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 25, 2012
Congressional Research Service
7-5700
www.crs.gov
R41561
CRS Report for Congress
Pr
epared 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 has
approved several bills that would overturn specific regulations or limit the agency’s authority.
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.
Environmental groups disagree that the agency has overreached, and EPA states that critics’ focus
on the cost of controls obscures the benefits of new regulations, which, it estimates, far exceed
the costs; and it maintains that pollution control is an important source of economic activity,
exports, and American jobs. 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 to help address
these issues. It examines 40 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 development.
The report also discusses factors that affect the timeframe in which regulations take effect,
including statutory and judicial deadlines, public comment periods, judicial review, and
permitting procedures, the net results of which are that existing facilities are likely to have several
years before being required to comply with most of the regulatory actions under discussion.
Unable to account for such factors, which will vary from case to case, timelines that show dates
for proposal and promulgation of EPA standards effectively underestimate the complexities of the
regulatory process and overstate the near-term impact of many of the regulatory actions.
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EPA Regulations: Too Much, Too Little, or On Track?
Contents
Introduction...................................................................................................................................... 1
Is EPA on Target or Overreaching? Conflicting Views ............................................................. 1
What This Report Does ............................................................................................................. 3
A Few Caveats Regarding Timing............................................................................................. 4
Congressional Activity .............................................................................................................. 5
Organization of the Report ........................................................................................................ 8
Clean Air Act and Climate Change.................................................................................................. 8
Climate Change ......................................................................................................................... 8
Renewable Fuels...................................................................................................................... 11
Ambient Air Quality Standards ............................................................................................... 12
Electric Generating Units ........................................................................................................ 14
Boilers and Incinerators........................................................................................................... 15
Other........................................................................................................................................ 16
Clean Water Act ............................................................................................................................. 18
Toxic Substances Control Act (TSCA).......................................................................................... 25
Solid Waste (RCRA)...................................................................................................................... 26
Tables
Table 1. Major EPA Rules Expected to Be Proposed or Promulgated,
April-December 2012 ................................................................................................................... 6
Table 2. Major or Controversial Rules Promulgated by EPA Since January 2009 ........................ 28
Table 3. Major Rules Under Development at EPA ........................................................................ 33
Contacts
Author Contact Information........................................................................................................... 37
Key Policy and Legal Staff ............................................................................................................ 37
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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 recent regulatory
actions have drawn attention for several reasons. In some cases, such as regulation of greenhouse
gas emissions, they represent a new departure. Based on a 2007 Supreme Court 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
requirements to reexamine regulations, by court decisions, or because of changing technologies or
new scientific information.
EPA’s actions, both individually and in sum, have generated controversy. The Wall Street Journal,
calling the current scale of EPA regulatory actions “unprecedented,” has stated that the agency
“has turned a regulatory firehose on U.S. business”3 and, regarding proposed regulatory actions
affecting electric generating units, it has 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 has stated that EPA “is engaged in a series of rule-making proceedings of
extraordinary scope and ambition.”5 Affected parties, such as the National Petrochemical &
Refiners Association, have labeled the agency’s actions “overreaching government regulation”
and “a clear distortion of current environmental law,”6 while the National Mining Association has
said, “even at a time of great economic stress, EPA is poised to enact a series of back-door
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.
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mandates that threaten to cost millions of American jobs, and increase the cost of their electricity
while they’re at it.”7
Both Democrats and Republicans in Congress have expressed concerns, through bipartisan letters
commenting on proposed regulations and through introduced legislation that would delay, limit,
or prevent certain EPA actions.8 Senior Republicans in the House and Senate have stated that they
are committed to vigorous oversight of the agency’s actions during the 112th Congress,9 with
some threatening to withhold funding if the agency continues on its present course.10
EPA Administrator Lisa Jackson has not been silent as the agency’s actions have come under
attack. In a November 2010 letter to the ranking Members of the Energy and Commerce
Committee and its Subcommittee on Oversight and Investigations, she stated:
The pace of EPA’s Clean Air Act regulatory work under this administration is actually not
faster than the pace under either of the two previous administrations. In fact, EPA has
finalized or proposed fewer Clean Air Act rules (87) over the past 21 months than in the first
two years of either President George W. Bush’s administration (146) or President Clinton’s
administration (115).11
In congressional testimony and other fora, the Administrator has sought to rebut critics’
challenges to EPA’s actions and initiatives.
It’s time for a real conversation about protecting our health and the environment while
growing our economy. EPA’s 40 years of environmental and health protection demonstrate
our nation’s ability to create jobs while we clear our air, water and land…. Telling the truth
about our economy and our environment is about respecting the priorities of the American
people. More than 70 percent of Americans want EPA to continue to do its job effectively.
Those same Americans want to see a robust economic recovery. We have the capacity to do
both things if we don’t let distractions keep us from the real work of creating jobs.12
7 National Mining Association, “EPA’s Regulatory Train Wreck,” 2011, http://www.nma.org/pdf/fact_sheets/
epa_tw.pdf.
8 For a discussion of some of these congressional actions, see CRS Report R41212, EPA Regulation of Greenhouse
Gases: Congressional Responses and Options, by James E. McCarthy;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.
9 See, for example, Letter of Hon. Fred Upton, Chairman-elect, House Energy and Commerce Committee, and Hon.
James Inhofe, Ranking Member, Senate Environment and Public Works Committee, to EPA Administrator Lisa
Jackson, December 9, 2010, at http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=
d596d5fb-593c-4c99-b0c1-41aab15887b0. See also “A Coming Assault on the E.P.A.,” New York Times, editorial,
December 24, 2010.
10 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/.
11 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.
12 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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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.13 Many also fear that recent
decisions to delay the issuance or implementation of several standards are bad omens.
Commenting on EPA’s December 2010 request to delay the issuance of standards for boilers,
Clean Air Watch stated, “there is an unfortunate appearance here that political pressure from
Congress is affecting the situation. That EPA is running scared.”14 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 “Ambient Air Quality Standards” section,
below).
It is not this report’s purpose to render a verdict on whether EPA is overreaching, running scared,
or following the directions and using the authorities given it by Congress. Statements
characterizing EPA’s actions, such as those cited above, depend on judgments as to whether the
agency has correctly determined the level of stringency needed to address an environmental
problem, and whether the agency’s actions are justified by the legislative mandates that Congress
has imposed. Congress and the courts may render these judgments.
What This Report Does
This report provides a factual basis for discussion of these issues, which must ultimately be
evaluated on a case-by-case basis. The report identifies and briefly characterizes major regulatory
actions15 promulgated, proposed, or under development by EPA since January 2009. The report
uses data from EPA’s Spring 2011 Semiannual Regulatory Agenda16 and the list of economically
significant reviews conducted by the Office of Management and Budget (OMB)17 to compile a
list of 40 regulatory actions proposed, promulgated, or under development by the agency. The list
includes all EPA rules considered “economically significant” by OMB since January 2009,18 as
well as some others that were not so designated but have been widely discussed.
Each entry in this report (1) gives the name or, where appropriate, the common name of the
regulatory action (e.g., the “Tailoring Rule,” or the “Endangerment Finding”); (2) explains what
the action does; (3) states the current status of the rule or action (e.g., proposed July 6, 2010);
(4) explains the significance of the action, often providing information on estimated costs and
13 See, for example, comments of Clean Air Task Force, Earthjustice, Natural Resources Defense Council, and the
Sierra Club on the proposed emission standards for boilers, as cited in CRS Report R41459, EPA’s Boiler MACT:
Controlling Emissions of Hazardous Air Pollutants, by James E. McCarthy, p. 15.
14 Clean Air Watch, “EPA Seeks Big Delay in Final Toxic Rule for Boilers,” December 7, 2010, at
http://blogforcleanair.blogspot.com/2010/12/epa-seeks-big-delay-in-final-toxic-rule.html.
15 This report uses the terms “regulatory action,” “regulation,” “rule,” “standard,” and “guidelines” for the actions it
describes. There are slight differences among these terms, which are explained, if necessary to understand how the
regulatory action will be implemented. In general, “regulatory action” is the broadest of the terms and includes each of
the others.
