model year 2016, about a 21%
reduction in emissions when fully implemented. The Administration estimates that complying
with the regulations 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 are
being 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. This rule was also upheld by the D.C. Circuit in
the June 26, 2012 Coalition for Responsible Regulation decision. For additional information,
contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
Light Duty Motor Vehicle Greenhouse Gas Emission Standards, Model Years 2017-2025.
Using the same authority described in Item 3 above, EPA and NHTSA promulgated joint
GHG/fuel economy rules for 2017-2025 model year vehicles, on October 15, 2012. 63 Under these
standards, GHG emissions from new cars and light trucks will be reduced about 50% by 2025
compared to 2010 levels, to an expected fleet average of 163 grams per mile; average fuel
economy will rise to nearly 50 miles per gallon. The agencies estimated that the new technology
to comply with the standards will cost roughly $1,800 per vehicle in 2025, although lifetime fuel
savings would total roughly $5,700 to $7,400. For additional information, contact Brent
Yacobucci (7-9662, byacobucci@crs.loc.gov).
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.64 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: from 2011 through 2016, the nation’s largest GHG emitters, including power plants,
refineries, cement production facilities, and about two dozen other categories of sources (an
estimated 17,000 facilities annually) will be the only sources required to obtain permits. Of these,
most will face only an administrative requirement to provide an estimate of their GHG emissions,
but EPA estimated that 1,600 new or modified facilities will need to address whether they have
the best available control technology for limiting emissions.65 Smaller businesses, almost all
farms, and large residential structures (about 6 million sources in all these categories), which
62
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. Information on benefits and costs are summarized in an April 2010 EPA Fact Sheet, at
http://www.epa.gov/oms/climate/regulations/420f10014.pdf.
63
U.S. Environmental Protection Agency, U.S. Department of Transportation, “2017 and Later Model Year Light-Duty
Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards; Final Rule,” 77 Federal Register
62624, October 15, 2012. A link to the rule and other information, including a Fact Sheet, is available at
http://www.epa.gov/otaq/climate/regs-light-duty.htm#new1.
64
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.
65
EPA reported, however, that in the first 11 months of the program, only 68 permit applications were received. See
U.S. EPA, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3, GHG Plantwide
Applicability Limitations and GHG Synthetic Minor Limitations, Proposed Rule, 77 Federal Register 14233, March 8,
2012.
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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 are shielded from permitting requirements
by this rule. This rule was also challenged in Coalition for Responsible Regulation. The D.C.
Circuit dismissed the challenge June 26, 2012. For additional information, contact Jim McCarthy
(7-7225, jmccarthy@crs.loc.gov).
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, 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 determine what technologies qualify as BACT on a caseby-case basis, using generic guidance issued by EPA on November 10, 2010.66 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, 2011, was the addition of GHGs to
the 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 are 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 for GHG emissions, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Medium- and Heavy-Duty Vehicle Greenhouse Gas Rule. On September 15, 2011, EPA and
the National Highway Traffic Safety Administration (NHTSA) promulgated integrated GHG
emission standards and fuel economy standards for medium- and heavy-duty vehicles.67 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 standards will be
phased in between 2014 and 2018. When fully implemented, they 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 $8.1 billion.
EPA projects benefits of $57 billion over the trucks’ lifetimes, including $50 billion in fuel
66
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.
67
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; Final Rules,” 76 Federal Register
57106, September 15, 2011.
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savings. In the President’s June 25, 2013, Climate Action Plan, he committed to a second round of
fuel efficiency and GHG emission standards for post-2018 heavy duty vehicles. For additional
information, contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
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. Under the settlement, the agency 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. As of this writing (July 2013), the
standards have not been proposed. Action on the standards was not mentioned in the President’s
June 2013 Climate Action Plan. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
Ambient Air Quality Standards
Particulate Matter (including “Farm Dust”) NAAQS. EPA considers particulate matter (PM)
to be among the most serious air pollutants, responsible for tens of thousands of premature deaths
annually. 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.
