Order Code RL33107
CRS Report for Congress
Received through the CRS Web
Emergency Waiver of EPA Regulations:
Authorities and Legislative Proposals in the
Aftermath of Hurricane Katrina
September 29, 2005
James E. McCarthy and Claudia Copeland
Specialists in Resources and Environmental Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

Emergency Waiver of EPA Regulations:
Authorities and Legislative Proposals
in the Aftermath of Hurricane Katrina
Summary
As state, local, and federal officials respond to Hurricane Katrina, there has been
discussion regarding whether environmental regulations might slow or impede
response efforts, and whether Congress needs to provide authority to waive
environmental regulations in order to speed response to and recovery from the
hurricane and subsequent flooding.
Responding to these concerns, on September 16, Senator James Inhofe, the
Chairman of the Senate Environment and Public Works Committee, and Senator
David Vitter of Louisiana introduced S. 1711, to allow the Environmental Protection
Agency (EPA) to waive or modify the application of any requirement that is
contained in any law under EPA’s administrative jurisdiction, if it is necessary to
respond in a timely and effective manner “to a situation or damage relating to
Hurricane Katrina.” On September 22, Senator Vitter and Senator Mary Landrieu of
Louisiana introduced S. 1765 and S. 1766, identical bills to provide disaster relief
and recovery incentives for Louisiana. These bills would allow the President to issue
emergency permits under which any project carried out in response to the disaster
would be considered to be in compliance with any applicable Federal law. A fouth
bill, Representative John Shadegg’s H.R. 3836, would require expedited issuance of
permits for Katrina-related refinery reconstruction.
This report reviews some of the environmental laws that could affect response
and recovery actions, discusses existing waiver authority, and identifies issues raised
by proposals to grant new waiver authority. The focus of the report is on regulatory
programs administered by EPA, including the Clean Water Act, Superfund, and the
Clean Air Act. In the short term, in the immediate aftermath of Hurricane Katrina,
environmental regulations do not appear to have posed an obstacle to local, state,
federal, or private response efforts, in part because existing waiver or flexibility
provisions were used in certain cases.
For the longer term, the report raises questions concerning the waiver authority
that new legislation might grant, including what its scope (both geographic and
regulatory) would be, how facilities granted waivers would be regulated after the
expiration of the waiver period, the effect of such legislation on state and local
requirements, and whether substantive as well as procedural requirements should be
waived, if waivers are to be granted.
Questions have also been raised regarding the requirements of the National
Environmental Policy Act (NEPA), a non-regulatory statute that, with exceptions,
requires written analyses of environmental impacts before major federal actions are
undertaken. NEPA questions are addressed in a separate CRS Report, NEPA and
Hurricane Response, Recovery, and Rebuilding Efforts
, RL33104.
This report will be updated as developments warrant.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Proposed New Waiver Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Waiving Environmental Requirements In Current Laws . . . . . . . . . . . . . . . . 2
Clean Water Act National Contingency Plan Exception . . . . . . . . . . . . 2
Clean Water Act “Upset” Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Clean Water Act Section 404 Permits . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Superfund Response Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issues Raised by Proposed New Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Emergency Waiver of EPA Regulations:
Authorities and Legislative Proposals in the
Aftermath of Hurricane Katrina
Introduction
As state, local, and federal officials respond to Hurricane Katrina, there has been
discussion regarding whether environmental regulations might slow or impede
response efforts, and whether Congress needs to provide authority to waive
environmental regulations in order to speed response to and recovery from the
hurricane and subsequent flooding. This report reviews some of the environmental
laws that could affect response and recovery actions, and discusses existing waiver
authority, before proceeding to a discussion of legislative proposals.
The focus of this report is on regulatory authorities and programs administered
by the Environmental Protection Agency (EPA), including the Clean Water Act,
Superfund, and the Clean Air Act. Questions have also been raised regarding the
requirements of the National Environmental Policy Act (NEPA), a non-regulatory
statute that, with exceptions, requires analyses of environmental impacts before
major federal actions are undertaken. NEPA questions are addressed in a separate
CRS Report, NEPA and Hurricane Response, Recovery, and Rebuilding Efforts,
RL33104.