16 U.S. EPA, Semiannual Regulatory Agenda: Spring 2011, at http://www.regulations.gov/#!documentDetail;D=EPA-
HQ-OA-2011-0592-0001
17 OMB, Office of Information and Regulatory Affairs (OIRA), Historical Reports at http://www.reginfo.gov/public/
do/eoHistReviewSearch.
18 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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benefits; (5) discusses the timeline for implementation, and whether there is a non-discretionary
congressional deadline or a court order or remand driving its development; and (6) identifies a
CRS analyst who would be the contact for further information. To simplify presentation, in some
cases, we have summarized several separate, but related, regulations under one heading.
This is not a complete list of the regulations that EPA has promulgated or proposed during the
Obama Administration. Rather, it is an attempt to identify the most significant and most
controversial. A complete list would be substantially longer.
A Few Caveats Regarding Timing
Not all of these rules are Obama Administration initiatives. Many began development under the
Bush Administration, including several that were promulgated under that Administration and
subsequently were vacated or remanded to EPA by the courts. Within the Clean Air Act group, for
example, most of the major rules, including the agency’s boiler rules and two of the major rules
affecting electric power plants (the Cross-State Air Pollution Rule and the MACT rule) fit that
description. Other EPA actions, such as reconsideration of the ozone air quality standard, have
actually delayed for several years implementation of Bush Administration rules that would have
strengthened existing standards. All of these are described in detail below.
Several other generalizations are worth underlining:
• Many proposed and “pre-proposal” rules linger for years without being
promulgated; thus, many of the EPA actions described here may not take effect
for some time.19 For those rules not yet promulgated, we have focused on rules
that have statutory or court-ordered deadlines and/or that have already been the
subject of significant discussion.
• If there are no deadlines, we have attempted to provide EPA’s estimate of the
schedule for promulgation. In some cases, EPA has not estimated a promulgation
date. In those instances, we have either provided dates reported in press accounts
or we have discussed the general outlook for promulgation. Experience suggests
that proposal or promulgation may take longer than estimated in cases that do not
have a court-ordered deadline.
• Although they are the most likely deadlines to be met, even court-ordered dates
for proposal or promulgation may change. It is not uncommon for EPA to request
extensions of time, often due to the need to analyze extensive comments.
• Promulgation of standards is not the end of the road. Virtually all major EPA
regulatory actions are subjected to court challenge, frequently delaying
implementation for years. As noted earlier, many of the regulatory actions
described here are the result of courts remanding and/or vacating rules
promulgated by previous administrations.
• In many cases, EPA rules must be adopted by states to which the program has
been delegated. Moreover, many states require that the legislature review new
regulations before the new rules would take effect.
19 They may also be substantially altered before they become final, as a result of the proposal and public comment
process, and/or judicial review.
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• 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 the end of 2012.
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 has increased, and legislation to prevent or delay
EPA action has passed the House. More legislation is considered likely. Some proposals are broad
in nature, targeting EPA generally or a lengthy list of specifics, while others focus more narrowly
on individual rules or actions.
The situation has been particularly contentious for regulatory actions involving greenhouse gases.
Although Administrator Jackson and President Obama have repeatedly expressed their preference
for Congress to take the lead in designing a GHG regulatory system, EPA maintains that, in the
absence of congressional action, it must proceed to regulate GHG emissions using existing
authority: a 2007 Supreme Court decision (Massachusetts v. EPA) compelled EPA to consider
whether GHGs are air pollutants that endanger public health and welfare, and if it so determined,
to embark on a regulatory course that is prescribed by the Clean Air Act. Having made an
affirmative decision on the endangerment question, EPA is now proceeding on that regulatory
course and is defending its actions in court.
Opponents of this effort in Congress, who maintain that the agency is exceeding its authority,
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
various regulatory activities under the EPA’s jurisdiction—many of them focused on GHGs.20 (On
March 9, 2011, the Senate failed to approve the House-passed bill and subsequently also did not
agree to a substitute text (S.Amdt. 149) that contained different funding levels and generally
omitted the EPA regulatory provisions in the House-passed bill.)
20 For information, see CRS Report R41698, H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of
Environmental Protection Agency (EPA) Provisions, by Robert Esworthy.
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The House also approved legislation to restrict EPA authority and to repeal a dozen EPA
regulatory actions dealing with greenhouse gases (H.R. 910), on April 7, 2011. In the Senate, an
amendment identical to H.R. 910 (S.Amdt. 183) failed on a vote of 50-50.
Table 1. Major EPA Rules Expected to Be Proposed or Promulgated,
April-December 2012
Item Number in
this Report
Name of Rule
Type of Rule
Expected Date
30. “Post-Construction”
Proposal April
Stormwater Rule
27.
Phase 2 Florida Numeric
Proposal May
Nutrient Water Quality
Standards
11. Particulate
Matter
Proposal June
(including “farm dust”)
NAAQS
24.
Tier 3 Motor Vehicle
Proposal July
Emission and Fuel
Standards
31.
Revised Cooling Water
Final July
Intake Rule
32.
Revised Steam Electric
Proposal July
Effluent Guideline
16, 17, 18, and 40.
Boiler MACT and related
Final uncertaina
rules
7.
GHG Emission Standards
Proposal uncertain
for Refineries
15. Greenhouse
Gas
(GHG)
Final uncertainb
Emission Standards for
Power Plants
Source: Compiled by CRS.
Notes: Expected dates are tentative.
a. EPA projected promulgation of the boiler rules by the end of April 2012, but as of this writing, the rules had
not gone to OMB for review.
b. Under a consent agreement signed in December 2010, EPA was to promulgate this rule by May 26, 2012.
The agency’s schedule slipped by eight months before the rule was proposed. Thus, the final rule is likely to
be delayed.
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.21 These provisions were
not included in the final appropriation, however (P.L. 112-74, enacted in December 2011).
21 For information, see CRS Report R41979, Environmental Protection Agency (EPA) FY2012 Appropriations:
Overview of Provisions in H.R. 2584 as Reported, by Robert Esworthy.
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Also in the 112th Congress, a number of bills addressing individual EPA regulations have been
introduced and considered. In addition to H.R. 910, five of these bills (H.R. 1633, H.R. 2250,
H.R. 2273, H.R. 2401, and H.R. 2681) have passed the House. The five bills would prevent,
revoke, or direct 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 have also been introduced for specific EPA regulations. S.J.Res. 27,
which would have struck EPA’s Cross-State Air Pollution Rule, was rejected by the Senate in
November 2011, but other resolutions may come to the floor.
Beyond the criticism of individual regulations, there also are calls for broad regulatory reforms,
for example to reinforce the role of economic considerations in agency decision-making, to
increase Congress’s role in approving or disapproving regulatory decisions, or to require analysis
of the cumulative impacts of multiple EPA regulations. One such broad bill is H.R. 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.22 The bill passed the House December 7, 2011. The House also
passed H.R. 3010, the Regulatory Accountability Act,23 and H.R. 527, the Regulatory Flexibility
Improvements Act, in December. 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, provides for judicial review of certain requirements and determinations
for which judicial review is not currently available, and impacts existing case law on judicial
deference to agency interpretations of rules. The second bill, among other provisions, would
requires 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.
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. Besides revoking regulations on
electric power plants that EPA has promulgated, it would establish 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
require 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
consider costs in setting health-based ambient air quality standards. Among the motivations for
the TRAIN Act is the widely expressed concern that when EPA analyzes impacts of individual
regulations, it does not consider costs imposed by multiple rules taking effect more or less
simultaneously.24
A number of other bills have been introduced in the House and Senate.
22 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.
23 For information, see CRS Report R42104, An Overview and Analysis of H.R. 3010, the Regulatory Accountability
Act of 2011, by Vanessa K. Burrows and Maeve P. Carey.
24 EPA analyses of the impact of new regulations generally construct a baseline of other state and federal regulations
that have been promulgated and court decisions or consent agreements that have been finalized as of the date of a new
regulation’s proposal or promulgation. If other regulations under development at the same time are not yet final, the
agency does not include the potential impact in its analysis, since regulations under development are often modified,
delayed, or withdrawn before promulgation.
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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 (25 of the 40) are being developed under
the regulatory authority of the Clean Air Act. To help organize the presentation of these 25, 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.25 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).26 (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. The first data submitted
under the rule were released January 11, 2012. For additional information, contact Jim McCarthy
(7-7225, jmccarthy@crs.loc.gov).