EPA completed a review of the PM NAAQS in 2006. The agency is required by the Clean Air Act
to review NAAQS at five-year intervals, so another review was due in 2011. As the review
process was getting underway, in February 2009, the D.C. Circuit Court of Appeals remanded the
2006 standard for PM2.5 to EPA, saying that the standard was “contrary to law and unsupported by
adequately reasoned decisionmaking.”68 As a result, EPA combined the statutory five-year review
of the standard and its response to the D.C. Circuit decision, completing a review of the PM
standard that served both purposes in January 2013.69 The review left the standard for coarse
particles unchanged, as well as the standard for 24-hour exposures to PM2.5. But it lowered the
standard for annual exposures to PM2.5, as suggested by the agency’s outside scientific advisers,
from 15 micrograms per cubic meter to 12.
Although this appears to be a significant strengthening of a standard that potentially affects a
wide array of mobile and stationary sources, EPA projects the incremental cost of the revision at a
relatively modest $53 million to $350 million annually. The cost of compliance with the PM
NAAQS is moderated by the fact that other EPA standards (for various emission sources) are
reducing exposures to PM2.5 even without a strengthening of the ambient standard. Annual
benefits of the more stringent NAAQS were estimated to range from $4.0 billion to $9.1 billion.
In the 112th Congress, attention to PM issues focused on the larger, coarse particles, PM10, even
though EPA did not propose to change them. Members of the House and Senators discussed the
68
American Farm Bureau Fed'n v. EPA, 559 F.3d 512 (D.C. Cir. 2009).
U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Particulate Matter; Final
Rule,” 78 Federal Register 3086, January 15, 2013. A link to the standards and other supporting materials can be found
at http://www.epa.gov/pm/actions.html.
69
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need to prevent a supposed EPA plan to use the revision of the PM10 standard to impose controls
on “farm dust.” The House passed legislation to prevent EPA from tightening standards for PM10
for one year and to permanently limit EPA’s authority to regulate dust in rural areas. EPA stated
early in the PM review process that it did not intend to change the PM10 standard, and the final
revision made no change. For additional information, contact Rob Esworthy (7-7236,
resworthy@crs.loc.gov).
Sulfur Dioxide NAAQS. Three other NAAQS reviews (for sulfur dioxide,70 nitrogen dioxide,71
and carbon monoxide) were completed in 2010 and 2011. Of these, only the sulfur dioxide (SO2)
NAAQS is considered an economically significant rule.72 EPA estimated the cost of the more
stringent SO2 NAAQS at $1.5 billion annually, with benefits 9-24 times that amount. For
additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Electric Generating Units
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 remanded to the agency by
the D.C. Circuit Court of Appeals in 2008. EPA promulgated a replacement, the Cross-State Air
Pollution Rule, August 8, 2011.73 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 coal-fired 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 was estimated at $800 million annually in
2014, on top of $1.6 billion already being spent to comply with CAIR. 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. Numerous parties petitioned the D.C. Circuit for review of the CrossState rule, and the court stayed its implementation pending the completion of the court’s
proceedings. On August 21, 2012, the court vacated the standards and remanded them to EPA. In
June 2013, the Supreme Court agreed to review the D.C. Circuit decision. Because of the earlier
CAIR requirements, which remain in effect pending their replacement and, more recently,
because power companies have replaced substantial amounts of coal-fired generation with
cheaper (and cleaner) natural-gas-fired units, electric generators had already achieved more than
two-thirds of the pollution reductions necessary to comply with the 2014 standards by 2012. For
additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
70
U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final
Rule,” 75 Federal Register 35520, June 22, 2010.
71
U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide;
Final Rule,” 75 Federal Register 6473, February 9, 2010.
72
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.
73
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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Mercury and Air Toxics Standards / 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 and promulgate Maximum Achievable Control Technology
(MACT) standards by the end of 2011. EPA states that the standards for existing units,
promulgated February 16, 2012,74 can be met by 56% of coal- and oil-fired electric generating
units using pollution control equipment already installed; the other 44% would be required to
install technology that will reduce uncontrolled mercury and acid gas emissions by about 90%, at
an annual cost of $9.6 billion. Standards for new facilities are more stringent, and many
(including the industry that manufactures pollution control and monitoring equipment), doubted
whether compliance with the mercury portion of these standards could be measured. In response
to industry petitions, EPA reconsidered the mercury limit for new facilities, and announced
changes to the standards for new facilities on March 29, 2013.