Proposed New Waiver Authority
In a Special Report issued September 12, 2005, three Heritage Foundation
analysts concluded that regulatory requirements, including specific environmental
requirements, should be waived or repealed in order to facilitate cleanup and
redevelopment of the areas affected by Hurricane Katrina. Their report provides a
summary of points raised by several analysts and policy-makers in the wake of the
hurricane and subsequent flooding. It states: “Rather than have rebuilding efforts
across the Gulf controlled or directed by bureaucrats and hampered by endless
restrictions and litigation, Congress and state and local governments should eliminate
or reduce the regulatory burden and allow communities to decide for themselves how
best to rebuild.”1
Others, though, have questioned whether additional waiver authority is needed.
In a September 16 press report, Senator James Jeffords was quoted as saying, “EPA
1 Edwin Meese III, Stuart M. Butler, and Kim R. Holmes, From Tragedy to Triumph:
Principled Solutions for Rebuilding Lives and Communities
, The Heritage Foundation,
Special Report #05, September 12, 2005, p. 2.

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Administrator Stephen Johnson told us yesterday that current environmental laws and
regulations do not stand in the way of EPA’s response to Hurricane Katrina. ... Based
on the administrator’s response, I am opposed to a blanket waiver for environmental
laws.”2
Some Members of Congress have proposed legislation to waive environmental
requirements in response to the hurricane. On September 16, Senator James Inhofe,
the Chairman of the Senate Environment and Public Works Committee, and Senator
David Vitter of Louisiana introduced S. 1711, to allow the Environmental Protection
Agency (EPA) to waive or modify the application of any requirement that is
contained in any law under EPA’s administrative jurisdiction, or that applies to any
project or activity carried out by EPA if it is necessary to respond in a timely and
effective manner “to a situation or damage relating to Hurricane Katrina.” On
September 22, Senator Vitter and Senator Mary Landrieu of Louisiana introduced S.
1765 and S. 1766 (identical bills), to provide disaster relief and recovery incentives
for Louisiana. Section 502 of the bills would allow the President to issue emergency
permits for any project carried out in response to the disaster. A fourth bill,
Representative John Shadegg’s H.R. 3836, would require expedited issuance of
permits for Katrina-related refinery reconstruction.
Waiving Environmental Requirements In Current Laws
In emergency situations, EPA and other regulatory agencies have emergency
powers under several statutes. EPA has used this authority in the wake of Hurricane
Katrina to waive some regulatory requirements or to exercise its enforcement
discretion (i.e., to decline to enforce against certain categories of violations) under
environmental statutes. In addition to these statutes, the Robert T. Stafford Disaster
Relief and Emergency Assistance Act provides waiver authority. It allows the waiver
of administrative conditions that would otherwise prevent the giving of assistance by
federal agencies, if the inability to meet such conditions is a result of a major disaster
(42 U.S.C. 5141) and it waives the application of certain requirements of the National
Environmental Policy Act (42 U.S.C. 5159). A list of waivers granted (by all federal
agencies) can be found on the Department of Homeland Security website at:
[http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0718.xml]. Of particular
interest for this report are the waiver authorities under the Clean Water Act,
Superfund, and the Clean Air Act.
Clean Water Act National Contingency Plan Exception. Perhaps the
most immediate need for regulatory flexibility in the immediate New Orleans area
has related to evacuating trapped floodwaters from New Orleans. Officials
recognized that immediate removal was necessary to protect city residents and
emergency responders from public health risks of exposure to waters that had mixed
with human and animal sewage, oil and gas from ruptured tanks and pipes, and
myriad chemicals that leaked from damaged properties and vehicles. The most
expedient option for un-watering the city was to pump and discharge the water into
adjacent Lake Pontchartrain.
2 “Critics Fear Katrina Impact Could Include Environmental Laws,” CQ Green Sheets,
September 16, 2005.

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The discharge of pollutants to waters of the United States is typically regulated
by Clean Water Act permits issued by states (or in some cases EPA) under the
National Pollutant Discharge Elimination System (NPDES) program. Both the
statute and EPA regulations, however, establish exceptions to the requirement for a
discharge permit, and EPA has determined that one exception under Section 311 of
the Clean Water Act is applicable to un-watering New Orleans. The existing
allowable exception in this case (found at 40 CFR §122.3(d)) involves flexibility
already contemplated by EPA’s rules, not an express waiver of normal requirements.