2. Greenhouse Gas Endangerment Finding. On December 15, 2009, EPA issued findings that
six greenhouse gases cause or contribute to air pollution that endangers public health and
welfare.27 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
25 U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases; Final Rule,” 74 Federal
Register 56260, October 30, 2009.
26 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.”
27 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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for the D.C. Circuit denied industry and state motions to stay the endangerment finding and
related regulations. The court’s order applied to 84 cases filed by a variety of industry groups and
states (Coalition for Responsible Regulation v. EPA). For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
3. Light Duty Motor Vehicle Greenhouse Gas Rules. On May 7, 2010, EPA and the National
Highway Traffic Safety Administration (NHTSA) promulgated integrated GHG emission
standards and corporate average fuel economy (CAFE) standards for new cars and light trucks, a
category that includes SUVs and minivans, as well as pickup trucks.28 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 regulations require
an increase in fuel economy to 34.1 mpg by model year 2016. 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. EPA and NHTSA have also
proposed joint GHG/fuel economy rules for 2017-2025 model year vehicles. On July 29, 2011,
the White House announced that it had reached agreement with 13 auto manufacturers, the United
Auto Workers, the state of California, and other interested parties under which GHG emissions
from new cars and light trucks will be reduced about 50% by 2025, and average fuel economy
will rise to nearly 50 miles per gallon. EPA and NHTSA formally proposed these standards on
December 1, 2011.29 The agencies estimate that the new technology to comply with the standards
will cost roughly $2,000 per vehicle in 2025, although lifetime fuel savings will total roughly
$5,000 to $6,000. For additional information, contact Brent Yacobucci (7-9662,
byacobucci@crs.loc.gov).
4. Greenhouse Gas Tailoring Rule. On June 3, 2010, EPA promulgated a rule that defines which
stationary sources will be required to obtain Clean Air Act permits for GHG emissions and how
the requirements will be phased in.30 The threshold set by the rule (annual emissions of 75,000-
100,000 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.31 Smaller businesses, almost all
28 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.
29 EPA and NHTSA, “2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate
Average Fuel Economy Standards; Proposed Rule,” 76 Federal Register 74854-75420, December 1, 2011.
30 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.
31 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,
(continued...)
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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. For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
5. PSD and Title V Permit Requirements for GHG Emissions. Beginning on January 2, 2011,
new and modified major stationary sources that emit more than 75,000 tons per year of CO2-
equivalent 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 case-
by-case basis, using generic guidance issued by EPA on November 10, 2010.32 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 will be required to obtain permits, whether or not they would be
required to do so because of emissions of other pollutants.
Existing sources that are already required to obtain operating permits under Title V of the act will
also have to provide information on their GHG emissions. EPA notes that the Title V requirement
will generally be satisfied by referencing information already provided to EPA under the GHG
reporting rule (item 1, above). Title V permits do not impose emission control requirements
themselves; they simply summarize emission control requirements mandated by other sections of
the Clean Air Act. Thus, the only change to Title V permits will be the addition of GHGs to the
list of pollutants that the facilities are allowed to emit. For additional information on PSD and
Title V permits, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
6. Medium- and Heavy-Duty Vehicle Greenhouse Gas Rule. On August 9, 2011, EPA and the
National Highway Traffic Safety Administration (NHTSA) finalized integrated GHG emission
standards and fuel economy standards for medium- and heavy-duty vehicles.33 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.
(...continued)
2012.
32 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.
33 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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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).
7. NSPS for Petroleum Refineries. On December 23, 2010, EPA announced that it was settling a
lawsuit filed by 11 states, two municipalities, and three environmental groups over its 2008
decision not to establish New Source Performance Standards (NSPS) for GHG emissions from
petroleum refineries. According to the agency, refineries are the second-largest direct stationary
source of GHGs in the United States and there are cost-effective strategies for reducing these
emissions. The agency 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 April 2012, the standards had not been proposed.
For additional information, contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov) or 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 15, below) and similar standards for Portland
cement manufacturing facilities (discussed in item 19, below)
Renewable Fuels
8. Expanded Renewable Fuel Standard (RFS2). On March 26, 2010, EPA promulgated new
rules for the renewable fuel standard (RFS) that was expanded by the Energy Independence and
Security Act of 2007 (EISA, P.L. 110-140).34 In 2010, the RFS required the use of 12.95 billion
gallons of ethanol and other biofuels in transportation fuel. Within that mandate, the statute
required the use of 0.95 billion gallons of advanced biofuels (fuels other than corn starch
ethanol), including 100 million gallons of cellulosic biofuels. EISA also requires that advanced
biofuels (as well as conventional biofuels from newly built refineries) meet certain lifecycle
greenhouse gas reduction requirements. Because no commercial-scale cellulosic biofuel refineries
have begun operation, the March 2010 rules reduced the mandated 2010 level for these fuels from
100 million gallons to 6.5 million gallons. The final rule also modified EPA’s proposed
methodology for measuring lifecycle greenhouse gas emissions. On December 21, 2010, EPA
finalized the mandate for 2011.35 Because of a similar shortfall in projected cellulosic production
capacity for 2011, the mandate was waived from 250 million gallons to 6.6 million gallons. The
overall mandate of 13.95 billion gallons for 2011 was maintained. For 2012, the 500 million
gallon cellulosic mandate was waived to 8.65 million, while the overall mandate of 15.2 billion
gallons is maintained.36 For additional information, contact Brent Yacobucci (7-9662,
byacobucci@crs.loc.gov).
9. Ethanol Blend Wall Waiver. On March 6, 2009, Growth Energy (on behalf of 52 U.S. ethanol
producers) applied to EPA for a waiver from the current Clean Air Act limitation on ethanol
content in gasoline. Ethanol content in gasoline has been capped at 10% (E10); the application
requested an increase in the maximum concentration to 15% (E15). A waiver would allow the use
34 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.
35 U.S. Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: Modifications to Renewable Fuel
Standard Program; Final Rule,” 75 Federal Register 79964, December 21, 2010.
36 U.S. Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: 2012 Renewable Fuel Standards:
Final Rule,” 77 Federal Register 1320-1358, January 9, 2012.
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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.37 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.38 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. On June 23, 2011, EPA issued final rules, including new labeling
requirements, to prevent the accidental use of E15 in vehicles and engines not approved for its
use. For additional information, contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
Ambient Air Quality Standards
10. Ozone Ambient Air Quality Standards. On January 19, 2010, EPA proposed a revision of
the National Ambient Air Quality Standard (NAAQS) for ozone.39 At the President’s request, on
September 2, 2011, this proposal was withdrawn, leaving EPA to enforce previously implemented
ozone standards.
NAAQS are the cornerstone of the Clean Air Act, in effect defining what EPA considers to be
clean air. They do not directly limit emissions, but they set in motion a process under which
“nonattainment areas” are identified and states and EPA develop plans and regulations to reduce
pollution in those areas. Nonattainment designations may also trigger statutory requirements,
including that new major sources offset certain emissions by reducing emissions from existing
sources. Currently, there are NAAQS for six pollutants (ozone, particulate matter, sulfur dioxide,
carbon monoxide, nitrogen dioxide, and lead). The Clean Air Act requires that these standards be
reviewed every five years, and all of the standards have been under court-ordered deadlines for
review. 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.
37 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.
38 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.
39 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 has been among the most
controversial standards under consideration at EPA, because of its wide reach and potential cost.
In the 2010 proposal, EPA identified at least 515 counties that would violate the NAAQS if the
most recent three years of data available at the time of proposal were used to determine
attainment (compared to 85 counties that violated the standard in effect at that time). The agency
estimated that the costs of implementing the reconsidered ozone NAAQS, as proposed, would
range from $19 billion to $90 billion annually in 2020, with benefits of roughly the same amount.
EPA completed its reconsideration of the ozone NAAQS and sent a final decision to the Office of
Management and Budget for interagency review in July 2011. On September 2, 2011, the White
House announced that the President had requested that EPA Administrator Jackson withdraw the
draft ozone standards at this time. The President’s statement noted that work is already underway
to update a 2006 review of the science that will result in the reconsideration of the ozone standard
in 2013, and stated that he did not support asking state and local governments to begin
implementing a new standard that will soon be reconsidered.40 For additional information, contact
Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
11. Particulate Matter (including “Farm Dust”) NAAQS. EPA last completed a review of the
NAAQS for particulate matter in 2006. Thus, the agency was required by the Clean Air Act to
conduct a review of the standards in 2011. EPA considers particulate matter to be among the most
serious air pollutants, responsible for tens of thousands of premature deaths annually.
