Environmental Regulation and Agriculture
Megan Stubbs, Coordinator
Specialist in Agricultural Conservation and Natural Resources Policy
March 12, 2013
Congressional Research Service
7-5700
www.crs.gov
R41622
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Environmental Regulation and Agriculture
Summary
As the U.S. and global economies continue to struggle, some inside and outside of Congress have
expressed concern about how environmental regulation may stifle growth and productivity. Much
of the criticism has focused on environmental regulations promulgated by the Environmental
Protection Agency (EPA). Some claim that EPA is overreaching its regulatory authority and
imposing costly and burdensome requirements on society. In general, the agriculture community,
among others, has been vocal in its concerns, contending that EPA appears to be focusing some of
its recent regulatory efforts on agriculture. Many public health and environmental advocates, on
the other hand, support many of EPA’s overall regulatory efforts and in some cases argue that EPA
has not taken adequate action to control the impacts of certain agricultural activities. Where
agriculture contributes to environmental impairment, these groups say, it is appropriate to
consider ways to minimize or eliminate the adverse impacts.
Growing interest in the impact of regulatory actions on many sectors of the economy is evident in
Congress, which continues to examine the role of EPA and other federal agencies in regulating
environmental protection. Congress has a number of policy options to address or respond to
potential regulatory impacts.
Most environmental regulations, in terms of permitting, inspection, and enforcement, are
implemented by state and local governments, often based on federal EPA regulatory guidance. In
some cases, agriculture is the direct or primary focus of the regulatory actions. In other cases,
agriculture is one of many affected sectors. Traditionally, farm and ranch operations have been
exempt or excluded from many environmental regulations. Given the agricultural sector’s size
and its potential to affect its surrounding environment, there is interest in both managing potential
impacts of agricultural actions on the environment and also maintaining an economically viable
agricultural industry. Of particular interest to agriculture are a number of regulatory actions
affecting air, water, energy, and chemicals.
Air
Agricultural production practices from both livestock and crop operations generate a variety of
substances that enter the atmosphere, potentially creating health and environmental issues. Recent
actions by EPA to regulate emissions and pollutants have drawn criticism, including greenhouse
gas emission reporting and permitting requirements, and National Ambient Air Quality Standards
(NAAQS) related to particulate matter (commonly referred to as dust). The agricultural
community continues to show particular interest in NAAQS because some farming and livestock
practices contribute to particulate matter emissions.
Water
Water quality issues also are of interest to the agricultural industry. Water is an input for
production and can also be degraded as a result of production through the potential release of
sediment, nutrients, pathogens, and pesticides. The extent and magnitude of water quality
degradation from agriculture practices varies greatly, but agriculture is proven to be a significant
source of impairment of several U.S. waters. Federal environmental laws largely do not regulate
agricultural actors, in many cases giving the regulatory responsibilities to the states. One
exception is large concentrated animal feeding operations (CAFOs), which are subject to
permitting requirements. Constraints on agricultural production to reduce pollution discharges
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typically arise at the state level in response to local concerns, and how to manage agricultural
sources has been a prominent issue in several large watershed restoration efforts, such as those in
the Chesapeake Bay and Florida Everglades.
Energy
Changes in energy policy, namely increased bioenergy production, have recently become
important to many in the agricultural industry, based on the potential of corn-based biofuel
production to contribute to the nation’s energy supply through both the renewable fuel standard
(RFS) and the increased percentage of ethanol in gasoline (E15).
Chemicals
Hundreds of chemical products are available to repel or kill “pests” that affect agricultural
production. The federal regulation of these chemicals includes registering and restricting their
use. The risks associated with agricultural chemical use and possible impacts on human health
and the environment also have led to recent federal regulatory reviews of chemical fertilizer and
pesticide use.
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Contents
Introduction ...................................................................................................................................... 1
Report Content and Caveats ...................................................................................................... 2
General Options for Congress ................................................................................................... 3
Report Organization .................................................................................................................. 5
Air .................................................................................................................................................... 6
Mandatory Reporting of Greenhouse Gases (GHGs) ................................................................ 6
GHG Emissions Tailoring Rule and the “Cow Tax” ................................................................. 8
Reduction of Emissions from Gasoline/Diesel Powered Stationary Engines .......................... 10
National Ambient Air Quality Standards (NAAQS)—Particulate Matter ............................... 11
National Ambient Air Quality Standards (NAAQS)—Ozone ................................................. 16
EPCRA and CERCLA Reporting Requirements ..................................................................... 17
Water .............................................................................................................................................. 18
Implementation of Existing Clean Water Act Permit Requirements for CAFOs .................... 19
Chesapeake Bay Protection and Restoration ........................................................................... 21
Florida Nutrient Water Quality Standards ............................................................................... 24
Spill Prevention, Control, and Countermeasure (SPCC) Plans ............................................... 26
Energy ............................................................................................................................................ 29
Motor Vehicle and Heavy-Duty Truck GHG Rule and Corporate Average Fuel
Economy (CAFE) Standards ................................................................................................ 30
Renewable Fuels Standard (RFS2) Rule ................................................................................. 32
E15 Waiver Petition ................................................................................................................. 34
Chemicals ...................................................................................................................................... 36
Disclosure of Pesticide Inert Ingredients ................................................................................. 37
Clean Water Act Permits for Pesticide Application ................................................................. 38
Pesticide Drift Labeling ........................................................................................................... 41
Atrazine ................................................................................................................................... 43
Endangered Species Act (ESA) ............................................................................................... 45
Figures
Figure 1. Status of PM10 Nonattainment Areas .............................................................................. 13
Tables
Table 1. CRS Specialists on Environmental Issues ......................................................................... 5
Table 2. EPA Animal Population Threshold Below Which Facilities Would Not Be
Required to Report GHG Emissions ............................................................................................. 8
Contacts
Author Contact Information........................................................................................................... 47
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Introduction
A healthy agricultural industry and a healthy environment are both important to the nation.
However, agricultural production can have varying impacts on the environment. The use of both
natural resources (e.g., soil and water) and synthetic inputs (e.g., fertilizers and pesticides) in
agricultural production can sometimes create a negative impact on the surrounding ecosystem.
For example, soil erosion, farm chemical runoff, and overgrazing can affect water and air
resources. Converting grassland prairies and wetlands to crop production can impact wildlife
populations. The magnitude of these environmental impacts varies widely across the country and
changes over time.
Traditionally, farm and ranch operations have been exempt or excluded from many federal
environmental statutes and regulations, and some point out that the relative number of
environmental regulations affecting agriculture is small compared to other industries.1
Historically, environmental policies have focused on large industrial sources such as factories and
power plants, because attempting to regulate numerous individual crop and livestock operations
can be a challenge for government regulators. Therefore, the current federal farm policy
addressing environmental concerns is in large part voluntary; that is, it seeks to encourage
agricultural producers to adopt conservation practices through economic incentives. Because
natural resources are a major input into most agricultural production, many in agriculture cite the
health of the surrounding environment as being important for long-term productivity. However,
given the agricultural sector’s size in the landscape2 and its potential to affect its surrounding
environment, there is interest in both managing potential impacts of agricultural actions on the
environment and also maintaining an economically viable agricultural industry.
The U.S. Environmental Protection Agency (EPA) is the primary federal authority for
administering environmental protection policies, while the U.S. Department of Agriculture
(USDA) is the primary federal authority for incentivizing agricultural production. Most
environmental regulation, in terms of permitting, inspection, and enforcement, is done by state
and local governments, typically based on policies administered by the EPA. USDA provides both
educational outreach and technical and financial assistance opportunities for producers to
implement environmentally sustainable practices.3 While many of these voluntary programs and
policies have been in place for decades and have had considerable success, some question
whether a strictly voluntary approach to agricultural conservation generates sufficient
environmental gains.4 EPA, on the other hand, has recently received criticism from some
lawmakers and industry leaders for appearing to focus some of its recent regulatory efforts on
agriculture.5 Some claim EPA has overreached its regulatory authority.6 In general, agricultural
1 J. B. Ruhl, “Farms, Their Environmental Harms, and Environmental Law,” vol. 27, no. 2 (2000), pp. 263-350.
2 A total of 1.9 billion acres of land and water cover the contiguous 48 states, of which 71% is non-federal rural land
(nearly 1.4 billion acres). Non-federal rural lands are predominantly rangeland (409 million acres), forest land (406
million acres), and cropland (357 million acres). Source: USDA, NRCS, 2007 National Resources Inventory, Summary
Report, Washington, DC, December 2009, p. 6, http://www.nrcs.usda.gov/technical/NRI/2007/
2007_NRI_Summary.pdf.
3 For more information, see CRS Report R40763, Agricultural Conservation: A Guide to Programs.
4 Michelle Perez, Craig Cox, and Ken Cook, Facing Facts in the Chesapeake Bay, Environmental Working Group,
September 2009, http://www.ewg.org/files/chesapeake-bay-pollution.pdf.
5 Examples of congressional press releases and letters regarding EPA may be found here: Sen. Chambliss and Sen.
Roberts, http://chambliss.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=f7607094-43ca-45c6-
(continued...)