Section 311(c) of the Clean Water Act authorizes the President to “ensure
immediate and effective removal” of discharges from onshore facilities of oil and
hazardous substances that pose substantial threats to public health or welfare. EPA
has determined that this provision of the law applies to the floodwaters of New
Orleans, because industrial facilities, sewer systems, and property from which oil and
hazardous substances have been discharged constitute an “onshore facility.” Section
311(c) requires that removal of oil and hazardous substances be in accordance with
an overall framework called the National Contingency Plan (codified at 40 CFR part
300).3 Further, EPA’s NPDES regulations (40 CFR §122.3(d)) provide that a
discharge to water that is conducted as part of a Section 311(c) removal action is an
allowed exception that does not require a Clean Water Act NPDES permit.
Clean Water Act “Upset” Exception. Another exception under NPDES
regulations may be utilized by industrial or municipal facilities in the hurricane-
affected region, although whether this has occurred is as yet unknown. EPA
regulations recognize the possibility of situations in which an industrial or municipal
facility would be temporarily unable to comply with NPDES permit terms for reasons
beyond the control of the operator. Under the rules (40 CFR §122.41(n)), an “upset”
is an exception incident in which there is a temporary and unintentional
noncompliance with permit effluent limitations because of factors beyond the
reasonable control of the permittee. For example, a power failure may cause a
treatment system not to function, resulting in a permit violation before the facility can
halt its discharge. EPA’s rules recognize an upset as an affirmative defense to an
enforcement action for violations of technology limits in the permit. Under these
rules, to establish an upset defense, a permittee must notify the permitting authority
within five days and must demonstrate the specific cause of the upset and that the
violation was beyond the permittee’s reasonable control.
3 The National Oil and Hazardous Substances Pollution Contingency Plan, more commonly
called the National Contingency Plan or NCP, is the federal government’s blueprint for
responding to both oil spills and hazardous substance releases. It is intended to provide a
national response capability and promote overall coordination among the hierarchy of
responders and contingency plans. Under the Plan, EPA is the lead federal response agency
for spills occurring in inland waters or on land, and the U.S. Coast Guard is the lead
response agency for spills in coastal waters and deepwater ports. Congress has broadened
the scope of the NCP over the years, since it was first developed in 1968 in response to an
oil spill, adding requirements for responses to hazardous substance spills as well as oil
discharges, and to releases at hazardous waste sites that require emergency removal actions.
For additional information, see [http://www.epa.gov/oilspill/ncpover.htm].

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In Louisiana, the state’s Department of Environmental Quality issued an
emergency declaration on September 3 containing a number of measures to prevent
irreparable damage to the environment as a result of the hurricane emergency. One
portion of this document advised permittees about activating the upset provisions in
state NPDES permits, with certain modifications of normal procedures, such as
generally waiving the state’s requirement for notification of an upset within 24 hours
of occurrence, and granting authorization to discharge water that had been placed in
storage tanks, other containers or vessels for stabilization purposes.4 Similarly, the
Mississippi Department of Environmental Quality issued an emergency order that
addresses wastewater treatment systems and waives the initial notification
requirement for an upset condition and waives effluent monitoring requirements for
30 days, allows the discharge of water from tanks that were emptied of their previous
contents, and allows owners and operators of wastewater plants to make repairs
without prior notice.5
Clean Water Act Section 404 Permits. Section 404 of the Clean Water
Act establishes a program to regulate the discharge of dredged and fill material into
waters of the United States, including wetlands. The U.S. Army Corps of Engineers
administers the program, particularly the issuance of permits that authorize regulated
activities, using environmental guidance from EPA. The Army Corps also regulates
activities that affect navigable waters under authorities in the Marine Protection,
Research, and Sanctuaries Act (MPRSA, 33 U.S.C. §1413)6 and the Rivers and
Harbors Act of 1899 (33 U.S.C. §403). On September 3, the Corps invoked
emergency procedures in its regulations (33 CFR Part 325.2(e)(4)) to modify for 90
days certain procedural requirements for carrying out work needed to respond to
Hurricane Katrina within the states of Louisiana and Mississippi. According to the
Corps, the emergency permitting procedures were put in place to save lives and
property and to restore some infrastructure; they apply to local, state, and federal
agencies within the affected area, plus utility companies, electrical, phone, and
pipelines, including natural gas distribution systems, plus road and railroad
transportation projects. The emergency procedures allow needed work to proceed
with minimal prior notice to the Corps, and they specify the types of information to
be provided after work is complete.7
Superfund Response Authority. The Superfund law (officially, the
Comprehensive Environmental Response, Compensation, and Liability Act, or
4 State of Louisiana. Department of Environmental Quality. “Amended Declaration of
Emergency and Administrative Order.” Sept. 3, 2005, p. 2.