The current NAAQS sets standards for both “fine” particulates (PM2.5) and larger, “coarse”
particles (PM10). The PM2.5 standards affect far more people and far more counties than the
standard for PM10, and both sets of standards have affected mostly industrial, urban areas.
Nevertheless, agricultural interests have made substantial efforts over the last year to assail a
supposed EPA plan to regulate emissions of farm dust through the PM10 NAAQS review, and have
urged Congress to prevent the agency from doing so. The House passed legislation, H.R. 1633, to
prevent EPA from regulating most sources of rural dust, in December 2011. Thus far, the agency
has not proposed any changes to the existing standards, and it has revised its target date for
proposal several times, most recently to June 2012. Final standards are not likely to be
promulgated before 2013. For additional information, contact Rob Esworthy (7-7236,
resworthy@crs.loc.gov).
12. Sulfur Dioxide NAAQS. Three other NAAQS reviews (for sulfur dioxide,41 nitrogen
dioxide,42 and carbon monoxide) were completed in 2010 and 2011. Of these, only the sulfur
dioxide (SO2) NAAQS is considered an economically significant rule.43 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).
40 The White House, Office of the Press Secretary, “Statement by the President on the Ozone National Ambient Air
Quality Standards,” September 2, 2011.
41 U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final
Rule,” 75 Federal Register 35520, June 22, 2010.
42 U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide;
Final Rule,” 75 Federal Register 6473, February 9, 2010.
43 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.
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Electric Generating Units
13. Cross-State Air Pollution (Clean Air Transport) Rule. EPA’s major clean air initiative
under the Bush Administration, the Clean Air Interstate Rule (CAIR), was vacated and remanded
to the agency by the D.C. Circuit Court of Appeals in 2008. EPA promulgated a replacement for
the rule, which it calls the Cross-State Air Pollution Rule, August 8, 2011.44 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 is
estimated at $3.0 billion in 2012 and $2.4 billion in 2014. EPA estimates the benefits of the rule at
$120 billion to $280 billion annually, chiefly the avoidance of 13,000 to 34,000 annual premature
deaths. Because of the earlier CAIR requirements, electric generators have already achieved more
than two-thirds of the pollution reductions necessary to comply with the 2014 standards. For
additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
14. 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. The standards for existing units, promulgated February
16, 2012,45 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), doubt whether compliance with the
mercury portion of these standards can be measured. EPA estimates that the annual benefits,
including the avoidance of up to 11,000 premature deaths annually, will be between $37 billion
and $90 billion. Following promulgation of these standards, existing power plants will have three
years, with a possible one-year extension, to meet the standards. About 20 states have already
established mercury emission control standards for coal-fired power plants, and other major
sources have been controlled for as long as 15 years, reducing their emissions as much as 95%.
For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
15. NSPS for GHG Emissions from Electric Generating Units. EPA has stated for some time
that it would 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
44 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.
45 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.
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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 has encountered delays: proposed
standards were not released until March 27, 2012,46 and the final standards are likely to be
delayed as well.
EPA set the proposed GHG emission standards at a level achievable by uncontrolled natural-gas-
fired 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
16.-17. MACT and Area Source Standards for Boilers. EPA proposed Maximum Achievable
Control Technology standards to control emissions of toxic air pollutants from commercial and
industrial boilers in June 2010. A final rule was issued February 21, 2011, under a court order by
the Federal District Court for the District of Columbia.47 Because of voluminous comments and
new information received from industry during a public comment period, EPA had asked the
court to extend the deadline for promulgating final standards to April 2012. Having been denied
that extension, the agency issued a statement saying, “The standards will be significantly different
than what EPA proposed…. The agency believes these changes still deserve further public review
and comment and expects to solicit further comment through a reconsideration of the rules.”48
The agency initiated a reconsideration after it released the final rule, and it proposed changes to
the rule December 2, 2011, stating that it expected promulgation of changes by April 30, 2012.
However, as of this writing, the rules had not gone to OMB for final review.
Boilers are used throughout industry and in many commercial and institutional facilities. The
D.C. Circuit vacated EPA’s previous MACT rule for this category in 2007, saying EPA had
wrongly excluded many industrial boilers from the definition of solid waste incinerators, which
have more stringent emissions requirements under the Clean Air Act. The vacated rule had
estimated annual costs of $837 million, with a benefit-cost ratio of about 20 to 1. The February
2011 rule would set more stringent standards. It would affect 13,840 boilers, according to the
agency, with annual costs estimated at $1.4 billion and benefits of $22 billion to $54 billion
annually, including the avoidance of 2,500 to 6,500 premature deaths.
46 As of mid-April, the standards had not appeared in the Federal Register, but a pre-publication copy and supporting
materials are available at http://www.epa.gov/carbonpollutionstandard/actions.html.
47 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.
48 U.S. EPA, “EPA Announces Next Steps on Emissions Standards for Boilers, Certain Incinerators,” Press Release,
January 20, 2011, at http://yosemite.epa.gov/opa/admpress.nsf/6424ac1caa800aab85257359003f5337/
58f5bee5e13c61228525781e007e9881.
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EPA also promulgated what are called “area source” standards for smaller boilers at the same time
as the MACT.49 The area source standards would affect 187,000 boilers, most of which would
only be required to perform a tune-up every two years to comply with the regulations. EPA
estimated the net cost of the area source rule to be $487 million annually, with partial benefits
ranging from $210 million to $520 million annually. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
18. Commercial and Industrial Solid Waste Incinerator (CISWI) Standards. A third
regulation promulgated at the same time as the boiler MACT and area source boiler rules would
set standards for emissions from commercial and industrial solid waste incinerators.50 These
standards are related to the D.C. Circuit’s remand of the boiler rules in 2007, and also faced a
judicial deadline of February 21, 2011. The rules would expand the number of existing facilities
subject to the more stringent CISWI standards from 20 to 88, with annual costs of $232 million,
according to EPA, and benefits of $360 million-$870 million annually. EPA is also reconsidering
these rules, on the same schedule as the Boiler MACT, and released proposed revisions to the
standards December 2, 2011. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
Other
19. Emission Standards for Portland Cement Manufacturing. On September 9, 2010, EPA
promulgated New Source Performance Standards (NSPS) for conventional pollutants from new
cement kilns and Maximum Achievable Control Technology standards for hazardous air
pollutants from both existing and new cement kilns.51 When fully implemented in 2013, the
standards will require a 92% reduction in emissions of both particulate matter and mercury and a
97% reduction in emissions of acid gases, according to EPA, as well as controlling other
pollutants. EPA had previously issued emission standards for this industry in 1999, but the
standards were challenged in court and remanded to the agency by the D.C. Circuit Court of
Appeals. The new rules reflect EPA’s reconsideration of the standards.
The agency estimates that it will cost the industry $350 million annually to comply with the
standards, but that benefits (including the avoidance of 960 to 2,500 premature deaths in people
with heart disease) will be worth $6.7 billion to $18 billion annually. The trade association
representing the industry says the standards will cause some facilities to close. 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, however.
Further regulation of this industry, which is the third highest U.S. source of carbon dioxide
emissions, is under consideration: when EPA promulgated the rule in September 2010, it stated in
49 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.
50 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.
51 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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the rule’s preamble to the rule that it is “working towards a proposal for GHG standards” for
these plants.52 For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
20.-21. Stationary Internal Combustion Engines. EPA set standards for both compression-
ignition53 (generally diesel) and spark ignition (generally gasoline) stationary engines54 in 2010.