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industry groups, among others, have been vocal in their displeasure with recent EPA regulatory
proposals and the costs associated with protecting public health and the environment. Others,
such as environmental groups, have supported some of the regulatory actions and in some
instances voiced concerns that the federal actions may not go far enough in protecting public
health and the environment. Some lawmakers have offered statements that support various EPA
regulatory efforts.7
Criticisms of the regulatory actions are reflected in recent legislative proposals that would restrict
or prohibit certain actions.8 Beyond the criticism of individual regulations of EPA and other
agencies, there also are calls for broad regulatory reforms, for example, to reinforce the role of
economic considerations in agency decision making or to increase Congress’s role in approving
or disapproving regulatory decisions. Congress will likely continue to give attention to EPA’s and
other federal agencies’ roles in regulating environmental protection. Both the Senate and House
Committees on Agriculture have shown particular interest in EPA’s actions and conducted
oversight hearings on regulatory impacts on agriculture during the 112th Congress.9
Report Content and Caveats
This report provides the background, status, and issues related to selected environmental
regulations or initiatives possibly affecting agriculture that have drawn attention in and beyond
Congress.10 An issue’s inclusion in this report is not intended to suggest or imply that the
regulation or action has either a beneficial or harmful effect on agriculture or to what degree.
Similarly, regulatory actions not included in this report do not indicate the lack of potential
impact on the agriculture sector.
This report only addresses federal regulatory actions. In many cases, constraints on agricultural
production to reduce pollution emissions arise at the state level in response to local concerns.
State and local regulations are not specifically included in this report, but may be discussed
generally where appropriate. Actions considered voluntary or in response to regulatory actions are
(...continued)
a789-3f91e18e1cca&ContentType_id=5c81ba67-be20-4229-a615-966ecb0ccad6&Group_id=29a81778-8944-46e0-
a550-9d034534e70a; Senator David Vitter, http://epw.senate.gov/public/index.cfm?FuseAction=
Minority.PressReleases&ContentRecord_id=bb4696b1-cb4d-0f5d-d5d6-6761db981a43&Region_id=&Issue_id=; and
November 21, 2012, letter from 47 Members of the House of Representatives, http://latta.house.gov/uploadedfiles/
2012_11_29_final_pm2_5_letter_signed_w_attchmt.pdf.
6 The Wall Street Journal, “The EPA Permitorium,” editorial, November 22, 2010.
7 Examples of congressional press releases include Senator Robert Casey, http://www.casey.senate.gov/issues/issue/?
id=076105fb-745f-4288-aa5e-7bd0a449a905; Senator Barbara Boxer, http://www.epw.senate.gov/public/index.cfm?
FuseAction=Majority.PressReleases&ContentRecord_id=6eaaee53-802a-23ad-48f7-99bed3c4d3ea.
8 For example, the House-passed long-term continuing resolution H.R. 1, which was not enacted, is discussed further
below. For more information, see CRS Report R41698, H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of
Environmental Protection Agency (EPA) Provisions.
9 For example, U.S. Congress, Senate Committee on Agriculture, Nutrition, and Forestry, Oversight Hearing to
Examine the Impact of EPA Regulation on Agriculture, 111th Cong., 2nd sess., September 23, 2010; and U.S. Congress,
House Committee on Agriculture, Public Hearing to Review the Impact of EPA Regulation on Agriculture, 112th
Cong., 1st sess., March 10, 2011.
10 For additional information regarding EPA regulations beyond those affecting agriculture, see CRS Report R41561,
EPA Regulations: Too Much, Too Little, or On Track?.
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also not included. This means that many USDA programs and initiatives, which offer funding to
agricultural producers mitigate environmental impacts, are not discussed in this report.
The majority of the regulations discussed in this report are administered by EPA, though not all.
In some cases, agriculture is the direct or primary focus of the regulatory actions. In other cases,
agriculture is one of many affected sectors. In many cases, for a regulation to become effective,
EPA rules must be adopted by states to which the program has been delegated (e.g., most
environmental permitting programs are delegated to qualified states). Moreover, many states
require that the state legislature review new regulations before the new rules would take effect.
The general regulatory development and compliance process can be tedious and complex. In
some cases, the promulgation and implementation of regulations may take years.11 In the case of
some environmental regulations, the agencies must adhere to court-ordered requirements and
deadlines.12
General Options for Congress
An important role of most congressional committees is to conduct oversight hearings on agency
activities and programs under their jurisdiction. This has occurred in the 112th Congress, and
given the interest in the issues described in this report, it is likely that oversight hearings will
continue. If Congress decides to explore the way federal agencies regulate environmental issues,
there are at least four sets of options available.
One option is the Congressional Review Act (CRA).13 The CRA establishes special congressional
procedures for disapproving a broad range of regulatory rules issued by federal agencies. Before
any rule covered by CRA can take effect, the federal agency that promulgates the rule must
submit it to Congress. If Congress passes a joint resolution disapproving the rule under
procedures provided by the act, and the resolution becomes law, the rule cannot take effect or
continue in effect. Also, the agency may not reissue either that rule or any substantially similar
one, except under authority of a subsequently enacted law. The path to enactment of such a
resolution could be a steep one and still subject to presidential veto. Overriding a veto requires a
two-thirds majority in both the House and Senate.14
Another, more comprehensive option would be to amend current law to modify the regulating
agency’s authority, either to restrict an action or to require additional action. Bills using this
approach in connection with some environmental regulatory issues were introduced in the 111th
Congress but were not enacted.15 While this might be the preferred option by some, including the
11 Some regulations do not become effective immediately. In some cases, the regulation takes effect over time or
gradually expands to affect more individuals. Virtually all major EPA regulatory actions are subjected to court
challenge, which also delays the implementation.
12 Court-ordered dates for proposed or promulgated regulations may change. It is not uncommon for EPA to request
extensions of time, often due to the need to analyze extensive comments.
13 5 U.S.C. §§801-808.
14 For additional information on the Congressional Review Act, see CRS Report RL31160, Disapproval of Regulations
by Congress: Procedure Under the Congressional Review Act.
15 An example of a bill requiring an agency to take action is House-passed H.R. 2454, along with S. 1733, reported by
the Senate Environment and Public Works Committee. These bills would have amended the Clean Air Act (CAA) to
establish an economy-wide cap-and-trade program for greenhouse gases (GHGs) and HFCs, preserved EPA’s authority
to regulate GHG emissions, and required new standards for uncapped major sources of GHGs, among other things.
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Administration, the challenges associated with crafting the specifics of a bill acceptable to a
majority could remain difficult.16 From an agricultural perspective, this option may be even more
challenging. While committees may exert certain oversight powers, there are jurisdictional issues
to be considered.17 In many cases environmental laws with potential to affect agriculture originate
outside of the House and Senate Agriculture Committees. Although the issues associated with
agriculture could still be of interest within other committees, it might not be a central focus. On
the other hand, agricultural interests in Congress have achieved some previous success on cross-
jurisdictional issues.18
To provide a more detailed response to the issue than what might be permitted under the CRA, a
third option would be to introduce freestanding legislation. By specifically identifying issues and
prescribing regulatory direction, stand-alone legislation may address many of the issues with the
current regulatory approach but still face challenges similar to those of amending existing law.
While freestanding legislation could also amend existing law, this option may be designed to be
more acceptable to Members willing to consider a delay of regulatory action, as opposed to
overturning or blocking regulatory action altogether.19 In effect, freestanding legislation could
buy time for additional action to be taken by Congress.
Another option that Congress could consider is to include amendments to an agency’s
appropriations bill to prevent funds from being used for specific actions. For example, this was
done in the FY2010 Interior, Environment, and Related Agencies Appropriations Act,20 in which
provisions restricted or prohibited the use of EPA funds for certain climate change regulatory
activities affecting livestock operations. Because neither the House nor the Senate Appropriations
Committees reported FY2011 EPA appropriations in the 111th Congress, these provisions from
FY2010 appropriations were carried forward and the restricting provisions remained in effect
under the multiple continuing resolutions (CRs). Additional restrictions were present in H.R. 1,
the House-passed full-year CR for FY2011. As passed by the House, the bill included specific
funding levels for a number of EPA accounts and activities. It also contained more than 20
provisions restricting or prohibiting the use of appropriated funds to implement various regulatory
activities under the EPA’s jurisdiction—including many discussed in this report. On March 9,
2011, the Senate failed to approve House-passed H.R. 1 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.21 Although Congress did not include the
16 One example of a bill in the 112th Congress that would restrict an agency’s actions is H.R. 872, which would amend
the Federal Insecticide, Fungicide, and Rodenticide Act and the Clean Water Act’s regulation of pesticide use, among
other purposes. The bill was incorporated into the House Agriculture Committee-passed farm bill reauthorization bill
(H.R. 6083), which did not reach the House floor.
17 For additional information on committee jurisdiction, see CRS Report 98-175, House Committee Jurisdiction and
Referral: Rules and Practice and CRS Report 98-242, Committee Jurisdiction and Referral in the Senate.
18 For example, in the 111th Congress a Manager’s Amendment to major climate change legislation added a full title
specifically directed toward agriculture. Title V of H.R. 2454 created an offset program for agriculture and forestry
related practices to be run by USDA, rather than EPA.
19 An example of freestanding legislation proposed in the 112th Congress is H.R. 910 and its Senate counter part, S.
482. These bills known as the Energy Tax Prevention Act of 2011, would restrict EPA authority and repeal a dozen
EPA regulatory actions dealing with GHGs. The House Energy and Commerce Committee approved H.R. 910 and the
Senate counterpart (S. 482) was debated as an amendment to S. 493 but was not agreed to.
20 P.L. 111-88, for additional information, see CRS Report R41149, Environmental Protection Agency (EPA):
Appropriations for FY2011.
21 For information, see CRS Report R41698, H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of
Environmental Protection Agency (EPA) Provisions.
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House provisions in the enacted FY2011 legislation (P.L. 112-10), a number of these
environmental regulatory issues remain prominent topics of debate as Congress deliberates
appropriations and other proposed legislation regarding EPA’s authorities.