5 State of Mississippi. Department of Environmental Quality. “”Emergency Order No.
506205.” Sept. 13, 2005, p. 5.
6 Also under the MPRSA, EPA issues permits for ocean dumping of all substances except
dredged spoil, and the Act contains a provision (33 U.S.C. §1412(a)) that allows EPA to
issue emergency permits for dumping of industrial waste into ocean waters, based on an
unacceptable risk to human health and no feasible alternative. EPA has not utilized these
procedures in connection with disposal of Hurricane Katrina wastes.
7 U.S. Department of the Army, Mississippi Valley Division, Corps of Engineers.
“Emergency Permit Procedures for the States of Louisiana and Mississippi within the
Boundaries of the Mississippi Valley Division.” Sept. 3, 2005.

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CERCLA) provides the President and EPA broad authority and flexibility to respond
to releases of hazardous substances. Section 104(a)(1) of the Act (42 U.S.C. §
9604(a)) provides that whenever there is a release or threatened release of a
hazardous substance, or a pollutant or contaminant that may present an imminent and
substantial danger:
... the President is authorized to act, consistent with the national
contingency plan, to remove or arrange for the removal of, and
provide for remedial action relating to such hazardous
substance, pollutant, or contaminant at any time (including its
removal from any contaminated natural resource), or take any
other response measure consistent with the national contingency
plan which the President deems necessary to protect the public
health or welfare or the environment.
This authority can be invoked by on-scene coordinators, who have broad authority
to conduct emergency response actions under the National Contingency Plan (NCP).
Further, the NCP specifies in 40 CFR §300.400(e)(1) that “No federal, state, or local
permits are required for on-site response actions conducted pursuant to CERCLA....”
This exception does not apply to off-site activities, however: “Permits, if required,
shall be obtained for all response activities conducted off-site.”8
Similar provisions regarding actions taken in response to the emergency are
contained in relevant state laws. For example, the State of Louisiana Department of
Environmental Quality Emergency Declaration9 provides that owners and operators
of solid waste management facilities that had permits from the Department before the
hurricane “are authorized to make all necessary repairs to restore essential services
and the functionality of stormwater management and leachate collection systems
damaged by the Hurricane, without prior notice to the Department.”10 The order
provides that vegetative debris and construction and demolition debris mixed with
other hurricane-generated debris need not be segregated prior to disposal. It
authorizes local governments or their agents to conduct the open burning of
vegetative debris without prior notice to the Department, and it waives numerous
requirements that would otherwise apply to the cleanup of asbestos-containing
material.
The order maintains some substantive requirements, however. For example,
hazardous waste generated as a result of the hurricane “must be separated from other
hurricane generated waste and disposed of at a permitted hazardous waste disposal
facility.”11 The burning of asbestos-containing materials is also prohibited.
8 40 CFR 300.400(e)(2).
9 State of Louisiana, Department of Environmental Quality, “Amended Declaration of
Emergency and Administrative Order,” September 3, 2005.
10 Ibid., p. 3
11 Ibid., p. 5.

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Clean Air Act. Various provisions of the Clean Air Act have also been waived
by EPA in its response to Hurricane Katrina. These waivers have addressed concerns
regarding the impact of the hurricane and subsequent flooding on energy supplies
within the four states that suffered major damage, as well as impacts in other states.
Because of the importance of the Gulf area as both a producer of oil and gas and a
refiner of petroleum products, EPA has temporarily waived regulations regarding
gasoline and diesel fuel in all 50 states.