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
estimates the health benefits of the two rules will be between $1.45 billion and $3.5 billion
annually by 2013. Annualized costs for the rules are estimated to be $626 million in 2013. In
response to a suit by the Engine Manufacturers Association, on November 2, 2011, EPA agreed to
revise a portion of the spark ignition rule dealing with formaldehyde emissions. For additional
information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
22.-23. Ocean-Going Ships. EPA took two steps to control emissions from ocean-going ships in
2009 and 2010. It promulgated emission standards for new marine engines55 and it proposed the
establishment of Emission Control Areas extending 200 nautical miles off most U.S. shores.56 In
the Emission Control Areas (ECAs), which received final approval in March 2010, both U.S. and
foreign ships would be required to use low sulfur fuel. In both cases, the actions reflect
international standards that the United States and other maritime nations have agreed to under the
International Convention for the Prevention of Pollution from Ships (MARPOL). EPA estimated
the cost of these two initiatives at over $3 billion annually by 2030, mostly attributable to the
cleaner fuel requirement. The agency also estimated that monetized benefits of the requirements
will exceed costs by more than 30 to 1. The Emission Control Areas and the new standards were
supported by both industry and environmental groups. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
24. 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 finalized these rules on April 17, 2012.57 Under the CAA, EPA is required to review New
Source Performance Standards every eight years; the revisions update NSPS rules for VOCs and
52 Ibid., p. 54997.
53 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.
54 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.
55 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.
56 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.
57 For information, see http://www.epa.gov/airquality/oilandgas/actions.html.
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SO2 that were promulgated in 1985. Similarly, EPA had a statutory obligation to review
hazardous air pollutant standards for oil and natural 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).
25. 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
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
MY2009.58 As with the Tier 2 standards, the proposed Tier 3 standards are expected to include
changes to both vehicle emissions standards, as well as changes to rules on fuel formulation that
will allow the use of new technology. (To permit the use of more advanced emissions controls for
Tier 2, EPA also finalized tighter gasoline sulfur standards.) EPA projects that the agency will
publish a proposed rule in July 2012. In a letter to EPA Administrator Jackson, several Senators
asked EPA to delay its rulemaking over concerns that the new fuel standards would raise the price
of gasoline.59 For additional information, contact Brent Yacobucci (7-9662,
byacobucci@crs.loc.gov).
Clean Water Act
26. Construction Site Effluent Limitation Guidelines. On December 1, 2009, EPA promulgated
regulations under the Clean Water Act (CWA), called effluent limitation guidelines (ELGs), to
limit pollution from stormwater runoff at construction sites.60 The rule, called the Construction
and Development ELG, took effect February 1, 2010. OMB determined that it is an economically
significant rule. It requires construction sites that disturb one or more acres of land to use erosion
and sediment control best management practices to ensure that soil disturbed during construction
activity does not pollute nearby waterbodies. For construction sites disturbing 10 acres or more,
the rule established, for the first time, enforceable numeric limits on stormwater runoff pollution.
EPA issued the rule in response to a 2004 lawsuit filed by an environmental group; in 2006, a
federal court ordered EPA to issue a final rule by December 1, 2009. The rule affects about
58 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.
59 Jeremy P. Jacobs, “Bipartisan Senate Group Seeks Delay in EPA Tailpipe Rules,” E&E News PM, January 12, 2012.
60 U.S. Environmental Protection Agency, “Effluent Limitation Guidelines for the Construction and Development Point
Source Category,” 74 Federal Register 62996-63058, December 1, 2009.
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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.61 In January 2012, EPA published a Federal Register Notice seeking data on the
effectiveness of technologies in controlling turbidity in discharges from construction sites,
information that the agency intends to use in revising the rule, which it expects to finalize by
November 19, 2012.62 For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
27. 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 long-
standing view that pesticide applications that comply with federal pesticides law do not require
CWA permits.63 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.”64 Meanwhile, in March 2011, the House passed 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 has
approved H.R. 872.65 For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
28. 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
61 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.
62 U.S. Environmental Protection Agency, “Effluent Limitations Guidelines and Standards for the Construction and
Development Point Source Category; Notice,” 77 Federal Register 112, January 3, 2012.
63 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.
64 “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.
65 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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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, 2010.66 In response to criticism of the standards, EPA delayed the
effective date of the final rule, to allow local governments, businesses, and the state of Florida
time to review the standards and develop implementation strategies. EPA further delayed the
effective date of the 2010 rule until July 6, 2012, to allow the state to adopt its own numeric
nutrient criteria for inland waters, which the state proposed in November 2011.67 If the state
adopts an approvable rule that meets CWA criteria, EPA intends to initiate administrative action to
withdraw the 2010 federal rule. Nevertheless, separate legal challenges to the rule have been filed
in federal court by environmental advocates, the state of Florida, and others. In February, a
federal court ruling largely upheld EPA’s authority and methodology in setting numeric criteria
for nutrient pollution in Florida waters, but remanded a portion of the rule concerning numeric
criteria for streams, saying they were arbitrary and capricious.
Water quality standards do not have the force of law until the state translates them into permit
limits or otherwise imposes pollution control requirements on dischargers in the state. The rule
will not establish any requirements directly applicable to regulated entities or other sources of
nutrient pollution. While few dispute the need to reduce nutrients in Florida’s waters, EPA’s rule
has been controversial, involving disputes about the data underlying the proposal, potential costs
of complying with numeric standards when they are incorporated into discharge permit
limitations, and disputes over administrative flexibility. EPA estimated that the potential
incremental costs associated with the rule range from $16 million to $25 million per year, and
monetized benefits of $28 million per year. Many stakeholders contend that EPA greatly
underestimated costs. The rule was determined by OMB to be a significant regulatory action, but
not “economically significant.” In response to criticisms, EPA requested the National Academy of
Sciences to review the agency’s economic analysis of the costs of state implementation of the
rule. The committee’s report, released in March, found that EPA underestimated implementation
costs and did not adequately consider uncertainties that would affect the cost of changing from
narrative to numeric water quality standards.68
The second phase of standards, for estuaries, coastal waters and flowing waters in the South
Florida Region, currently is due to be proposed by May 21, 2012, and finalized by January 13,
2013. It is conceivable that these dates could change, based on the state of Florida’s efforts to
66 U.S. Environmental Protection Agency, “Water Quality Standards for the State of Florida’s Lakes and Flowing
Waters; Final Rule,” 75 Federal Register 75762-75807, December 5, 2010.
67 U.S. Environmental protection Agency, “Effective Date for the Water Quality Standards for the State of Florida’s
Lakes and Flowing Waters,” 76 Federal Register 79604, December 22, 2011.
68 Water Science and Technology Board, Division on Earth and Life Sciences, National Research Council of the
National Academies, Review of the EPA’s Economic Analysis of Final Water Quality Standards for Nutrients for Lakes
and Flowing Waters in Florida, March 2012, http://www.nap.edu/catalog.php?record_id=13376.
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adopt numeric nutrient water quality standards. For additional information, contact Claudia
Copeland (7-7227, ccopeland@crs.loc.gov).
29. Chesapeake Bay TMDL. Pursuant to a court-ordered schedule, EPA has developed a plan,
called a Total Maximum Daily Limit (TMDL), to restore nutrient-impaired waters of the
Chesapeake Bay. The TMDL is required because states in the Chesapeake Bay watershed have
failed to meet deadlines to attain water quality goals for the Bay, thus triggering Clean Water Act
requirements that the federal government must develop a plan to do so. The TMDL is not a
regulation. A TMDL represents the maximum amount of a pollutant that a body of water may
receive and still meet its water quality standards. Individual actions needed to meet the overall
pollutant limits specified in the TMDL, such as discharge permit limits or other controls, are to be
developed by the Chesapeake Bay states in Watershed Implementation Plans. The Chesapeake
Bay TMDL is the largest ever developed by EPA or any state, since it will apply to all impaired
waters of the 64,000 square miles of the six states in the Bay watershed. On December 29, 2010,
EPA issued the TMDL.69 Pursuant to the schedule of steps in the TMDL, states 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 is now reviewing the jurisdictions’ Phase II
WIPs, providing 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).
30. “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 issue a proposed rule by the end of April and to issue
a final rule in November 2012. For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
31. 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
69 Notice of the TMDL appeared in the Federal Register January 5, 2011. U.S. Environmental Protection Agency,
“Clean Water Act Section 303(d): Notice for the Establishment of the Total Maximum Daily Load (TMDL) for the
Chesapeake Bay,” 76 Federal Register 549-550, January 5, 2011.