EPA estimates that the annual benefits of the Utility MACT, including the avoidance of up to
11,000 premature deaths annually, will be between $37 billion and $90 billion. Existing power
plants will have until 2015, 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%. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
Boilers and Incinerators
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.75 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 initiated a reconsideration after it released the final rule, and it promulgated
changes to the rule on January 31, 2013.76 In addition to adjusting the rule’s emission standards,
the January 2013 rule reset the clock for compliance, effectively giving industry almost two
additional years to install control equipment.
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
74
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants from Coal and
Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility,
Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units,” 77
Federal Register 9304, February 16, 2012.
75
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.
76
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and Institutional Boilers; Final Rule; Notice of Final Action on Reconsideration,” 78
Federal Register 7138, January 31, 2013.
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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 January
2013 rule will set more stringent standards. It will affect about 14,000 boilers, according to the
agency, with annual costs estimated at $1.2 billion and benefits of $25 billion to $67 billion
annually, including the avoidance of 3,100 to 7,900 premature deaths.
EPA also promulgated what are called “area source” standards for smaller boilers at the same time
as the MACT.77 The area source standards would affect 183,000 boilers, most of which would
only be required to perform a tune-up every two to five years to comply with the regulations. EPA
estimated the net cost of the area source rule to be $490 million annually, with partial benefits
ranging from $210 million to $520 million annually. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
Commercial and Industrial Solid Waste Incinerator (CISWI) Standards. A third regulation
promulgated and reconsidered at the same time as the boiler MACT and area source boiler rules
sets standards for emissions from commercial and industrial solid waste incinerators.78 These
standards are related to the D.C. Circuit’s remand of the boiler rules in 2007; they also faced a
judicial deadline of February 21, 2011, and after being promulgated, were also reconsidered in
early 2013. As reconsidered, the rules would expand the number of existing facilities subject to
the more stringent CISWI standards from 20 to 106, with annual costs of $271 million, according
to EPA, and benefits of $380 million-$1 billion annually. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
Other Clean Air Act Rules
Ethanol Blend Wall Waiver. Section 211(f) of the Clean Air Act effectively limits the amount of
oxygen in gasoline unless EPA issues a waiver. Since ethanol contains oxygen, an increase in the
ethanol content of gasoline offered for sale can only occur if EPA issues such a waiver. EPA may
issue a waiver if the agency determines that the fuel or fuel additive will not cause or contribute
to the failure of any emission control device or system used by vehicle manufacturers to achieve
compliance with emission standards under the act.
On March 6, 2009, Growth Energy (on behalf of 52 U.S. ethanol producers) applied to EPA for a
waiver from the then-current regulation limiting the ethanol content in gasoline to a maximum of
10% (E10). The application requested an increase in the maximum concentration to 15% (E15). A
complete 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.
77
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and Institutional Boilers; Final Rule,” 76 Federal Register 15554, March 21, 2011.
Final action on reconsideration appeared in the February 1, 2013, Federal Register (78 FR 7488).
78
The 2011 standards were: 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;
Final Rule,” 76 Federal Register 15704, March 21, 2011. The notice of final action on reconsideration is at 78 Federal
Register 9112, February 7, 2013.
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On November 4, 2010, EPA granted a partial waiver allowing the use of E15 in Model Year (MY)
2007 vehicles and newer.79 The agency delayed a decision on MY2001-2006 vehicles until the
Department of Energy completed testing of those vehicles. On January 21, 2011, EPA announced
that the waiver would be expanded to include MY2001-2006 vehicles.80 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 engine manufacturers, although that case was dismissed because
none of the petitioners had been injured in fact.81 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.