All of the fuel waivers were granted under the authority of Section 211(c)(4)(C)
of the Clean Air Act, as amended by P.L. 109-58, the Energy Policy Act of 2005. As
amended, this section allows EPA to temporarily waive a control or prohibition
respecting the use of a fuel or fuel additive if: (1) the Administrator determines that
“extreme and unusual fuel or fuel additive supply circumstances exist in a State or
region of the Nation which prevent the distribution of an adequate supply of the fuel
or fuel additive to consumers”; (2) these circumstances are the result of a natural
disaster, an Act of God, a pipeline or refinery equipment failure, or another event that
could not reasonably have been foreseen or prevented, and not the lack of prudent
planning; and (3) it is in the public interest to grant the waiver.
Four types of waiver have been issued. First, the Agency waived the volatility
requirements that apply to gasoline sold during the summer driving season.12 Lower
volatility gasoline is less prone to evaporation, thereby lowering emissions of the
volatile organic compounds that contribute to the formation of ground-level ozone.
The volatility requirements vary depending on region of the country, making the
supply of gasoline available in Northern states unusable in the South during summer
months. The summer volatility requirements expire on September 15 of the year in
most states. In order to prevent supply disruptions that might otherwise have
occurred, EPA waived these requirements beginning August 30 in Alabama, Florida,
Louisiana, and Mississippi, and, on August 31 extended the waiver to all 50 states
and the District of Columbia. This waiver has now expired in most states, but on
September 13, the agency extended the waiver until late September or October in
California, Texas, and Phoenix, Arizona, all of which require low volatility gasoline
after September 15.
Second, to prevent supply disruptions, the agency waived the requirement that
diesel fuel sold for use in on-road vehicles contain no more than 500 parts per million
of sulfur. This waiver permitted higher sulfur diesel fuel, which is allowed in
construction equipment, farm machinery, and other off-road vehicles, to be used in
highway vehicles such as trucks and buses. Sulfur content is normally limited
because sulfur dioxide is a pollutant that affects human health and the environment,
and because sulfur in exhaust gases interferes with the effective operation of
pollution control devices. The agency decided, however, that the potential for
shortages of compliant fuel outweighed the health and environmental impacts of
continued compliance, and waived the sulfur limit on August 31. The sulfur waiver
12 The volatility waiver and the diesel sulfur waiver can be found at
[http://www.epa.gov/compliance/katrina/waiver/index.html]. EPA’s Hurricane Katrina
Response homepage contains a full list of actions taken by the agency, including waivers
and extensions.

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applied in all 50 states and D.C., through September 15, 2005. It was subsequently
extended through October 5 in 24 mostly Eastern and Southern states and the District
of Columbia. Separately, EPA delayed the effective date of the Texas Low Emission
Diesel program, which was to have been implemented October 1.
Third, beginning September 2, the agency waived the requirement that
Richmond, Virginia, use cleaner burning reformulated gasoline (RFG) — also
because of fears of inadequate supply. This waiver has been extended through
October 20. A similar waiver was granted to St. Louis, Missouri, effective
September 27 through October 7, and to the Houston-Galveston and Dallas-Fort
Worth areas, effective September 21 through October 20.13
Fourth, on September 1, EPA waived until September 15 certain low sulfur
gasoline requirements that apply to the Atlanta area. Atlanta has special gasoline
sulfur requirements as part of its State Implementation Plan for compliance with the
ozone air quality standard. This waiver was subsequently extended through October
25.14
EPA has also used enforcement discretion to allow on a temporary basis actions
that would otherwise violate the Clean Air Act or other statutes and regulations.
Examples cited in the press have included rules regarding vapor recovery at gasoline
pumps and certification and registration procedures for tank truck carriers.15 EPA has
provided CRS information regarding 12 cases in which enforcement discretion or “no
action assurances” have been granted. Several of these instances affect multiple
facilities.16 In addition, the agency provided information concerning cases in which
EPA or the Department of Justice extended consent decree compliance deadlines due
to force majeure.
The Clean Air Act also provides authority in Section 110(f) for the President to
declare a national or regional energy emergency during which the Governor of an
affected state could suspend for up to four months provisions of the State
Implementation Plan for achieving air quality standards, excess emission penalties,
and compliance schedules. As of late September, the President had not taken such
action in response to Hurricane Katrina.
13 The Richmond and other RFG waivers can be found through EPA’s Katrina Response
homepage at [http://www.epa.gov/compliance/katrina/waiver/index.html]. Visited
September 28, 2005.
14 The Atlanta waiver can be found through EPA’s Katrina Response homepage, too, at
[http://www.epa.gov/compliance/katrina/waiver/index.html]. Visited September 28, 2005.