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and existing manufacturing facilities, which EPA asked a court to remand to the agency for
modification.70 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.71 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 July 27, 2012. 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.72 For additional information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
32. Revised Steam Electric Effluent Guidelines. Under authority of CWA Section 304, EPA
establishes national technology-based regulations, called effluent limitation guidelines (ELGs), to
reduce pollutant discharges from industries directly to waters of the United States and indirectly
to municipal wastewater treatment plants. These requirements are incorporated into discharge
permits issued by EPA and states. The current steam electric power plant rules73 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.74
Pursuant to a November 8, 2010, consent decree that it entered into with environmental litigants,
EPA agreed to propose the revised power plant ELG by July 23, 2012, and to finalize the rule by
January 31, 2014. For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
33. 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 1973.75 SPCC plans apply to owners or operators of certain non-
70 40 CFR §125.90 and 40 CFR §125.130.
71 Entergy Corp. v. Riverkeeper Inc., 129 S. Ct. 1498 (2009).
72 The rule was published in the Federal Register on April 20. U.S. Environmental Protection Agency, “National
Pollutant Discharge Elimination System—Cooling Water Intake Structures at Existing Facilities and Phase 1
Facilities,” 76 Federal Register 22174-22228, April 20, 2011. For information, see CRS Report R41786, Cooling
Water Intake Structures: Summary of EPA’s Proposed Rule, by Claudia Copeland.
73 40 CFR §423.10.
74 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.”
75 38 Federal Register 34164, December 11, 1973.
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transportation-related facilities. In general, SPCC plans focus on oil spill prevention, requiring,
for example, secondary containment (e.g., dikes or berms) for oil-storage equipment.
Following the passage of the Oil Pollution Act of 1990, the agency proposed substantial changes
and clarifications that were not made final until July 2002.76 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.77
For most types of facilities subject to SPCC requirements, the deadline for complying with the
changes made in 2002 was November 10, 2011.78 However, in a November 2011 rulemaking,
EPA extended the compliance date for farms to May 10, 2013.79
Pursuant to the CWA definition of oil, the SPCC requirements apply to petroleum-based and non-
petroleum-based oil.80 In a 1975 Federal Register notice, EPA clarified that its 1973 SPCC
regulations apply to oils from animal and vegetable sources.81 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.82 However, in January 2009, EPA proposed a conditional exemption
from SPCC requirements for milk storage units.83 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.84 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).
34. “Waters of the United States” Interpretive Guidance. From the earliest days, Congress has
grappled with where to set the line between federal and state authority over the nation’s
waterways. Typically, this debate occurred in the context of federal legislation restricting uses of
waterways that impaired navigation and commerce. The phrase Congress often used to specify
waterways over which the federal government had authority was “navigable waters of the United
States.” However, in the legislation that became the CWA of 1972, Congress felt that the term
was too constricted to define the reach of a law whose purpose was not maintaining navigability,
as in the past, but rather preventing pollution. Accordingly, in the CWA Congress retained the
traditional term “navigable waters,” but defined it broadly to mean “waters of the United States.”
76 67 Federal Register 47041, July 17, 2002.
77 A November 13, 2009 rule (74 Federal Register 58784) eliminated specific exclusions/exemptions made by a
December 5, 2008 rulemaking (73 Federal Register 74236).
78 U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Rule Compliance Date Amendment ,” 75 Federal Register 63093, October 14, 2010.
79 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.
80 See CWA Section 311(a) (33 U.S.C. 1321(a)).
81 40 Federal Register 28849, July 9, 1975.
82 74 Federal Register 2461, January 15, 2009.
83 U.S. Environmental Protection Agency, “Oil Pollution Prevention: Spill Prevention, Control, and Countermeasure
Rule Requirements—Amendments,” 74 Federal Register 2461, January 15, 2009.
84 76 Federal Register 21652, April 18, 2011.
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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.85 The proposed guidance was subject to
public comment until July 31, 2011. 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 no schedule for when this will occur.86 For additional information, contact Claudia
Copeland (7-7227, ccopeland@crs.loc.gov).
35. 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
85 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.
86 For additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA) Is
Revisited by the Supreme Court: Rapanos v. United States, by Robert Meltz and Claudia Copeland.
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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 June 2010, the Army Corps suspended the use of a particular CWA general permit for surface
coal mining activities in Appalachia. In February, the Corps reissued all of its CWA general
permits, including one (nationwide permit 21) to replace the suspended permit with one
containing more stringent CWA rules applicable to these coal mining operations.87
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 2008.88 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), with the
goal of proposing a rule and a draft EIS later in 2012. The revised stream buffer zone rule, when
promulgated, is expected to apply nationwide, not just in Appalachia. For additional information,
contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
Toxic Substances Control Act (TSCA)
36.-38. 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. One rule proposed May 6, 2010, addresses
public and commercial buildings that are not child-occupied.89 A final version of that rule is
expected in 2015, according to the Unified Regulatory Agenda issued for fall 2011. A second rule,
also proposed in May 2010, addressed the testing requirements after renovations are complete.90
That rule was revised and promulgated July 15, 2011, effective October 4, 2011.91 The third rule,
87 For information see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits Program: Issues and
Regulatory Developments, by Claudia Copeland.
88 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.
89 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.
90 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.
91 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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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 significant amounts of time there.92 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.93 In June 2010, on its
own initiative, EPA published a memorandum informing enforcement division directors in the
regional offices that the Agency would not enforce certain requirements for certification of firms
or for individual training until after October 1, 2010. However, individual renovators must have
been enrolled in required training classes before that date and all must have completed required
training prior to December 31, 2010, according to the memorandum. For additional information,
contact Linda-Jo Schierow (7-7279, lschierow@crs.loc.gov)
Solid Waste (RCRA)
39. 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.94 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.
92 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.
93 Sven-Erik Kaiser, EPA Congressional Liaison, personal communication, Sept. 14, 2011.
94 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 Regulations: Too Much, Too Little, or On Track?
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.95 For
additional information, contact Linda Luther (7-6852, lluther@crs.loc.gov).
40. 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 18, 19, and 20, 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.”96 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.”97 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.’”98 The final rule addresses issues brought up by the
D.C. Circuit and, in doing so, significantly narrows the current universe of non-hazardous
secondary materials that could be burned in boilers.99 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
18 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 18, 19,
and 20, above). On December 23, 2011, EPA proposed reconsideration of the final rule that would
amend and clarify specific elements of the regulations (under 40 CFR Part 241). The proposed
amendments were jointly proposed with EPA’s reconsideration of the CISWI proposed rule (item
18, above). Although EPA originally anticipated that both proposed would be finalized in April
2012, it is unclear when the rule will be complete. For additional information, contact Linda
Luther (7-6852, lluther@crs.loc.gov).
95 Appalachian Voices et al. v. Lisa P. Jackson, Case No. 1:12-cv-00523 (D.D.C.), April 5, 2012.
96 Environmental Protection Agency, Final Rule, “Identification of Non-Hazardous Secondary Materials That Are Solid
Waste,” 76 Federal Register 15455, March 21, 2011.
97 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.
98 This and related court finding are discussed in the final rule at 76 Federal Register 15461.
99 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.
Congressional Research Service
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EPA Regulations: Too Much, Too Little, or On Track?
Table 2. Major or Controversial Rules Promulgated by EPA Since January 2009
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
1.
Clean Air Act
Greenhouse Gas
Promulgated
Required by
About 10,000 facilities
(GHG) Reporting October 30, 2009.
FY2008 EPA
in 31 categories were
Rule
Other categories of
appropriation
affected by the original
sources have
(P.L. 110-161).
rule. Eleven categories
subsequently been
with about 3,000 more
added, the latest on
facilities were
November 8, 2010.
subsequently added.
First data were
released 1/11/12.
2.
Clean Air Act
GHG
Promulgated
A determination
Prerequisite to
Endangerment
December 15, 2009. was required by
finalizing EPA’s GHG
Finding
the Supreme
emission standards for
Court decision in
cars and light-duty
Massachusetts v.
trucks, promulgated
EPA, April 2,
April 1, 2010; these, in
2007.
turn, triggered GHG
permit requirements
for stationary sources.
3.
Clean Air Act
Light Duty Motor Promulgated May 7,
Required by
New cars, minivans,
Vehicle GHG
2010.