Subsequently, in reporting H.R. 2584, which would have provided EPA funding for FY2012, the
House Appropriations Committee included more than 25 provisions intended to restrict or
preclude the use of funds to proceed with recent or pending EPA regulatory actions.22 However,
these provisions were not included in the final appropriation (P.L. 112-74, enacted in December
2011).23 Several recent and pending EPA regulatory actions continued to be controversial in the
FY2013 appropriations. H.R. 6091, as reported, included a number of provisions (similar to those
considered in the FY2012 appropriations debate, some of which were adopted for FY2012) that
would have restricted the use of funding for the development, implementation, and enforcement
of certain EPA actions that cut across the various pollution control statutes’ programs and
initiatives. These provisions were not included in the continuing resolution for FY2013 (P.L. 112-
175) as enacted.24
Report Organization
The remainder of this report is organized under four broad subheadings: Air, Water, Energy, and
Chemicals. Each section includes selected regulatory actions and provides background
information and statutory authority, followed by the current status of the rule or regulatory action
and issues identified or raised by the agricultural community regarding the regulatory action.
Finally, each section identifies the appropriate CRS specialist for additional information; these
contacts are also listed in Table 1.
Table 1. CRS Specialists on Environmental Issues
Issue Area
CRS Specialist
Contact Information
Clean Water Act
Claudia Copeland
ccopeland@crs.loc.gov, 7-7227
Endangered Species Act
Lynne Corn
lcorn@crs.loc.gov, 7-7267
Clean Air Act, particulate matter
Rob Esworthy
resworthy@crs.loc.gov, 7-7236
Clean Air Act
Jim McCarthy
jmccarthy@crs.loc.gov, 7-7225
Spill prevention
Jonathan Ramseur
jramseur@crs.loc.gov, 7-7919
Toxic Substances Control Act, pesticides
Linda-Jo Schierow
lschierow@crs.loc.gov, 7-7279
Agriculture-based biofuels, ethanol
Randy Schnepf
rschnepf@crs.loc.gov, 7-4277
Voluntary agriculture conservation
Megan Stubbs
mstubbs@crs.loc.gov, 7-8707
Clean Air Act, mobile sources, biofuels
Brent Yacobucci
byacobucci@crs.loc.gov, 7-9662
22 See CRS Report R41979, Environmental Protection Agency (EPA) FY2012 Appropriations: Overview of Provisions
in H.R. 2584 as Reported.
23 See CRS Report R42332, Environmental Protection Agency (EPA) FY2012 Appropriations.
24 See CRS Report R42520, Environmental Protection Agency (EPA): Appropriations for FY2013.
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Air
Agricultural production practices from both livestock and crop operations generate a variety of
substances that enter the atmosphere, potentially creating health and environmental issues.
Agriculture’s effect on air quality rose to national importance in the 1930s, when the conversion
of native grasslands to cropland caused severe dust storms known as the Dust Bowl. The federal
response to this phenomenon created many of the conservation outreach and education programs
that remain in place today.25 While dust storms of this proportion are rare in the United States
today, issues associated with soil erosion, particulates and farm chemical emissions, and livestock
odor are still of concern.
The following section covers five federal regulations relating to air, including:
• mandatory reporting of greenhouse gases (GHGs);
• GHG emissions tailoring rule and the “cow tax”;
• reductions of emissions from gasoline/diesel powered stationary engines;
• national ambient air quality standards (particulate matter and ozone); and
• Emergency Planning and Community Right-to-Know Act (EPCRA) and
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) reporting requirements.
Mandatory Reporting of Greenhouse Gases (GHGs)
EPA was required by the FY2008 Consolidated Appropriations Act26 “to develop and publish a ...
final rule not later than 18 months after the date of enactment of this Act, to require mandatory
reporting of greenhouse gas (GHG) emissions above appropriate thresholds in all sectors of the
economy of the United States.”
On October 30, 2009, EPA promulgated the final Greenhouse Gas Reporting Rule.27 The rule
required suppliers of fossil fuels or industrial gases, manufacturers of vehicles and engines,
owners or operators of electric power plants, and other—mostly industrial—sources to report
their emissions of GHGs to EPA annually, beginning in 2011. Covered entities are required to
report to EPA if they emit 25,000 tons or more of carbon dioxide or the equivalent amount of five
other GHGs (methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur
hexafluoride and other fluorinated gases). About 10,000 facilities in 31 categories of sources were
covered by the rule, as promulgated. EPA subsequently added 11 other categories of sources.
25 For additional information, see CRS Report RL34069, Technical Assistance for Agriculture Conservation.
26 P.L. 110-161.
27 U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases,” 74 Federal Register 56260,
October 30, 2009.
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Status
The only agricultural sources covered by the Reporting Rule are manure management systems
that emit methane and nitrous oxide in amounts greater than the reporting threshold. EPA
identified six specific categories of agricultural sources that could be subject to the rule: beef
cattle feedlots; dairy cattle and milk production facilities; hog and pig farms; chicken egg
production facilities; turkey production; and broilers and other meat type chicken production. In
all, EPA estimates that 107 livestock facilities nationwide would need to report under the rule.
In EPA’s FY2010 appropriations act,28 however, Congress included language barring EPA from
using funds under that act to implement mandatory GHG reporting by manure management
facilities. This prohibition has been carried over into FY2011, FY2012, and FY2013 by the
continuing resolutions that funded EPA’s continued operation and by the Consolidated
Appropriations Act for FY2012, P.L. 112-74. Therefore, despite the inclusion of manure
management systems among the regulated entities, no agricultural sources are currently required
to comply with the Reporting Rule.
Issues
For the facilities required to report, the rule imposes little cost because it only requires monitoring
and reporting, and the monitoring does not require direct measurement of emissions. EPA
considered requiring direct measurement of GHG emissions from manure management systems,
but rejected the approach due to what it termed “the extreme expense and complexity of such a
measurement program.”29 Instead, the agency promulgated an approach that allows the use of
default factors, such as a system emission factor, for certain elements of the calculation,
combined with the use of site-specific data (e.g., number of livestock). EPA estimated the total
annual cost of the rule for the 107 potentially affected manure management facilities at $300,000.
In comments on the proposed rule, a number of agricultural stakeholders noted that agriculture as
a whole is responsible for less than 1% of total GHGs emitted and questioned why manure
management systems in particular were included in the proposal. Other categories of agricultural
sources, such as livestock enteric fermentation and soil management, emit larger amounts of
methane and nitrous oxide. EPA explained that it did not include reporting by the other
agriculture categories because, for those sources, no direct GHG emission measurement methods
are available except for expensive and complex equipment. Using emissions estimates for such
sources, instead of direct measurement, would have a high degree of uncertainty and could
burden a large number of small emitters.
Commenters also expressed concern about the difficulty that livestock facilities might have in
determining whether or not they are subject to the rule. In response, EPA modified the proposal to
remove manure sampling requirements and instead will allow facilities to use default values for
estimating emissions. The threshold table within the final rule (Table 2) identifies animal
population threshold levels below which facilities are not required to report emissions.
28 Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010, P.L. 111-88.
29 U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases,” 74 Federal Register 56339,
October 30, 2009.
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CRS Contacts
Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227,
ccopeland@crs.loc.gov, or Jim McCarthy, Specialist in Environmental Policy, 7-7225,
jmccarthy@crs.loc.gov.
Table 2. EPA Animal Population Threshold Below Which Facilities Would Not Be
Required to Report GHG Emissions
Animal Group
Average Animal
Population (Head)
Beef
29,300
Dairy
3,200
Swine
34,100
Poultry:
Layers
723,600
Broilers
38,160,000
Turkeys
7,710,000
Source: U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases,” 74 Federal
Register 56485, October 30, 2009.
Notes: For all animal groups except dairy, the average annual animal population represents the total number of
animals present at the facility. For dairy facilities, the average annual animal population represents the number of
mature dairy cows present at the facility. For additional information, see Table JJ-1of the Environmental
Protection Agency, “Mandatory Reporting of Greenhouse Gases,” 74 Federal Register 56485, October 30, 2009.
GHG Emissions Tailoring Rule and the “Cow Tax”
EPA promulgated standards for GHG emissions from new light duty motor vehicles on May 7,
2010 (see “Motor Vehicle and Heavy-Duty Truck GHG Rule and Corporate Average Fuel
Economy (CAFE) Standards,” below).30 The standards themselves are not considered particularly
controversial, but their implementation, on January 2, 2011, triggered two other requirements of
the Clean Air Act (CAA) that apply to stationary sources. The first of these is a requirement that
stationary sources emitting any air pollutant “subject to regulation” under the act must obtain a
permit under Title V of the CAA (Title V permit) if they emit more than 100 tons per year of the
pollutant subject to regulation. Agricultural sources, such as confined animal feeding operations
(CAFOs), are among those that could potentially be subject to this permit requirement. Because
permit applicants must pay a fee to cover the costs of administering the permit program, many in
the agriculture community have referred to this requirement as the “cow tax.”
The second requirement triggered by implementation of the motor vehicle standards is a
requirement that new or modified stationary sources emitting more than 100 or 250 tons annually
of any pollutant subject to regulation under the act must obtain pre-construction permits (referred
to as “PSD” permits) and install Best Available Control Technology (BACT) to reduce emissions.
30 U.S. Environmental Protection Agency, U.S. Department of Transportation, “Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average Fuel Economy Standards; Final Rule,” 75 Federal Register 25324-25728,
May 7, 2010.