Because of various factors, expansion of E15 supply has been slow. As of late March 2013, only
13 stations in three states (Iowa, Kansas, and Nebraska) had begun selling E15 for use in
conventional vehicles. Further, only three automakers have affirmed that E15 may be used in their
vehicles without voiding warranties.82
In the first quarter of 2013, prices for RFS blending credits (Renewable Identification Numbers,
or RINs) increased dramatically (from roughly $0.08 per gallon in early January to over $1.00 per
gallon in mid-March). The causes of this increase are unclear, but may be driven in part by
concerns from fuel suppliers that the industry is approaching the blend wall and that RINs may be
in short supply. After the mid-March high, RIN prices dropped somewhat, to roughly $0.70 per
gallon in early April. For additional information, contact Brent Yacobucci (7-9662,
byacobucci@crs.loc.gov).
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 (MACT) standards for hazardous air pollutants from both
existing and new cement kilns.83 When fully implemented in late 2013, the standards would have
required a 92% reduction in emissions of both particulate matter and mercury and a 97%
79
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.
80
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,” 76
Federal Register 4662, January 26, 2011.
81
Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169 (D.C. Cir. 2012).
82
For example, General Motors has approved the use of E15 in its model year (MY) 2012 and later vehicles, while
Ford has approved E15 for MY2013 and later vehicles. Porsche approves the use of E15 in MY2001 and later cars.
Robert L. Darbelnet, President and CEO, American Automobile Association, “Suspend Sale of E15 Gasoline,” The
Hill, December 13, 2012.
83
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.
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reduction in emissions of acid gases, according to EPA, as well as controlling other 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 estimated that it would cost the industry $350 million annually to comply with the
2010 standards, but that benefits (including the avoidance of 960 to 2,500 premature deaths in
people with heart disease) would be worth $6.7 billion to $18 billion annually. The trade
association representing the industry said the standards would cause some facilities to close. On
December 9, 2011, the D.C. Circuit Court of Appeals remanded the 2010 standards to EPA for the
agency to reconsider emission standards for kilns that use solid waste as fuel. The court did not
stay implementation of the 2010 standards, but EPA, in proposing changes to the particulate
portion of the standards on June 25, 2012, announced its intention to give the industry an
additional two years to comply, with a third year available if needed. The changes are estimated
to reduce industry costs by $52 million annually, compared to the 2010 rule. EPA finalized these
changes, February 12, 2013.84
Further regulation of this industry, which is the third highest stationary U.S. source of carbon
dioxide emissions, has been under consideration: when EPA promulgated the rule in September
2010, it stated in the rule’s preamble to the rule that it is “working towards a proposal for GHG
standards” for these plants.85 It is uncertain when such a rule might be proposed: action on these
standards was not mentioned in the President’s June 2013 Climate Action Plan. For additional
information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Stationary Internal Combustion Engines. EPA set standards for both compression-ignition86
(generally diesel) and spark ignition (generally gasoline) stationary engines87 in 2010. The agency
subsequently amended the rules on January 30, 2013.88 The regulations would affect 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 performing oil changes and inspections. EPA estimated that the health benefits of the two
rules will be between $1.45 billion and $3.5 billion annually in 2013. Annualized costs for the
rules were estimated to be $626 million in 2013. EPA states that the 2013 amendments will
reduce the annualized costs by $139 million (to $487 million). The amendments were issued in
response to a suit by the Engine Manufacturers Association. The most controversial of the
amendments allows backup generators to operate for up to 100 hours per year during emergency
or peak power use periods without being subject to emission limits, although they will need to use
84
78 Federal Register 10006, February 12, 2013.
Ibid., p. 54997.
86
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.
87
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.