15 See “Katrina Relief Leads to Some Bending of Rules,” Washington Post, September 20,
2005, p. D1.
16 Personal communication, Gary Jonesi, U.S. EPA, Office of Civil Enforcement,
September 21, 2005.

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Issues Raised by Proposed New Authority
In recent years, Congress has been asked to grant additional authority to waive
or to exempt activities from environmental regulations in a number of situations (e.g.,
to facilitate military training and readiness, and to speed the construction of highway
and transit projects, to cite two of the most important and controversial examples).
As far back as the Carter Administration, there was discussion of whether
environmental regulations should be waived to facilitate the siting or expansion of
energy facilities. Thus, the call for additional waiver authority in response to
Hurricane Katrina may be viewed as part of a broader effort to relax environmental
requirements in the face of important policy objectives. Whether such authority is
needed, and if so, how it should be structured, are the key questions.
In the short term, in the immediate aftermath of Hurricane Katrina, it would not
appear that environmental regulations have posed an obstacle to local, state, federal,
or private response efforts. As a result, the question of whether additional waiver
authority is needed would appear to be best addressed in the context of longer term
recovery efforts.
Legislation. As noted earlier in this report, several bills have been introduced
to provide longer term authority to waive environmental regulations. S. 1711, for
example, would allow the Environmental Protection Agency (EPA) to waive or
modify the application of any requirement contained in any law or regulation under
the administrative jurisdiction of EPA, or that applies to any project or activity
carried out by EPA, if it is in the public interest and is necessary to respond in a
timely and effective manner “to a situation or damage relating to Hurricane Katrina.”
The bill would grant EPA this authority for a period of up to 18 months after the date
of enactment.
S. 1765 and S. 1766, developed by members of the Louisiana congressional
delegation to provide disaster relief and recovery incentives for Louisiana, would
allow the President, in Section 502, to issue emergency permits for any project
carried out in response to the disaster during a two-year period beginning on the date
of enactment. The President would be given 30 days to approve or disapprove an
application for such an emergency permit, and the application would be considered
approved if the President failed to act within the 30 days. Projects given emergency
permits would be considered to be in compliance with any applicable Federal law
(including regulations). The provision makes no distinction between environmental
and other laws: thus, the section would waive minimum wage, worker safety, civil
rights, and many other protections in addition to environmental requirements.
A third example, H.R. 3836, would expedite the construction of new refining
capacity by requiring that permit applications under eight environmental laws be
approved within 90 days of submittal unless the President determines that the
benefits of increased refinery capacity are outweighed by the costs of approving the
permit. This authority would apply to any refinery repair or reconstruction at an
existing refinery in the area affected by Hurricane Katrina if undertaken as a result

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of Hurricane Katrina. (As of September 28, 4 refineries remained closed due to
damage from Hurricane Katrina.)17
Issues. These bills raise a number of general questions (some of which are
addressed by one or more of the specific bills, but that might help guide discussion
on the broader question of whether additional waivers are desirable, and if so, under
what circumstances). This is not meant to be an exhaustive list; it focuses primarily
on pollution regulations and waivers rather than scheduling, siting, and natural
resource issues. Nevertheless, some of the questions are sufficiently broad that they
might be raised regarding such issues.
1. What authority would waiver legislation provide that the President and the EPA
Administrator don’t already have — both through existing emergency and waiver
authority in environmental statutes, and enforcement discretion? In the short term,
the answer would appear to be very little. As discussed above, the Clean Water Act’s
permit requirements have not prevented the discharge of contaminated floodwater
into Lake Pontchartrain. Regulatory requirements do not appear to be inhibiting the
cleanup and disposal of debris. The Clean Air Act has not prevented the waiver of
regulations affecting fuel distribution or the open burning of debris. Recognizing this,
the waiver authority provided in the bills discussed above appears to be focused on
a medium term, in which decisions regarding reconstruction will be made. Of the
four bills, one (H.R. 3836) covers an indeterminate period during which
reconstruction is undertaken as a result of Hurricane Katrina, while the other three
provide authority for 18 months (S. 1711) or 2 years (S. 1765/1766). The bills do not
address the longer term in which the facilities granted waivers or emergency permits
would operate. Do they envision waivers or exemptions that would expire at the end
of the 18-month or 2-year reconstruction period? Or do they intend to provide
permanent waivers for facilities constructed during that window? If the latter, how
would permanent exemptions for some facilities be reconciled with tighter standards
imposed on other facilities built before or after the post-Katrina period?