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Status
On June 3, 2010, EPA promulgated a rule that sets higher thresholds for the Title V permit and
PSD/BACT requirements that would apply to GHG emissions.31 EPA says that under the
promulgated rule, the agency has not identified any agricultural sources that would be required to
obtain permits for GHG emissions, and therefore none would be subject to BACT requirements.32
Under the rule, called the GHG “Tailoring Rule,” the threshold initially is annual emissions of
75,000 tons of carbon dioxide equivalents, not 100 or 250 tons as required for other pollutants by
the PSD and Title V permits. With this threshold, 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 in all, or nearly 70% of the nation’s largest stationary
source GHG emitters), are the only sources required to obtain permits. Farms, smaller businesses,
and large residential structures (about 6 million sources in all these categories), which would
otherwise be required to obtain permits after GHGs became subject to regulation, are shielded
from permitting requirements, including permit fees.
The June 2010 Tailoring Rule does not permanently exempt smaller sources. In promulgating the
rule, EPA said it expected to lower the threshold, but not below 50,000 tons of GHG emissions,
through separate rule-making that would take effect in 2013. The agency has subsequently
decided not to lower the threshold and has also stated that, within five years of the rule’s
promulgation, EPA and state permitting authorities would conduct a study of the permitting
authorities’ ability to administer more inclusive PSD and Title V permit programs. Within a year
of the study’s completion, EPA and state permitting authorities would conduct rulemaking for this
phase of the program. The study might confirm the threshold, revise it, or establish other
streamlining techniques for subsequent permitting activity. It is unclear how agricultural sources
might be affected by these potential rule changes.
In the FY2010 appropriations act for EPA,33 Congress included a provision prohibiting EPA from
using funds under the act to promulgate or implement any rule requiring the issuance of CAA
Title V permits for GHG emissions associated with livestock production. This prohibition was
carried over into FY2011, FY2012, and FY2013 by the subsequent appropriations measures that
fund EPA’s continued operation.
Issues
The issues related to the Tailoring Rule are similar to those raised by the “Mandatory Reporting
of Greenhouse Gases (GHGs),” discussed above. The rule itself appears to exempt all agricultural
sources by its high thresholds and the exclusion of fugitive emissions, but many are concerned
31 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.
32 EPA Briefing on the Tailoring Rule, House Energy and Commerce Committee, May 14, 2010. This issue is also
discussed in RTI International, for U.S. EPA, “Regulatory Impact Analysis for the Final Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule,” Final Report, May 2010, pp. 64-66, at http://www.epa.gov/
ttn/ecas/regdata/RIAs/riatailoring.pdf. A key reason that agricultural sources would not require permits is that EPA
excludes what are called “fugitive emissions” from the emissions used to determine whether an agricultural source is a
major source subject to permit requirements. Fugitive emissions are emissions that are not released through a stack or
vent, or could not be reasonably collected and released through a stack or vent.
33 P.L. 111-88.
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about whether EPA intends to consider any agricultural sources as subject to regulation under
future Clean Air Act GHG rules.
CRS Contacts
Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227,
ccopeland@crs.loc.gov, or Jim McCarthy, Specialist in Environmental Policy, 7-7225,
jmccarthy@crs.loc.gov.
Reduction of Emissions from Gasoline/Diesel Powered Stationary
Engines
On June 15, 2004, EPA promulgated emission control standards for hazardous air pollutants
emitted by gasoline- and diesel-powered stationary engines. This is primarily of concern to
agricultural operations that rely on gas and diesel engines for irrigation pumping. The standards
are generally referred to as the RICE (Reciprocating Internal Combustion Engine) rules. Besides
setting emission standards, the rules would have exempted these engines from emission controls
during startup, shutdown, and periods of malfunction. On December 18, 2008, the D.C. Circuit
Court of Appeals ruled that the standards must address emissions during all phases of operation,
including periods of startup, shutdown, and malfunction. As a result, the court vacated and
remanded the rules to EPA.
Status
EPA subsequently divided the standards into two regulatory actions. On March 3, 2010, it issued
a final rule for existing diesel-powered stationary engines.34 The rule will apply to more than
900,000 stationary engines used as generators and to power pumps in industrial and agricultural
settings. EPA issued final emissions standards for existing stationary engines that burn gasoline,
natural gas, and landfill gas, known as spark ignition engines, on August 20, 2010.35
Issues
The proposed rules were criticized by some state permitting authorities and industry groups as
being unworkable, difficult to enforce, and perhaps unnecessary in rural settings. In response to
these comments, EPA stated that most engines used by agricultural sources are smaller than 300
horsepower, and will be subject only to required management practices (e.g., frequency of oil
changes). Catalysts or other control equipment would not be required.
CRS Contact
Jim McCarthy, Specialist in Environmental Policy, 7-7225, jmccarthy@crs.loc.gov.
34 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.
35 U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for
Reciprocating Internal Combustion Engines; Final Rule,” 75 Federal Register 51570, August 20, 2010.
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National Ambient Air Quality Standards (NAAQS)—
Particulate Matter
National Ambient Air Quality Standards (NAAQS) are standards for outdoor (ambient) air that
are intended to protect public health and welfare from harmful concentrations of pollution.
NAAQS are at the core of the Clean Air Act, even though they do not directly regulate emissions.
In essence, they are standards that define what EPA considers to be clean air. Once a NAAQS has
been set, the agency, using monitoring data and other information submitted by the states,
identifies areas that exceed the standard and must, therefore, reduce pollutant concentrations to
achieve it. After these “nonattainment” areas are identified, state and local governments have up
to three years to produce State Implementation Plans that outline the measures they will
implement to reduce the pollution levels and attain the standards.
NAAQS have been set for six pollutants. The two that affect the largest number of areas are those
for ozone and particulate matter (PM). Because some farming and livestock practices contribute
to particulate matter emissions and because particulate matter and ozone can affect agricultural
productivity, the agricultural community continues to show particular interest in these standards.
NAAQS ozone issues are discussed in the next section.
Status
Partially in response to an order by the U.S. District Circuit Court for the District of Columbia,36
and as agreed to in a consent decree,37 EPA published a final rule revising the PM NAAQS
January 15, 2013. The January 2013 revisions change the existing (2006) annual health-based
(“primary”) standard for “fine” particulate matter 2.5 micrometers or less in diameter (PM2.5),
lowering the allowable average concentration of PM2.5 in the air from the current level of 15
micrograms per cubic meter (µg/m3) to a limit of 12 µg/m3. The existing “24-hour primary
standard” for PM2.5 that was reduced from 65 µg/m3 to 35 µg/m3 in 2006 was retained, as was the
existing standard for larger, but still inhalable, “coarse” particles less than 10 micrometers in
diameter, or PM10.
This EPA periodic review of the PM standards as mandated by statute38 was initiated as
implementation of the current 2006 PM NAAQS continues. EPA promulgated its previous final
revisions to the PM NAAQS and the associated national air quality monitoring requirements on
October 17, 2006,39 primarily strengthening the preexisting (1997) PM2.5. The 2006 PM NAAQS
36 American Lung Ass'n v. EPA, D.D.C., No. 1:12-cv-243, order issued June 6, 2012.
37 American Lung Ass’n v. EPA, D.D.C., No. 1:12-cv-243, order signed September 4, 2012. See also U.S. EPA,
“Proposed Consent Decree,” 77 Federal Register 38060, June 26, 2012, http://www.gpo.gov/fdsys/search/
pagedetails.action?granuleId=2012-15603&packageId=FR-2012-06-26&acCode=FR, and American Lung Ass'n v.
EPA, D.D.C., No. 1:12-cv-243, joint motion filed June 5, 2012.
38 Section 109(d)(1) of the Clean Air Act requires EPA to review the NAAQS and the scientific information upon
which they are based at five-year intervals.
39 U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Particulate Matter,” 71 Federal
Register 61144-61233, October 17, 2006; and U.S. Environmental Protection Agency, “Revisions to Ambient Air
Monitoring Regulations,” 71 Federal Register 61236-61238, October 17, 2006. EPA indicated that it would be
expanding its research and monitoring programs to collect additional evidence on the differences between thoracic
coarse particles typically found in urban areas and those typically found in rural areas. Some stakeholders have
expressed concern about EPA’s monitoring efforts in rural areas and the future implications monitoring results could
have for those areas. Currently, EPA has stated that its monitoring efforts to measure PM are primarily research-driven
(continued...)
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revisions did not strengthen the existing annual standard for PM10.40 Several states and industry,
agriculture, business, and environmental and public health advocacy groups petitioned the U.S.
Court of Appeals for the District of Columbia Circuit, challenging certain aspects of EPA’s 2006
revisions. A February 24, 2009, decision by the D.C. Circuit granted the petitions, in part, while
denying other challenges. The court did not vacate the PM standards but remanded certain aspects
of the annual PM2.5 NAAQS standard to EPA for reconsideration.41
Revising PM NAAQS starts a process that includes a determination of areas in each state that
exceed the standard and must therefore reduce pollutant concentrations to achieve it. Following
determinations of these “nonattainment” areas based on multiple years of monitoring data and
other factors, state and local governments must develop (or revise) State Implementation Plans
(SIPs) outlining measures to attain the standard. Based on statutory scheduling requirements,
nonattainment designations for revised PM NAAQS would not be determined until the end of
2014, and states would have until at least 2020 to achieve compliance with the January 2013
revised PM2.5 NAAQS. Based on anticipated reductions associated with several other existing
national air pollution control regulations and programs, EPA predicted that seven counties in
California would be the only areas unable to meet the new PM2.5 primary standard by 2020.