88
78 Federal Register 6674, January 30, 2013.
85
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low sulfur fuel beginning in 2015. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
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 engines89 and it proposed the
establishment of Emission Control Areas (ECAs) extending 200 nautical miles off most U.S.
shores.90 In the ECAs, which received final approval in March 2010, both U.S. and foreign ships
were required to use low sulfur fuel, beginning in 2012. 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 ECAs and the new standards were supported by both
industry and environmental groups, and have been extended to cover the U.S. Caribbean,
beginning in 2014. In July 2012, however, controversy arose over the requirement that ships in
Alaskan waters use low sulfur fuel, with the state of Alaska filing suit to block implementation of
the fuel requirement. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
Flares and Process Heaters at Petroleum Refineries. On September 12, 2012, EPA
promulgated amendments to New Source Performance Standards for flares and process heaters at
petroleum refineries.91 The amendments are the result of the agency’s reconsideration of
standards it promulgated on June 24, 2008. The agency estimates that the reconsidered rules will
have capital costs of $460 million, but will result in savings to the industry of $79 million per
year, while resulting in monetized benefits of $240 million to $580 million annually, principally
from the avoided health impacts caused by reduced emissions of sulfur dioxide and nitrogen
oxides. For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Mercury Cell Chlor-Alkali MACT Standards. In December 2003, EPA promulgated MACT
standards for emissions of hazardous air pollutants from plants that manufacture chlorine using
the mercury cell chlor-alkali process. This is an old technology that has been phased out by 95%
of the chlorine industry. At the time of the rule’s promulgation, there were 12 plants still using the
technology; but as of late 2012, there were only four, two of which were expected to close by
early 2013.
EPA was asked to reconsider the 2003 standards by the Natural Resources Defense Council
(NRDC), and it agreed to do so. NRDC argues that EPA should have required the remaining
chlor-alkali plants to switch to newer technology that does not use mercury. After developing new
data on the costs of converting plants to non-mercury technology, EPA proposed revised
standards on June 11, 2008. The revised standards would not have required the technology
switch, but would have required more stringent work practice requirements.
89
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.
90
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.
91
U.S. Environmental Protection Agency, “Standards of Performance for Petroleum Refineries; Performance Standards
for Petroleum Refineries for Which Construction, Reconstruction, or Modification Began After May 14, 2007,” 77
Federal Register, 56422, September 12, 2012.
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As a result of comments on the June 2008 proposal, the agency proposed a supplement to that
proposal on March 14, 2011.92 The 2011 supplement contains two options: the first would require
the elimination of mercury emissions, effectively requiring conversion to non-mercury-cell
technology. The second option would require a strengthening of work practices (as proposed in
2008) to reduce (but not eliminate) emissions. EPA estimated the annual compliance costs of
Option 1 at $13 million, with benefits ranging from $21 million to $43 million, but it conceded
that there is still uncertainty regarding numerous facets of the cost analysis, and it requested
further comments. Option 2 was estimated to have annual costs of $25,000, with no monetized
benefits. For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Clean Water Act
Pesticide Application General Permit. EPA has developed a Clean Water Act (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 was issued on October 31,
2011, 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.93 The estimated universe of affected activities is
approximately 5.6 million applications annually, which are performed by 365,000 applicators, in
four use patterns: mosquito and other flying insect pest control, aquatic weed and algae control,
aquatic nuisance animal control, and forest canopy pest control. The permit requires all operators
covered by the permit to minimize pesticide discharges to waters by practices such as using the
lowest amount of pesticide product that is optimal for controlling the target pest. It also requires
operators to prepare plans to document their pest management practices. Under OMB’s criteria,
the permit is not a significant rule, but is “economically significant.”94 Meanwhile, in the 113th
Congress, legislation intended to overturn the court’s 2009 ruling by exempting aerial pesticide
application activities from clean water permit requirements has been introduced (H.R. 935, S.
175, and S. 802). The text of H.R. 935 also was included as a provision of 2013 farm bill
legislation approved by the House Agriculture Committee (H.R. 2642) on July 11, 2013. The
Senate-passed farm bill (S. 954) in the 113th Congress contains no similar provision.95 For
additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
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,
92
U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants: Mercury
Emissions from Mercury Cell Chlor-Alkali Plants; Supplemental Proposed Rule,” 76 Federal Register 13852, March
14, 2011.
93
U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination System (NPDES) General
Permit for Point Source Discharges from the Application of Pesticides; Notice of final permit,” 76 Federal Register
68750-68756, November 7, 2011.