Section 202 of
SUVs, and light trucks,
Rule for Model
the Clean Air Act
beginning in model
Years 2012-2016
once the agency
year 2012. EPA
found
estimates the lifetime
endangerment of
increased cost for
public health or
2012-2016 vehicles at
welfare from
$52 billion, with $240
GHG emissions.
billion in expected
benefits.
4.
Clean Air Act
GHG Tailoring
Promulgated June 3,
None
Limits to an estimated
Rule
2010.
1,600 the number of
facilities required to
obtain GHG emission
permits over each of
the years 2011-2013.
5.
Clean Air Act
PSD and Title V
Effective January 2,
Required once
Applies only to large
Permit
2011.
the Light Duty
stationary sources
Requirements for
Motor Vehicle
identified by the
GHG Emissions
Rule was
Tailoring Rule.
promulgated.
Congressional Research Service
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EPA Regulations: Too Much, Too Little, or On Track?
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
6.
Clean Air Act
Medium- and
Promulgated
Fuel economy
New trucks beginning
Heavy-Duty
September 15,
standards were
in model year 2014.
Vehicle GHG
2011.
required by
EPA estimates
Rule
Section 102 of
increased costs for
EISA (P.L. 110-
2014-2018 vehicles at
140). GHG
$8.1 billion, with $57
standards were
billion in projected
required once
benefits.
EPA finalized the
endangerment
finding, and were
harmonized with
the fuel economy
proposal.
8.
Clean Air Act
Expanded
Promulgated March
Decisions
Petroleum refiners,
Renewable Fuel
26, 2010 for 2010;
required by the
biofuel producers.
Standard (RFS2)
on December 21,
Energy
2010 for 2011; and
Independence and
on January 9, 2012
Security Act of
for 2012.
2007.
9.
Clean Air Act
Ethanol Blend
EPA granted a
The Energy
Gasoline refiners and
Wall Waiver
partial waiver for
Independence and blenders, auto
E15 use in 2007 and
Security Act of
manufacturers, and
newer passenger
2007 mandates
manufacturers of
cars and light
increased use of
engines for outdoor
trucks, November
renewable fuels.
equipment of al types.
4, 2010. On January
Unless EPA
21, 2011, EPA
grants a Clean Air
announced that the
Act waiver to
waiver would be
allow increased
expanded to include use of ethanol in
MY2001-MY2006
gasoline, it will be
vehicles.
difficult to meet
this mandate.
10.
Clean Air Act
National
Proposed January
In response to
Recent ozone levels in
Ambient Air
19, 2010; withdrawn petitions for
the vast majority of
Quality Standard
September 2, 2011.
review, EPA
the 675 counties with
for Ozone
agreed to
monitors would have
reconsider the
violated the proposed
ozone NAAQS
standard;
promulgated in
implementation of the
March 2008.
proposed standard
Court chal enge
could have led to
to the 2008
widespread new
standards
emission controls at a
(Mississippi v. EPA) projected cost of $19
was stayed
billion to $90 billion
pending the
annual y in 2020, with
reconsideration,
comparable levels of
but is now
benefits, according to
proceeding.
EPA.
Congressional Research Service
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EPA Regulations: Too Much, Too Little, or On Track?
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
12.
Clean Air Act
National
Promulgated June
D.C. Circuit
Principal effects would
Ambient Air
22, 2010.
remanded the
be to require
Quality Standard
SO2 standard to
additional controls on
for Sulfur
EPA in 1998; EPA
coal-fired electric
Dioxide (SO2)
acted under a
power plants; EPA
consent decree.
estimates costs at $1.8
billion to $6.8 billion
annual y, with benefits
5-6 times that amount.
13.
Clean Air Act
Cross-State Air
Promulgated August D.C. Circuit
Affects electric power
Pollution Rule
8, 2011.
remanded the
plants in 28 eastern
Implementation was
rule to EPA in
states; sets up cap-and-
stayed by the D.C.
2008.
trade programs for
Circuit Court of
SO2 and NOx, at a
Appeals, December
projected annual cost
30, 2011. Oral
of $2.4 billion, with
argument occurred
benefits of $120 billion
April 13, 2012.
to $280 billion
annual y, according to
EPA.
14.
Clean Air Act
Mercury and Air
EPA promulgated
Clean Air
Coal-fired electric
Toxics Standards
the standards
Mercury Rule was generating units, which
/ MACT for
February 16, 2012.
vacated and
generate about 45% of
Electric
remanded to EPA
the nation’s electricity.
Generating Units
in February 2008.
EPA estimates annual
(“Utility MACT”)
EPA, under a
cost at $9.6 billion,
consent decree,
with benefits of $37
agreed to
billion to $90 billion
promulgate
annual y.
MACT standards
by November 16,
2011.
19.
Clean Air Act
Portland Cement
Promulgated
Earlier standards,
Portland cement
Manufacturing
September 9, 2010.
promulgated in
manufacturing
MACT and NSPS
1999, were
industry. About 158
remanded to the
cement kilns operating
agency by the
at nearly 100 locations
D.C. Circuit
are affected by the
Court of Appeals. rules.
EPA promulgated
a replacement in
2006, but
subsequently
agreed to
reconsider the
replacement
rules.
Congressional Research Service
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EPA Regulations: Too Much, Too Little, or On Track?
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
20.
Clean Air Act
RICE Rule for
Promulgated March
The standards
900,000 engines used
Stationary Diesel
3, 2010.
respond in part
as backup generators
Engines
to a December
or to power
2008 DC. Circuit
compressors and
Court of Appeals
pumps by industrial,
ruling that EPA’s
agricultural, or oil and
air toxics
gas industry sources.
standards must
address emissions
during al phases
of operation
including periods
of startup,
shutdown, and
malfunction. The
schedule for
completing this
rule was
established by a
consent decree.
21.
Clean Air Act
RICE Rule for
Promulgated August Same as Item 20.
330,000 engines used
Stationary Spark-
20, 2010.
as backup generators
Ignition Engines
or to power
compressors and
pumps by industrial,
agricultural, or oil and
gas industry sources.
22.
Clean Air Act
Emission
Promulgated April
None, but EPA
The standards, which
Standards for
30, 2010.
had committed to affect new marine
New Marine
promulgate the
engines for ocean-
(C3) Engines
standards when
going ships beginning in
issuing earlier
2011, were general y
standards in 2003. supported by the
shipping industry,
23.
Clean Air Act
Emission Control International
None
The measure, which is
Areas for Ocean-
Maritime
supported by the
Going Ships
Organization gave
maritime industry, will
final approval to
require use of low
EPA’s proposal in
sulfur fuels within 200
March 2010.
nautical miles of most
of the U.S. coast.
24.
Clean Air Act
Oil and Natural
Promulgated April
EPA acted under
About 11,000 new
Gas Air Pollution
17, 2012
a consent
natural gas wells will
Standards
agreement signed
be affected annually.
in February 2010
The standards are the
to revise existing
first national air
NSPS and
emission standards for
hazardous
hydraulically fractured
pollutant rules.
wells.
Congressional Research Service
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EPA Regulations: Too Much, Too Little, or On Track?
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
27. Clean
Water Pesticide
EPA issued a final
2009 federal
Estimated universe of
Act
Application
permit on October
court ruling
affected activities is
General Permit
31, 2011.
invalidated a 2006 approximately 5.6
EPA rule.
million applications
annual y, performed by
365,000 applicators.
28. Clean
Water Florida Nutrient
EPA promulgated
2009 federal
Would likely affect a
Act
Water Quality
numeric nutrient
consent decree
broad array of
Standards
standards for
establishing a
industrial and
Florida inland
schedule for EPA
municipal dischargers
waters on
to issue numeric
and possibly sources of
December 5, 2010.
nutrient
nonpoint pol ution
Standards for other
standards.
(e.g., agricultural
Florida waters are
lands).
to be issued by
November 2012.
29. Clean
Water Chesapeake Bay
EPA finalized a
Consent decrees
Potentially could
Act
TMDL
TMDL on
required EPA to
require additional
December 29, 2010. develop a TMDL
pol ution control by
Bay jurisdictions are
by May 1, 2011.
many point and
developing
nonpoint sources
Watershed
throughout the
Implementation
Chesapeake Bay
Plans.
watershed.