The 2006 revised NAAQS, which are now being implemented, primarily affect urban areas: 120
counties and portions of counties in 18 states have been designated nonattainment areas for PM2.5
by EPA based on 2006-2008 air quality monitoring data. Final designations for the 2006 PM
NAAQS were published November 13, 2009. The majority of the roughly 3,000 counties
throughout the United States (including tribal lands) were designated attainment/unclassifiable,
and are not required to impose additional emission control measures to reduce PM2.5. For those
120 counties designated nonattainment for PM2.5, states have until November 2012 to submit state
implementation plans (SIPs) identifying specific regulations and emission control requirements
that would bring an area into compliance with the standard.42
The EPA will not be designating any new nonattainment areas for PM10 NAAQS since the
standards were not strengthened by the 2013 NAAQS revision. Similarly, EPA did not designate
any new areas for PM10 following the 2006 final PM NAAQS revisions. To the contrary, a
number of counties previously designated nonattainment have been determined by EPA to be in
attainment since the 2006 NAAQS revisions. As indicated in Figure 1, below, the majority of the
counties throughout the United States (including tribal lands) are designated
attainment/unclassifiable for the PM10 NAAQS. As of March 8, 2013, 43 of the original 88 areas
designated nonattainment for PM10 had been redesignated to maintenance.43 As shown in Figure
1, the remaining 45 areas are either meeting the PM10 NAAQS based on assessment of 2009-2011
air quality data (most recent three years available) and awaiting consideration for redesignation,
(...continued)
for the purpose of establishing necessary scientific criteria, and not for enforcement purposes.
40 For additional information, see CRS Report RL34762, The National Ambient Air Quality Standards (NAAQS) for
Particulate Matter (PM): EPA’s 2006 Revisions and Associated Issues.
41 The court remanded the primary annual PM2.5 standard and the secondary PM2.5 standards to EPA. The court upheld
EPA’s decision to retain the 24-hour PM10 standard to provide protection from thoracic coarse particle exposures and to
revoke the annual PM10 standard (American Farm Bureau Federation v. U.S. EPA, No. 06-1410, D.C. Cir., February
24, 2009).
42 For additional information, see CRS Report R40096, 2006 National Ambient Air Quality Standards (NAAQS) for
Fine Particulate Matter (PM2.5): Designating Nonattainment Areas.
43 See EPA’s PM10 designations at http://www.epa.gov/air/oaqps/greenbk/pindex.html.
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have incomplete data, or remain nonattainment.44 Those areas previously designated
nonattainment for the PM10 NAAQS typically include, or were adjacent to, densely populated
localities, where PM monitors are frequently located. Only a subset of PM10 NAAQS
nonattainment areas in California and Arizona have SIPs that directly include requirements
related specifically to agricultural operations in addition to requirements for other sources.
Figure 1. Status of PM10 Nonattainment Areas
(status is based on 2009-2011 air quality; many areas are indicated as only portions of counties)
Source: Provided directly to CRS by EPA’s Office of Air Quality Planning and Standards, March 2013.
Notes: Nonattainment area status as identified on the map is based on 2009-2011 air quality data, the most
currently available three-year dataset at the time the determinations were made. Areas not highlighted on the
map are designated attainment/unclassifiable. There are no PM10 nonattainment areas in Hawaii, which was not
included on the map as provided by EPA. For more information, see CRS Report RL34762, The National Ambient
Air Quality Standards (NAAQS) for Particulate Matter (PM): EPA’s 2006 Revisions and Associated Issues.
44 According to information provided to CRS by EPA’s Office of Air Quality Planning and Standards (OAQPS) on
April 23, 2012, 13 areas are meeting the PM10 NAAQS based on 2008-2010 air quality data. States have submitted
maintenance plans for 5 of these 13, and EPA has published clean data determinations for an additional 2 (of the 13)
areas to suspend the PM10 attainment plan requirement. Additionally, 19 areas have incomplete data and 13 areas
remain nonattainment based on 2008-2010 air quality data.
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Issues
The agricultural community has generally been more concerned with EPA’s review and potential
changes of the PM10 NAAQS than with the PM2.5 NAAQS.45 Thoracic coarse particles (PM10) are
generally emitted as a result of mechanical processes that crush or grind larger particles or the
resuspension of dusts.46 While certain agricultural operations can contribute to emission of
PM10—sometimes referred to as “farm dust”— there are many sources of thoracic coarse
particles, for example, unpaved and paved roads, traffic-related emissions such as tire and brake
lining materials, direct emissions from industrial operations, construction and demolition
activities, and mining operations. EPA has noted that atmospheric science and monitoring
information indicates that exposures to PM10 tend to be higher in urban areas than in nearby rural
locations.47 Urban or industrial ambient mixes of PM10 dominated by high-density vehicular,
industrial, and construction emissions have been the primary concern with respect to reducing the
negative health effects. EPA continues to research the link between coarse particle composition
and toxicity, including the toxicity of urban versus rural particles.
On April 22, 2011, EPA released a final staff policy assessment as part of its ongoing PM
NAAQS review.48 This assessment, which addressed both fine (PM2.5) and coarse (PM10)
particulates, summarized EPA staff conclusions regarding the broadest range of policy options
based on available scientific evidence, air quality assessments, and analyses. With regard to PM10,
EPA staff concluded that it would be appropriate to consider either retaining or revising the
current 24-hour (daily) PM10 standard, depending on the weight placed on the evidence and its
associated uncertainties and limitations. The Clean Air Scientific Advisory Committee (CASAC)
did not initially support retaining the current primary PM10 standard and recommended
consideration of revising the standard in order to increase public health protection.49
In letters to the EPA Administrator50 and during oversight hearings,51 some Members of the 112th
Congress raised concerns about EPA’s staff draft reports, CASAC recommendations, and the
potential impacts that tightening the PM10 NAAQS standards could have on the agricultural
45 There was some concern regarding designations in rural areas for the 2006 PM2.5 NAAQS. The designated
nonattainment areas for the PM2.5 are primarily concentrated in and around highly populated metropolitan areas.
46 U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Particulate Matter,” 71 Federal
Register 61146, October 17, 2006.
47 U.S. Environmental Protection Agency, “Review of the National Ambient Air Quality Standards for Particulate
Matter: Policy Assessment of Scientific and Technical Information,” p. 2-36, OAQPS Staff Paper EPA-452/R-05-005a,
December 2005, http://www.epa.gov/ttn/naaqs/standards/pm/data/pmstaffpaper_20051221.pdf.
48 U.S. Environmental Protection Agency, “Release of Final Document Related to the Review of the National Ambient
Air Quality Standards for Particulate Matter,” 76 Federal Register 22665, April 22, 2011, http://www.epa.gov/ttn/
naaqs/standards/pm/data/20110419pmpafinal.pdf.
49 Letter from Dr. Jonathan M. Samet, Chair, Clean Air Scientific Advisory Committee, to the Honorable Lisa P.
Jackson, EPA Administrator. CASAC Review of Policy Assessment for the Review of the PM NAAQS—Second
External Review Draft, 2010. Available at http://yosemite.epa.gov/sab/sabproduct.nsf/
264cb1227d55e02c85257402007446a4/CCF9F4C0500C500F8525779D0073C593/$File/EPA-CASAC-10-015-
unsigned.pdf.
50 Examples of letters to EPA Administrator Lisa Jackson include, but are not limited to, a joint letter from 21 Senators,
July 23, 2010, http://grassley.senate.gov/about/upload/Agriculture-07-23-10-dust-letter-to-EPA-signed-version-
doc.pdf; a joint letter from Senators Kent Conrad and Byron Dorgan and Representative Earl Pomeroy, August 5, 2010;
a joint letter from 75 House Members, September 27, 2010; and a joint letter from 99 House Members, March 29,
2011, http://fincher.house.gov/press-release/fincher-noem-call-epa-abandon-unreasonable-dust-standards.
51 See examples in footnote 9.
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industry. Many Members encouraged EPA to retain the current PM10 NAAQS standards. In
response to these concerns, and those raised by stakeholders in the agricultural community, EPA
released a fact sheet summarizing the PM10 NAAQS standards in the context of agricultural
activities52 and held six public outreach or “listening” sessions in various regions of the country to
discuss the PM NAAQS with an emphasis on the PM10 standards.53 Subsequently, in October 14,
2011, letters to members of the Senate Committee on Agriculture, Nutrition, and Forestry, the
EPA Administrator announced her intention to retain the current PM10 NAAQS standard with no
revision.54 Other Members urged the Administrator to include retaining the PM2.5 as an option for
consideration in the agency’s proposal rule.55 The January 15, 2013, final PM NAAQS rule
revised the PM2.5 standard but did not modify the standards for inhalable “coarse” particles larger
than 2.5 but smaller than 10 microns (PM10), nor were modifications to the PM10 standard
proposed in 2012.