94
“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.
95
For additional information, see CRS Report RL32884, Pesticide Use and Water Quality: Are the Laws
Complementary or in Conflict?, by Claudia Copeland.
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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
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, called the “inland
waters rule,” on December 5, 2010. 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. The rule would not establish any requirements directly applicable to regulated
entities or other sources of nutrient pollution.
The 2010 rule has not gone into effect, because, in response to criticism of the standards, EPA
delayed the effective date of the rule to allow local governments, businesses, and the state of
Florida time to review the standards and develop implementation strategies. While few dispute
the need to reduce nutrients in Florida’s waters, EPA’s 2010 rule has been controversial, involving
disputes about the data underlying the proposal, potential costs of complying with numeric
standards when they are incorporated by the state into discharge permit limitations, and disputes
over administrative flexibility. EPA has said all along that it prefers that Florida implement its
own numeric nutrient water quality criteria, and in June 2012 the state submitted revised
standards with numeric nutrient criteria. In response, EPA indicated to the state that the agency
likely would approve the standards, at which time the agency would initiate administrative action
to repeal the 2010 federal rule. EPA’s deadline for issuing the second phase of standards, for
estuaries, coastal waters, and flowing waters in the South Florida Region, also was extended
several times to allow the state to develop its own standards.
In March 2013, EPA and the state reached agreement in principle on steps that will put the state in
charge of determining numeric limits on nutrient pollution in Florida waterways. Groundwork for
the agreement was laid in November 2012 when EPA approved the state’s June 2012 submission
for lakes, rivers, streams, and some estuaries. Florida agreed to move forward with rulemaking
and legislation to complete the job of setting numeric nutrient criteria for Florida waterways. In
response to the state’s actions, EPA approved the state’s implementation plan for controlling
nutrient pollution in Florida waters and agency petitioned the federal court in Florida to allow it
to approve the state’s water quality standards, although they lack numeric criteria. If the court
agrees to amend the consent decree, EPA obligations to directly oversee the state’s nutrient
regulations would end, including issuing numeric nutrient standards under the second phase of
rulemaking.96 Environmental groups have criticized EPA’s approval of the standards that Florida
has adopted, saying that EPA’s actions are inconsistent with its 2009 determination that numeric
criteria are necessary to protect Florida’s waters. For additional information, contact Claudia
Copeland (7-7227, ccopeland@crs.loc.gov).
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 jurisdictions in the Chesapeake Bay watershed have failed to
meet deadlines to attain water quality goals for the Bay, thus triggering Clean Water Act
96
For additional information, see http://water.epa.gov/lawsregs/rulesregs/florida_index.cfm.
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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.97 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 jurisdictions 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.98 Pursuant to the schedule of steps in the TMDL,
jurisdictions are now developing specific plans called Watershed Implementation Plans (WIPs),
which outline the types of controls and best management practices that will be used to reduce
pollution in the Bay. EPA approved the first phase WIPs in December 2010, and also has
reviewed the jurisdictions’ Phase II WIPs, which provide greater detail about pollutant reductions
planned through the year 2017. The TMDL has been controversial with agricultural and other
groups that are concerned about the likely mandatory nature of many of EPA’s and states’
upcoming actions. In September 2013, a federal court upheld the TMDL, in a lawsuit filed by the
American Farm Bureau Federation that had challenged EPA’s authority to set pollution limits in
the multistate plan. For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
Airport Deicing Effluent Limitations Guidelines and New Source Performance Standards.
In April 2012, EPA promulgated regulations under the CWA to limit water pollution from aircraft
and airport runway deicing operations.99 The rule is intended to limit runoff of deicing fluid,
because it contains urea and other contaminants that contribute to low oxygen levels in streams,
which can cause fish kills, algal blooms, and contamination of surface water or groundwater. The
rule, which had been under development for several years and was proposed in 2009, is part of
ongoing EPA activities under the CWA to regulate wastewater discharges from categories of
industries through new and revised effluent limitations guidelines. EPA estimated that the final
rule will reduce the volume of deicing-related pollutants by 16.4 million pounds at a cost of $3.5
million annually. Those estimates are substantially less than the 44.6 million pounds of pollutants
estimated in the proposed rule, which was projected to cost the industry $91.3 million annually.