2. If additional waiver authority were granted, would it apply only to the 4 states
directly affected by Hurricane Katrina, to other states in which a major disaster has
been declared, or to any of the 50 states? If the waiver authority applied to any of the
50 states, some might see opportunities for abuse, unless the potential waiver
authority were closely circumscribed. On the other hand, if expedited authority were
provided only in the 4 states immediately affected by Katrina, some might see this
as providing incentives to locate new refinery capacity or other development in areas
likely to experience future hurricane and flood damage. The four bills described
17 In addition to Rep. Shadegg, Rep. Barton and Sen. Inhofe have introduced legislation to
expedite the construction of new refining capacity (H.R. 3893 and S. 1772 respectively).
These bills are not directly related to recovery from Hurricane Katrina, and so are not
discussed in this report. H.R. 3893, which was ordered reported by the House Energy and
Commerce Committee September 28, would make changes to EPA’s New Source Review
program and modify the permitting process for refineries, but the changes would be
permanent (rather than waivers) and are not directly related to recovery from Hurricane
Katrina.

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above generally apply in the area affected by Hurricane Katrina and to repairs of
damage or reconstruction made necessary by the hurricane.18
3. What agencies (and related statutes) would be singled out for additional waiver
authority, if such authority were to be granted? For example, if environmental
regulations are viewed as impeding recovery efforts, is it only the environmental
programs administered by EPA, or would the Interior Department, Commerce
Department, and Council on Environmental Quality be included?19 S. 1711 takes the
former approach; H.R. 3836 addresses two additional laws outside the jurisdiction
of EPA20; while S. 1765/1766 apply to all applicable federal laws and regulations.
4. What about state and local requirements? State and local requirements concerning
air quality, water quality, and other environmental requirements may be as significant
in regulating recovery efforts as the federal laws that could be waived. And in most
cases, federal environmental laws are delegated to and administered by the states,
under parallel state statutes and regulations. Would Congress’s waiving of federal
laws pre-empt a state’s determination to enforce its own requirements?
5. If additional waiver authority were to be granted to the President or to the EPA
Administrator, what limits should there be on the laws and regulations that could be
waived or modified? For example, S. 1711 and S. 1765/1766 would appear to allow
waivers that would permit ocean dumping of residue and debris or filling of
wetlands, with no opportunity for public review. While some might see such actions
as expedient, others might point to potential consequences for the health of the
fishing industry and for the ability of the ecosystem to buffer future storms.
6. In addition to possibly limiting or specifying which laws are being waived, should
waiver authority be made less than total? For example, the agencies and
Departments being allowed to waive regulations could be directed to assure
compliance with the requirements that otherwise would apply to the “extent
practicable.” Or they could be directed to consult with the agencies administering the
laws that are being waived before taking actions, thereby possibly avoiding needless
harm. The four bills are silent on this issue.
7. The bills generally are silent as to what role, if any, courts are to play in reviewing
agency grants of the waivers discussed here.
18 Other legislation, not directly tied to hurricane relief, such as the bill to expedite refinery
construction approved by the House Energy and Commerce Committee (H.R. 3893), would
apply anywhere in the United States.
19 The Interior Department administers regulations affecting oil and gas drilling. Interior’s
Fish and Wildlife Service together with the Commerce Department’s National Marine
Fisheries Service (NMFS) implements the Endangered Species Act. NMFS also administers
fisheries regulations. The Council on Environmental Quality administers the National
Environmental Policy Act, and its environmental impact assessment requirements.
20 The two additional laws are the National Historic Preservation Act and the National
Environmental Policy Act.

CRS-11
Conclusion
Existing authorities in environmental laws have allowed a number of waivers
to provide flexibility in dealing with the impacts of Hurricane Katrina. Congress
now faces questions for the longer term as it considers legislation that would provide
for waivers of environmental regulations for reconstruction. As Congress considers
such legislation, what is lacking are specific examples of the types of activity that
would constitute essential components of reconstruction but that might not be
permitted or could be delayed under current law and regulations.