Also during the 112th Congress, the House passed the Farm Dust Regulation Prevention Act of
2011 (H.R. 1633), which would have prohibited EPA from proposing, finalizing, implementing,
or enforcing any regulation revising primary or secondary NAAQS applicable to PM “with an
aerodynamic diameter greater than 2.5 micrometers” for one year. Further, the House-passed bill
would have amended the CAA to exempt “nuisance dust” from the act and would have excluded
nuisance dust from references in the act to particulate matter “except with respect to geographic
areas where such dust is not regulated under state, tribal, or local law.” Nuisance dust was defined
in the bill as particulate matter that
(1) is generated primarily from natural sources, unpaved roads, agricultural activities, earth
moving, or other activities typically conducted in rural areas; (2) consists primarily of soil, other
natural or biological materials, windblown dust, or some combination thereof; (3) is not emitted
directly into the ambient air from combustion, such as exhaust from combustion engines and
emissions from stationary combustion processes; (4) is not comprised of residuals from the
combustion of coal; and (5) does not include radioactive particulate matter produced from
uranium mining or processing
A general provision was also included in FY2012 House-reported EPA appropriations language
(H.R. 2584, Title IV, Section 454)56 that would have restricted the use of FY2012 appropriations
“to modify the national primary ambient air quality standard or the national secondary ambient air
quality standard applicable to coarse particulate matter (generally referred to as “PM10”).”57 No
52 “The U.S. Environmental Protection Agency’s Coarse Particulate Matter PM10 Standards and Agriculture Fact
Sheet,” February 17, 2011, http://www.epa.gov/oar/oaqps/particlepollution/agriculture.html.
53 Based on a June 9, 2011, presentation at the USDA NRCS Agricultural Air Quality Task Force Meeting, EPA
summarized the following locations for its outreach meetings: Washington, D.C., Kansas City, MO, Des Moines, IA,
Riverside, CA, Spokane, WA, and Denver, CO, http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/air/taskforce/
meetings/2010thru2012/.
54 Letter from Lisa Jackson, EPA Administrator, to Senator Debbie Stabenow and Senator Amy Klobuchar, October 14,
2011, http://www.epa.gov/air/particlepollution/actions.html.
55 See joint letter from Representatives Fred Upton, Chairman, Committee on Energy and Commerce, Ed Whitfield,
Chairman, Subcommittee on Energy and Power, and Joe Barton, Chairman Emeritus, June 6, 2012,
http://energycommerce.house.gov/press-release/energy-and-commerce-leaders-urge-epa-protect-jobs-including-
current-pm-standards.
56 The Department of the Interior, Environment, and Related Agencies Appropriations Act, 2012 (H.R. 2584, Title IV
Section 454) as reported by the House Committee on Appropriations on July 19, 2011. From July 25, 2011, to July 28,
2011, the House considered H.R. 2584 as reported July 19, 2011, but the House floor debate was suspended.
57 See CRS Report R42332, Environmental Protection Agency (EPA) FY2012 Appropriations, and CRS Report
R41979, Environmental Protection Agency (EPA) FY2012 Appropriations: Overview of Provisions in H.R. 2584 as
(continued...)
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comparable provision was retained in the Consolidated Appropriations Act, 2012 (P.L. 112-74),
enacted December 23, 2011, which ultimately included EPA’s FY2012 appropriation.
CRS Contact
Robert Esworthy, Specialist in Environmental Policy, 7-7236, resworthy@crs.loc.gov.
National Ambient Air Quality Standards (NAAQS)—Ozone58
Under the CAA, EPA is to review the science for each of the NAAQS every five years, and either
reaffirm or revise the standard. The EPA Administrator completed a review of the ozone NAAQS
in March 2008, and made both the primary (health-based) and secondary (welfare-based)
standards more stringent, but he did not set the standards within the ranges recommended by the
independent panel of scientists that advises him (i.e., CASAC). He also rejected their advice to
change the form of the secondary standard to better measure whether ozone concentrations were
above levels needed to protect crops and forests from damage.59 Challenged in court, EPA agreed
to reconsider the March 2008 decisions (court decisions are discussed further below).
Status
On January 19, 2010, EPA proposed to strengthen the primary ozone NAAQS and to revise the
form of the secondary standard as the agency’s scientific advisers had recommended. Under the
proposed revisions, the vast majority of counties with ozone monitors would be found in
nonattainment of the primary standard, using the most recent available data, and many might
violate the secondary standard, as well.
EPA expected to promulgate a final version in late summer 2011, but on September 2, 2011, the
President requested that the agency withdraw its decision without promulgating it. Instead, the
agency will continue a review that it aims to complete by 2014. EPA is also proposing new
monitoring requirements for the states, with more monitors to be placed in rural areas.60
Issues
EPA has resumed implementation of its 2008 ozone NAAQS, which affects few agricultural
areas. Despite the withdrawal of what would have been an even more stringent standard, air
(...continued)
Reported.
58 For additional background on NAAQS, see the previously discussed “National Ambient Air Quality Standards
(NAAQS)—Particulate Matter” section.
59 The damage that crops and vegetation suffer from ozone exposure is cumulative over the growing season. In order to
better measure and provide protection against these impacts, EPA staff recommended a new seasonal (3-month)
average for the secondary standard that would cumulate hourly ozone exposures for the daily 12-hour daylight window.
Previously, the secondary standard simply measured the highest individual readings for any 8-hour period. CASAC
agreed with this recommendation.
60 For additional information on the proposed standards, see CRS Report R41062, Ozone Air Quality Standards: EPA’s
Proposed Revisions.
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quality is likely to improve as a result of regulations currently being phased in for cars, trucks,
and electric power plants, among other sources.
Ultimately, the 2014 ozone NAAQS revision could be one of the more significant regulations
promulgated by EPA, and could call attention to air quality problems in agricultural areas to a far
greater extent than previous standards.
CRS Contact
Jim McCarthy, Specialist in Environmental Policy, 7-7225, jmccarthy@crs.loc.gov.
EPCRA and CERCLA Reporting Requirements
The Emergency Planning and Community Right-to-Know Act (EPCRA) and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) have
reporting requirements that are triggered when specified quantities of certain substances are
released to the environment, including ammonia and hydrogen sulfide. Both ammonia and
hydrogen sulfide are chemicals generated by livestock manure, particularly swine and poultry,
when in concentrated animal populations. Both CERCLA and EPCRA include citizen suit
provisions that have been successfully used to take legal action against poultry and swine
operations for violations of the reporting requirements of the laws. In 2005, a group of poultry
producers petitioned EPA for an exemption from EPCRA and CERCLA release reporting
requirements, arguing that releases from poultry growing operations pose little or no risk to
public health, while reporting imposes an undue burden on producers and government
responders.61
Status
In December 2008, EPA promulgated an EPCRA/CERCLA administrative reporting exemption
for air releases.62 The final rule exempts hazardous substance releases that are emitted to the air
from all livestock operations (not just poultry farms) from CERCLA’s requirement to report
releases to the air to federal officials. It provides a partial exemption for such releases from
EPCRA’s requirement to report releases to state and local emergency officials: the final rule
continues to apply EPCRA’s reporting requirement to large CAFOs (those subject to Clean Water
Act permitting, discussed below in the section on “Implementation of Existing Clean Water Act
Permit Requirements for CAFOs”), but it exempts smaller facilities. The reporting exemptions in
the final rule took effect January 20, 2009.
The 2008 rule was challenged by industry groups, including the National Pork Producers Council,
as well as environmental advocates. Industry argued that CAFOs should be exempted from all
reporting under Superfund and EPCRA because air emissions from animal feeding operations
pose no threat to public health or the environment. Environmentalists also went to court, arguing
that CAFOs should report under both laws because air emissions from animal feedings operations
61 For additional information, see CRS Report RL33691, Animal Waste and Hazardous Substances: Current Laws and
Legislative Issues.
62 U.S. Environmental Protection Agency, “CERCLA/EPCRA Administrative Reporting Exemption for Air Releases,”
73 Federal Register 76948-76960, December 18, 2008.
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do pose a public health and environmental risk. The legal challenges were consolidated in the
U.S. Court of Appeals for the District of Columbia (Waterkeeper Alliance v. EPA, D.C. Cir., No.
09-1017). In June 2010 the government asked the court to remand the 2008 rule for
reconsideration and possible modification. The court approved the government’s request in
October 2010. EPA anticipates proposing a new or revised rule, but a schedule for doing so is
uncertain. In the meantime, the rule remains in effect. According to press reports, EPA does not
plan to directly regulate air emissions from animal feeding operations, but is seeking to require
their reporting.
Legislation was introduced in the 112th Congress to exclude “manure” from the definition of
hazardous substance under CERCLA and to remove reporting liability under CERCLA and
EPCRA (H.R. 2997 and S. 1729), but no further action occurred. Proponents of the legislation
argue that Congress did not intend either of these laws to apply to agriculture and that
enforcement and regulatory mechanisms under other laws are adequate to address environmental
releases from animal agriculture. Opponents respond that enacting an exemption would severely
hamper the ability of government and citizens to know about and respond to releases of
hazardous substances caused by an animal agriculture operation.
Issues
The agriculture industry remains concerned about the potential burden on large CAFOs of
complying with the EPCRA reporting requirements, even though the final rule exempted facilities
that are not subject to Clean Water Act permitting (see “Implementation of Existing Clean Water
Act Permit Requirements for CAFOs,” below). Critics of the 2008 rule, including
environmentalists and some state air quality officials, contend that the CERCLA and EPCRA
reports provide good information about emissions that enable citizens to hold companies
accountable in terms of how toxic chemicals are managed. Similarly, the agriculture industry is
concerned about potential liability that could arise for animal operations if manure were to be
defined as a “hazardous substance.”
CRS Contact
Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227,
ccopeland@crs.loc.gov.