EPA estimates that the final rule will apply to 198 existing airports. For additional information,
contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
Oil Spill Prevention, Control, and Countermeasure Requirements, including deadline
extension for farms and exemption for milk storage. To prevent the discharge of oil from
onshore and offshore facilities, EPA issued CWA regulations for spill prevention control and
countermeasure (SPCC) plans in 1973.100 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.
97
For additional information, see CRS Report R42752, Clean Water Act and Pollutant Total Maximum Daily Loads
(TMDLs), by Claudia Copeland.
98
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.
99
U.S. Environmental Protection Agency, “Effluent Limitations Guidelines and New Source Performance Standards
for the Airport Deicing Category; Final rule,” 77 Federal Register 29168-29205, May 16, 2012.
100
38 Federal Register 34164, December 11, 1973.
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Following the passage of the Oil Pollution Act of 1990, the agency proposed substantial changes
and clarifications that were not made final until July 2002.101 However, EPA has both extended
the 2002 rule’s compliance date (on multiple occasions) and made further amendments to the
2002 rule. On one occasion, amendments offered by the Bush Administration’s EPA in 2008 were
eliminated by the Obama Administration’s EPA the following year.102
For most types of facilities subject to SPCC requirements, the deadline for complying with the
changes made in 2002 was November 10, 2011.103 However, in a November 2011 rulemaking,
EPA extended the compliance date for farms to May 10, 2013.104
Pursuant to the CWA definition of oil, the SPCC requirements apply to petroleum-based and nonpetroleum-based oil.105 In a 1975 Federal Register notice, EPA clarified that its 1973 SPCC
regulations apply to oils from animal and vegetable sources.106 EPA 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.107 However, in January 2009, EPA proposed a conditional
exemption from SPCC requirements for milk storage units.108 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.109 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).
Toxic Substances Control Act
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).110
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,
101
67 Federal Register 47041, July 17, 2002.
A November 13, 2009 rule (74 Federal Register 58784) eliminated specific exclusions/exemptions made by a
December 5, 2008 rulemaking (73 Federal Register 74236).
103
U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Rule Compliance Date Amendment,” 75 Federal Register 63093, October 14, 2010.
104
U.S. Environmental Protection Agency, “Oil Pollution Prevention: Spill Prevention, Control, and Countermeasure
Rule—Compliance Date Amendment for Farms,” 76 Federal Register 72120, November 22, 2011.
105
See CWA Section 311(a) (33 U.S.C. 1321(a)).
106
40 Federal Register 28849, July 9, 1975.
107
74 Federal Register 2461, January 15, 2009.
108
U.S. Environmental Protection Agency, “Oil Pollution Prevention: Spill Prevention, Control, and Countermeasure
Rule Requirements—Amendments,” 74 Federal Register 2461, January 15, 2009.
109
76 Federal Register 21652, April 18, 2011.
110
For a complete history of this rule, see EPA’s website “Lead Renovation, Repair, and Painting Program Rules” at
http://www2.epa.gov/lead/lead-renovation-repair-and-painting-program-rules.
102
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in August 2009, EPA signed a settlement agreement with the petitioners. The agreement set legal
deadlines for a number of EPA rulemaking actions; two rules have been promulgated; one rule
remains under development (see previous discussion of “Toxic Substances Control Act (TSCA)”).
Amendments to the rule promulgated May 6, 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 significant amounts of time there.111 The amendment also revised
recordkeeping and disclosure provisions. In 2010, Congress included a provision in P.L. 111-212,
a supplemental appropriations act, which prohibited the use of “funds made available by this Act”
to levy fines or to hold any person liable for work performed under the rule. However, P.L. 111212 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 in P.L. 111-88 to enforce the rule.112 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. In the 113th Congress, H.R.