33. Clean
Water SPCC Revisions,
Final rule extending
None
Farms subject to SPCC
Act
including
compliance date to
provisions and
Compliance Date May 10, 2013, was
applicable facilities that
Extension for
promulgated
store oil, which
Farms and
November 22,
includes milk.
Exemption for
2011. Final rule for
Milk Storage
milk storage
exemption was
promulgated April
18, 2011.
Source: Compiled by CRS.
Congressional Research Service
32
EPA Regulations: Too Much, Too Little, or On Track?
Table 3. Major Rules Under Development at EPA
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
3.
Clean Air Act
Light Duty Motor Proposed,
Proposal is based
New cars, minivans,
Vehicle GHG
December 1, 2011.
on the Supreme
SUVs, and light trucks,
Rule for Model
Court decision in
beginning in model year
Years 2017-2025
Massachusetts v.
2017. EPA estimates
EPA, April 2, 2007, the cost of the
and the
proposed standards for
subsequent
2017-2025 model
Endangerment
vehicles at $140 billion,
Finding (see Item
with benefits of $561
2).
billion.
7.
Clean Air Act
NSPS to Control
On December 23,
EPA has been
Petroleum refineries,
GHG Emissions
2010, EPA released
sued by numerous which EPA concludes
from Petroleum
the text of a
parties for its
are the second-largest
Refineries
settlement
failure to issue
direct stationary
agreement with 11
NSPS for GHG
source of GHGs in the
states, two
emissions from
United States.
municipalities, and
refineries
three environmental
(American
groups, under which
Petroleum Institute
it agreed to propose v. EPA). Section
the NSPS by
111(b) of the
December 10, 2011,
Clean Air Act
and take final action
requires NSPS for
on the proposal by
a category of
November 10, 2012. sources if it
As of April 2012, the “causes, or
standards had not
contributes
been proposed.
significantly to air
pollution which
may reasonably be
anticipated to
endanger public
health or
welfare.”
11.
Clean Air Act
National Ambient Proposal expected
D.C. Circuit
PM standards affect a
Air Quality
in June 2012.
remanded the
wide range of sources
Standard for
2006 fine
because they address
Particulate
particulate (PM2.5)
all kinds of particles
Matter (PM),
standards to EPA
and aerosols in the
including “farm
in February 2009.
atmosphere.
dust”
Clean Air Act
required review
by October 2011.
Congressional Research Service
33
EPA Regulations: Too Much, Too Little, or On Track?
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
15.
Clean Air Act
NSPS to Control
EPA proposed
EPA was sued by
Primarily coal-fired
GHG Emissions
standards March 27,
numerous parties
electric generating
from Electric
2012. Under a
for its failure to
units, which generate
Generating Units
settlement
issue NSPS for
about 45% of the
agreement with 11
GHG emissions
nation’s electricity.
states and other
from power
parties, EPA agreed
plants (State of
to take final action
New York v. EPA).
on the proposal by
Section 111(b) of
May 26, 2012, a date the Clean Air Act
that now appears
requires NSPS for
unlikely.
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.
16.
Clean Air Act
MACT to
Finalized February
D.C. Circuit
Would affect a broad
Control Air
21, 2011, The
vacated the rule
array of industrial,
Toxics from
agency began
in 2007. D.C.
commercial, and
Boilers (”Boiler
reconsideration of
District Court set
institutional facilities.
MACT”)
elements of the rule
deadline for
EPA estimates annual
the same day.
promulgation.
cost at $1.5 billion,
Revisions were
with annual benefits of
proposed December
$27 billion to $67
23, 2011.
billion.
17.
Clean Air Act
Area Source
Finalized February
D.C. Circuit
Boilers at thousands of
Standards for
21, 2011. The
vacated the boiler
smaller commercial,
Boilers
agency began
and related
industrial, and
reconsideration of
incinerator rules
institutional facilities.
elements of the rule
in 2007.
the same day.
Revisions were
proposed December
23, 2011.
Congressional Research Service
34
EPA Regulations: Too Much, Too Little, or On Track?
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
18.
Clean Air Act
CISWI
Finalized February
D.C. Circuit
88 boilers that qualify
Incinerator
21, 2011, (along with vacated the rule
as incinerators because
Standards
RCRA rules to
in 2007.
they burn solid waste.
identify non-
hazardous materials
that are solid wastes
when burned—see
item 40). The agency
began
reconsideration of
elements of the rule
the same day, and
revisions were
proposed December
23, 2011.
25.
Clean Air Act
Tier 3 Motor
EPA expects to
None
New car and light
Vehicle Emission
propose a rule in
truck manufacturers;
and Fuel
July 2012.
petroleum refiners.
Standards
26.
Clean Water Act Construction Site Rule was
Federal court
Affects about 82,000
Effluent
promulgated
ordered EPA to
firms involved in
Limitation
December 1, 2009.
issue the final rule
residential, commercial,
Guidelines
A portion of the
by December 1,
highways, street, and
rule has been stayed
2009.
bridge construction.
for reconsideration.
EPA expects to issue
a final rule by
November 19, 2012.
30.
Clean Water Act “Post-
EPA expects to
May 2012 consent Unknown at this time.
Construction”
propose a rule in
decree.
Stormwater Rule
April 2012.
31.
Clean Water Act Revised Cooling
EPA proposed
EPA rules issued
Proposal applies to
Water Intake
regulations March
in 2004 were
approximately 1,150
Rule
28, 2011. Final rule
remanded by
existing power plants
is due by July 27,
order of a federal
and certain other
2012.
court.
manufacturing facilities.
32.
Clean Water Act Revised Steam
A proposed rule is
November 2010
Proposal wil apply to
Electric Effluent
due by July 23, 2012. consent decree
existing and new steam
Guidelines
requires EPA to
electric power plants.
propose revised
rules by July 2012
and promulgate
final rule by
January 2014.
34.
Clean Water Act ‘Waters of the
Revised guidance
None
Potentially affects a
United States’
proposed April 27,
wide range of entities
Guidance
2011.
and activities subject to
CWA requirements,
including permits.
Congressional Research Service
35
EPA Regulations: Too Much, Too Little, or On Track?
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
35.
Clean Water Act Mountaintop
Various short-term
None
Surface coal mining
and Surface
Mining in
and long-term
operations in the
Mining Control
Appalachia
actions are
Appalachian region.
and Reclamation
underway by EPA
Act
and other agencies
to strengthen
environmental
reviews and revise
regulations.
36-
Toxic Substances Lead Renovation,
Final rule eliminating
August 2009
Workers and firms
38.
Control Act
Repair, and
the opt-out
settlement
that remodel, repair,
Painting
provision was
agreement set
or paint homes and
promulgated May 6,
numerous
some commercial
2010. Final rule
deadlines for
buildings.
regarding clearance
revisions of a
testing requirements 2008 lead rule.
was promulgated
July 15, 2011. A rule
for work in public
and commercial
buildings was
proposed May 6,
2010, and is
expected to be
finalized in 2015.
39. Resource
Coal Combustion Proposed June 21,
None Coal-fired
electric
Conservation
Waste
2010.
power plants.
and Recovery
Act (RCRA)
40. Resource
Identification of
Finalized February
In 2007 D.C.
Combustion units that
Conservation
Non-Hazardous
21, 2011 (along with
Circuit vacated
burn non-hazardous
and Recovery
Materials That
CAA boiler MACT
the CISWI
secondary materials.
Act (RCRA)
Are Solid Wastes
and area source
definitions rule in
When Burned
rules and CISWI
a decision that
standards—see
also addressed
items 16-18). The
CISWI and boiler
agency began a
MACT standards.
reconsideration of
elements of the rule
the same day.
Revisions were
proposed December
23, 2011.
Source: Compiled by CRS.
Congressional Research Service
36
EPA Regulations: Too Much, Too Little, or On Track?
Author Contact Information
James E. McCarthy
Claudia Copeland
Specialist in Environmental Policy
Specialist in Resources and Environmental Policy
jmccarthy@crs.loc.gov, 7-7225
ccopeland@crs.loc.gov, 7-7227
Key Policy and Legal Staff
Other CRS analysts, listed below, contributed to this report.
Area of Expertise
Name
Phone
E-mail
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
l uther@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
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
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