Water
The release of sediment, nutrients, pathogens, and pesticides from agricultural production can
degrade the quality of water resources. While it is widely believed that agriculture can have a
significant impact on water quality, there is no comprehensive national study of agriculture’s
effect on water quality.63 Several water quality assessments document degradation from
63 Marc Ribaudo and Robert Johansson, Agricultural Resources and Environmental Indicators, 2006 Edition, USDA,
ERS, Economic Information Bulletin No. (EIB-16), Washington, DC, July 2006, p. 2.2, http://www.ers.usda.gov/
publications/AREI/EIB16/Chapter2/2.2/. Periodically EPA conducts a National Water Quality Inventory that provides
a general water quality assessment based on state collected data. The information for the EPA Inventory is for a
relatively small subset of the nation’s total waters that are assessed by states and does not represent the waterbodies that
were not assessed. For additional information, see EPA, National Water Quality Inventory: Report to Congress, 2004
(continued...)
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agriculture practices; however, the extent and magnitude is difficult to measure because of its
nonpoint nature.64 Federal environmental laws, such as the Clean Water Act (CWA), largely do
not regulate agricultural actors, in many cases giving the regulatory responsibilities to the states.
Constraints on agricultural production to reduce pollution discharges typically arise at the state
level in response to local concerns.65
The following section covers four regulations relating to water, including:
• implementation of existing Clean Water Act permit requirements for CAFOs;
• Chesapeake Bay protection and restoration;
• Florida nutrient water quality standards; and
• spill prevention control and countermeasure (SPCC) plans.
Implementation of Existing Clean Water Act Permit Requirements
for CAFOs
Under the CWA, while most of agriculture is exempt from federal regulation, large CAFOs are
defined as point sources and thus are subject to the act’s prohibition against discharging pollutants
into U.S. waters without a permit. In October 2008, EPA issued a regulation to revise a 2003
CWA rule governing waste discharges from CAFOs. This action was necessitated by a 2005
federal court decision (Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005)), resulting
from challenges brought by agriculture industry groups and environmental advocacy groups that
vacated parts of the 2003 rule and remanded other parts to EPA for clarification.66 The 2008 rule
details requirements for permits, annual reports, and development of plans for handling manure
and wastewater. Parts of the rule are intended to control land application of manure and
agricultural wastewater.
Status
According to EPA, the 2008 rule applies to about 15,300 CAFOs that need permit coverage (74%
of the 20,700 CAFOs operating in 2008).67 Under the rule, CAFOs were to obtain permits and
develop and implement nutrient management plans by February 27, 2009.
(...continued)
Reporting Cycle, EPA 841-R-08-001, Washington, DC, January 2009, http://water.epa.gov/lawsregs/guidance/cwa/
305b/2004report_index.cfm.
64 Nonpoint source pollution generally refers to diffuse runoff from farms, ranches, forests and urban areas. Nonpoint
sources are also subject to natural variability (e.g., weather related events) and depend on many site-specific conditions,
such as topography, soil type, and climate.
65 Much of the federal response to water quality concerns for agriculture is primarily voluntary and incentive-based.
66 U.S. Environmental Protection Agency, “Revised National Pollutant Discharge Elimination System Permit
Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the
Waterkeeper Decision, Final Rule,” 73 Federal Register 225, November 20, 2008, pp. 70417-70486. For additional
information on EPA’s response to the court decision, see CRS Report RL33656, Animal Waste and Water Quality:
EPA’s Response to the Waterkeeper Alliance Court Decision on Regulation of CAFOs.
67 The rule specifies thresholds above which permits are required, such as animal feeding operations that stable or
confine more than 700 dairy cows, 2,500 swine weighing 55 pounds or more, or 500 horses.
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Further legal challenges followed promulgation of the 2008 revised rule. Agricultural industry
groups (although generally satisfied with the rule) filed lawsuits in several federal appellate
circuits. Environmental groups also brought a legal challenge to the rule. The various petitions
were consolidated in the U.S. Court of Appeals for the 5th Circuit. In addition, EPA officials
discussed with environmental plaintiffs possible settlement of portions of the litigation that could
involve additional regulatory changes. In December 2009, the court agreed to a joint request from
EPA and environmentalists to sever the activists’ portion of the litigation. In settling with
environmental plaintiffs, EPA agreed to issue guidance aimed at clarifying what CAFOs must do
to comply with federal clean water regulations and to help CAFO owners determine whether they
need permits; the guidance was issued in May 2010.68
In settling that part of the lawsuit, EPA also agreed to propose a rule within one year to collect
facility information from all CAFOs, such as number of types of animals, type and capacity of
manure storage or treatment process, and quantity of manure generated annually by the CAFO, in
order to provide a CAFO inventory and assist in implementing the 2008 rule. In October 2011,
EPA proposed a rule, referred to as the CAFO reporting rule, that would require CAFOs to submit
a specific set of basic operational information to EPA.69 The proposal would require CAFOs to
provide the following basic information: facility contact information; production area location;
whether the CAFO has a CWA permit; the number and type of animals at the CAFO; and the
number of acres available for land application of manure, litter, and process wastewater. EPA
proposed two reporting options. One option would require every CAFO to report the information
to EPA, unless states with authorized CWA programs choose to provide the information on behalf
of CAFOs in their state. The second option would require CAFOs in focus watersheds that have
water quality concerns associated with CAFOs to report information to EPA. Further, EPA’s
proposed reporting rule drew criticism from industry groups who contend that the agency lacks
legal authority to require CAFOs that do not discharge to report facility information.
Environmental advocates defended EPA’s authority to require non-discharging CAFOs to report,
but they said that the proposed rule falls short of what is required of EPA under the 2009
settlement agreement that forced the reporting rule.
In July 2012, after reviewing public comments, EPA decided not to promulgate a regulation.
Based on comments and responses, especially from states, EPA concluded that it can obtain much
of the desired CAFO information from federal agencies, states, and other existing data sources. It
would be more reasonable and efficient to obtain existing information from these sources, EPA
said, before determining whether to issue a rule requiring CAFOs to submit information. The
agency noted that the 2010 settlement agreement with environmental groups committed EPA to
proposing a rule, but did not commit it to any particular final action.70
The challenge to the 2008 CAFO rule by agricultural industry groups continued, even after EPA’s
settlement with environmental plaintiffs. On March 15, 2011, a federal court issued a ruling that
68 U.S. Environmental Protection Agency, Implementation Guidance on CAFO Regulations - CAFOS That Discharge
or Are Proposing to Discharge, EPA-833-R-10-006, May 27, 2010, http://www.epa.gov/npdes/pubs/
cafo_implementation_guidance.pdf.
69 U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System (NPDES) Concentrated
Animal Feeding Operation (CAFO) Reporting Rule; Proposed rule,” 76 Federal Register 65431-65458, October 21,
2011.
70 U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System (NPDES) Concentrated
Animal Feeding Operation (CAFO) Reporting Rule; Proposed Rule; Withdrawal,” 77 Federal Register 42679-42682,
July 20, 2012.
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supported industry’s challenge on several issues. The court upheld the portion of the rule
requiring a CAFO to apply for a permit if the facility has an actual discharge. However, the court
vacated aspects of the rule requiring permits for proposed discharges (permits are still required
for CAFOs that actually discharge) and allowing EPA to take enforcement action against CAFO
owners based on their failure to apply for permits.71 In July 2012, EPA modified the 2008 CAFO
regulations to conform to the court’s 2011 ruling.
Issues
The rest of the 2008 rule was not affected by the court’s March 2011 ruling and remains in effect.
The federal government did not seek a rehearing on the Fifth Circuit’s ruling, nor did it petition
the Supreme Court for a review. EPA concluded that the court’s ruling effectively simplifies
permitting by removing uncertainty about the “duty to apply” for a permit and thus is largely self-
implementing. The agency has conducted outreach to states on the effect of the ruling and is in
the process of revising the guidance that it issued in May 2010 concerning CAFOs that discharge
or propose to discharge, in view of the ruling.
A number of questions linger about implementation of the 2008 rule. For example, agricultural
industry groups are concerned that EPA regions may be providing differing interpretations of a
provision of the 2008 rule that allows farms to self-certify that they will not discharge, a finding
that allows them to avoid having to apply for a permit and protects CAFOs from liability for not
having a permit in the event of an accidental discharge. Some agricultural industry groups also
are concerned that EPA could initiate a new rulemaking that would include additional permit and
pathogen control requirements.
Separate from the 2008 CAFO rule that applies nationally, EPA is developing new CWA
requirements for CAFOs located in the Chesapeake Bay watershed (see “Chesapeake Bay
Protection and Restoration,” below), which are expected to expand the universe of regulated
CAFOs in that region and require more stringent standards for permits. Many in the agriculture
sector are concerned that these Chesapeake Bay-specific rules will be the basis for EPA to
propose revision of the broader 2008 rule.
CRS Contact
Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227,
ccopeland@crs.loc.gov.
Chesapeake Bay Protection and Restoration
Despite several decades of activity by governments, the private sector, and the general public,
efforts to improve and protect the Chesapeake Bay watershed have been insufficient to meet
restoration goals. Although some specific indicators of Bay health have improved slightly or
remained steady (such as blue crabs and underwater bay grasses), others remain at low levels of
improvement, especially water quality. Overall, the Bay and its tributaries remain in poor health,
with polluted water, reduced populations of fish and shellfish, and degraded habitat and
71 National Pork Producers Council v. U.S. EPA, 635 F.3d 738 (5th Cir. 2011).
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resources. The primary pollutants causing impairments are nutrients (nitrogen and phosphorus)
and sediment discharged from multiple urban, suburban, and rural sources around the Bay.
In May 2009, President Obama issued an executive order that declared the Bay a “national
treasure” and charged the federal government with assuming a strong leadership role in restoring
the Bay.72 The executive order established a Federal Leadership Committee for the Chesapeake
Bay to develop and implement a new strategy for protecting and restoring the Chesapeake region.