2093/S. 484 would amend provisions of TSCA to restore the opt-out provision.
A second rule responding to the 2009 settlement agreement was proposed in May 2010. It
addressed the testing requirements after renovations are complete.113 That rule was revised and
promulgated July 15, 2011, effective October 4, 2011.114 EPA decided not to promulgate dust
wipe testing and clearance requirements as proposed. Instead it “promulgated several other
revisions to the rule, including a provision allowing a certified renovator to collect a paint chip
sample and send it to a recognized laboratory for analysis in lieu of using a lead test kit.”115 In the
113th Congress, H.R. 2093/S. 484 would amend provisions of TSCA to prohibit EPA enforcement
of the renovation rule until the Administrator has identified a test kit for lead in paint samples. For
additional information, contact Jerry Yen (7-9113, jyen@crs.loc.gov).
Solid Waste (RCRA)
Identification of Non-Hazardous Materials That Are Solid Wastes When Burned. In
conjunction with emission standards for boilers and solid waste incinerators (see discussion of
“Boilers and Incinerators” in this Appendix), in February 2011, EPA finalized regulations
intended to clarify when certain materials burned as fuel in a combustion unit would be
considered a “solid waste.”116 The definition of solid waste plays an important role in
111
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.
112
Sven-Erik Kaiser, EPA Congressional Liaison, personal communication, September 14, 2011.
113
U.S. Environmental Protection Agency, “Clearance and Clearance Testing Requirements for the Renovation,
Repair, and Painting Program: Lead; Proposed Rule,” 75 Federal Register 25038-25073, May 6, 2010.
114
U.S. Environmental Protection Agency, “Lead: Clearance and Clearance Testing Requirements for the Renovation,
Repair, and Painting Program,” Final Rule, 76 Federal Register 47918-47946, July 15, 2011.
115
EPA, “Lead; Clearance and Clearance Testig Requirements for the Renovation, Repair and Painting Program,”
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2005-0049-1434.
116
Environmental Protection Agency, Final Rule, “Identification of Non-Hazardous Secondary Materials That Are
Solid Waste,” 76 Federal Register 15455, March 21, 2011.
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implementing the emission standards for both boilers and solid waste incinerators. The 2007 D.C.
Circuit Court of Appeals decision that vacated EPA’s previous emission standards for boilers also
vacated EPA’s definition of terms under its “CISWI Definitions Rule.”117 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.’”118 The 2011 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.119 EPA anticipates that boiler operators that burn materials newly-identified as a
solid waste would switch to a non-waste fuel, rather than being subject to the more stringent
emission standards applicable to solid waste incinerators. The final rule also addresses a host of
concerns raised 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 (discussed above). On February 7, 2013, EPA amended the 2011
rule to clarify specific elements of the regulations. The amendments were jointly promulgated
with EPA’s reconsideration of the CISWI proposed rule (discussed above). For additional
information, contact Linda Luther (7-6852, lluther@crs.loc.gov).
117
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.
118
This and related court finding are discussed in the final rule at 76 Federal Register 15461.
119
See EPA’s web page “Identification of Non-Hazardous Materials That Are Solid Waste: Final Rulemaking” at
http://www.epa.gov/epawaste/nonhaz/define/index.htm.
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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
CRS analysts, listed below, contributed to this report.
Area of Expertise
Name
Phone
E-mail
Regulatory reform
Maeve Carey
7-7775
mcarey@crs.loc.gov
Clean Water Act
Claudia Copeland
7-7227
ccopeland@crs.loc.gov
Clean Air Act, oil and natural gas
Rick Lattanzio
7-1754
rlattanzio@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
Oil Spill Prevention
Jonathan Ramseur
7-7919
jramseur@crs.loc.gov
Safe Drinking Water Act and
underground storage tanks
Mary Tiemann
7-5937
mtiemann@crs.loc.gov
Clean Air Act, mobile sources, CAFE
Brent Yacobucci
7-9662
byacobucci@crs.loc.gov
Toxic Substances Control Act
Jerry Yen
7-9113
jyen@crs.loc.gov
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