The resulting strategy, which was released in May 2010, launched major specific environmental
initiatives to establish new clean water regulations on stormwater discharges and pollution
discharges from animal feedlots in the Bay watershed, put new agricultural conservation practices
on farms in the region, and restore land and water habitat.73
According to EPA, agriculture represents the single largest source of nutrient and sediment
pollution to the Bay, with about half of agriculture’s pollutant load directly related to livestock
waste. Agriculture covers about 25% of the Bay watershed, and is the largest intensively managed
land use in the watershed. EPA believes that excess livestock waste, improperly applied
fertilizers, and certain cropland tillage practices increase nutrient and sediment discharges to the
Bay.
A central feature of the overall strategy for restoring the Bay is EPA’s establishment of a total
maximum daily load (TMDL). Section 303 of the CWA requires states to identify waters that are
impaired by pollution, even after application of pollution controls. For those waters, states must
establish a TMDL to ensure that water quality standards can be attained. A TMDL is essentially a
pollution budget, a quantitative estimate of what it takes to achieve standards, setting the
maximum amount of pollution that a waterbody can receive without violating standards. If a state
fails to do this, EPA is required by the CWA to make its own TMDL determination for the state.
Throughout the United States—including the Chesapeake Bay watershed—more than 20,000
waterways are known to be violating applicable water quality standards and to require a TMDL.74
Lawsuits have been brought with the intention of pressuring EPA and states to develop TMDLs,
including for the Chesapeake Bay because the waters of the Bay have been identified as being
impaired, that is, as not meeting applicable water quality standards. The Chesapeake Bay TMDL
is the largest single TMDL developed to date. It addresses all segments of the Bay and its tidal
tributaries that are impaired from discharges of nitrogen, phosphorus, and sediment. The goal is to
have TMDL implementation measures in place by 2025 to assure attainment and maintenance of
all applicable water quality standards. The TMDL allocates needed reductions of these pollutants
to all jurisdictions in the 64,000 square mile watershed, not to individual segments of streams or
waterbodies, as is more typical of other TMDLs prepared by states or EPA.75
As part of the TMDL development process, states are to prepare Watershed Implementation Plans
(WIPs) identifying specific reductions and control measures to achieve needed pollutant
reductions from point sources (i.e., industrial and municipal facilities and CAFOs) and nonpoint
sources (i.e., farms and forests), as well as two-year milestones to implement the plans. EPA fully
72 Executive Order 13508, “Chesapeake Bay Protection and Restoration,” 74 Federal Register 23099-23104, May 15,
2009.
73 For information, see http://www.chesapeakebay.net/news_federalstrategy.aspx?menuitem=51207.
74 For background information, see CRS Report R42752, Clean Water Act and Pollutant Total Maximum Daily Loads
(TMDLs).
75 For information on the TMDL, see http://www.epa.gov/chesapeakebaytmdl/.
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expects that states will meet commitments and milestones in the WIPs, but the agency also has
identified a number of potential actions currently available to it if a state fails to do so, including
expanding permit coverage to currently unregulated sources, requiring net improvement offsets,
conditioning EPA grants, or increasing federal enforcement in the watershed.
Status
Under a consent decree resolving some of the litigation over the Chesapeake Bay,76 EPA was
required to establish a TMDL no later than May 1, 2011. EPA issued the TMDL on December 29,
2010—ahead of its self-imposed December 31 deadline.77
Concurrent with issuance of the TMDL, the Bay watershed jurisdictions (Virginia, Maryland,
West Virginia, Delaware, Pennsylvania, and the District of Columbia) prepared Phase I WIPs,
which outlined the types of controls and best management practices (BMPs) that will be utilized
to achieve the first major goal of the TMDL: that 60% of needed practices to achieve water
quality standards will be in place by 2017. The jurisdictions have now developed Phase II WIPs,
in which they describe how they will work with specific localities within their borders over the
next five years to reduce nitrogen, phosphorus, and sediment loading into streams, lakes, and
rivers that feed into the Bay.
In the same consent decree that led to issuance of the Bay TMDL, EPA also agreed to revise CWA
permit rules for CAFOs located in the Chesapeake Bay watershed (see “Implementation of
Existing Clean Water Act Permit Requirements for CAFOs,” above). As part of the settlement,
EPA agreed to propose Bay-specific rules to expand the universe of regulated CAFOs, including
but not limited to designating an AFO as a CAFO or increasing the number of animal operations
that would qualify as CAFOs and thus require CWA permits. The settlement also stipulates that
EPA will propose more stringent permitting requirements for land application of manure, litter,
and process wastewater in the Bay watershed. Under the 2010 consent decree, EPA is required to
propose revisions to the existing CAFO rules by April 30, 2013, and to finalize the rules by June
30, 2014.
Issues
EPA’s TMDL plans and the overall federal Bay restoration strategy under the 2009 executive
order are controversial with agricultural and other groups that are concerned about the likely
mandatory nature of many of EPA’s and states’ upcoming actions. Agricultural interests are
concerned that farm operations in the Bay watershed will be subject to more regulation than
competitors in other states, putting their operations at a significant competitive disadvantage.
Many of these groups have also been concerned that the underlying scientific data and modeling
used by EPA to develop the TMDL do not fully reflect ongoing voluntary efforts by agriculture to
reduce pollutant discharges. 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, but
there has been no ruling by the courts.78 On the other hand, environmental activists in particular
76 Fowler v. U.S. EPA, Case No. 1:09-CV-00005-CKK (D.D.C.), May 10, 2010.
77 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.
78 American Farm Bureau Federation and Pennsylvania Farm Bureau v. U.S. EPA, Case No. 11-cv-0067 (United
(continued...)
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are pleased that the federal government is now asserting a leadership role to restore the Bay and
have supported legislation that would codify requirements for the Bay TMDL in the CWA, while
authorizing grants and other assistance for implementing required measures. Companion bills to
do so were introduced in the 111th Congress, while the House Agriculture Committee approved
separate legislation (H.R. 5509) that would have authorized an expanded role for USDA in Bay
restoration.
The 112th Congress showed interest in early implementation of the TMDL as well. The House
Agriculture Subcommittee on Conservation, Energy, and Forestry held oversight hearings on
March 16 and November 3, 2011. Legislation (H.R. 4153, similar to H.R. 5509 in the 111th
Congress) was introduced that would give states, not EPA, authority to set nutrient and sediment
limits for the Bay and would increase USDA’s role in Bay restoration. No legislation was enacted.
CRS Contact
Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227,
ccopeland@crs.loc.gov.
Florida Nutrient Water Quality Standards
The CWA directs states to adopt water quality standards for their waters and authorizes EPA to
promulgate new or revised standards if a state’s actions fail to meet CWA requirements. Water
quality standards consist of designated uses, criteria to protect the designated uses, and an
antidegradation statement. They serve as the framework for pollution control measures that are
specified for individual sources by states.
Status
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 issued the first phase of these
standards on November 15, 2010, establishing standards for lakes and flowing waters in the state.
The EPA rule does not establish any requirements directly applicable to regulated entities or other
sources of nutrient pollution. 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.79
The rule has not yet gone into effect, as EPA has delayed the effective date to prepare for
implementation and state efforts to develop a rule that EPA could approve. First, in response to
(...continued)
States District Court for the Middle District of Pennsylvania 2011).
79 U.S. Environmental Protection Agency, “Water Quality Standards for the State of Florida’s Lakes and Flowing
Waters; Final Rule,” 75 Federal Register 75762-75807, December 5, 2010.
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criticism of the proposed standards, EPA delayed the effective date of the 2010 rule for 15
months, to allow local governments, businesses, and the state of Florida time to review the
standards and develop implementation strategies.
Second, EPA has said all along that it prefers that Florida implement its own numeric nutrient
water quality criteria, and in June 2012 the state submitted revised standards with numeric
nutrient criteria. In response, EPA indicated to the state that the agency likely would approve the
standards, at which time the agency would initiate administrative action to repeal the 2010 federal
rule. Consequently, EPA delayed the effective date of the 2010 rule several times to allow the
state to complete its process and to avoid confusion that could occur if federal criteria became
effective while state criteria are being reviewed.
At the same time, separate legal challenges to the 2010 rule were filed in federal court by
environmental advocates, several industry groups, and Florida’s agriculture commissioner. In
February 2012, a federal court ruling largely upheld EPA’s authority and methodology in setting
numeric criteria for nutrient pollution in Florida waters, but it remanded a portion of the rule
concerning numeric criteria for streams, saying they were arbitrary and capricious.
Further, EPA’s deadline for issuing the second phase of standards, for estuaries, coastal waters,
and flowing water in the South Florida Region, also was extended several times to allow the state
to develop its own standards.
On November 30, 2012, EPA announced approval of the standards submitted by the state in June,
saying that they “make significant advancements to the approach of reducing nutrient pollution in
Florida waters.” However, because the state’s rules do not cover all of its waters (some estimate
that the rules cover about 15% of the state’s 100,000 miles of waterways), EPA at the same time
proposed two rules as required by the February 2012 federal court order. First, it proposed a rule
for the remanded portion of the 2010 federal rule, and second, it proposed a Phase II rule that
applies to estuaries and coastal waters not covered by Florida’s rules and to South Florida flowing
waters, including numeric downstream protective values for estuaries. Under the February court
order, EPA is to issue a final rule for the remand of the 2010 rule by August 13, 2013, and a final
Phase II rule by September 13, 2013. It is conceivable that these dates could change, based on
Florida’s efforts to adopt numeric nutrient water quality standards or other factors. Finally, EPA
asked the court for another extension of the effective date of those portions of the Phase I rule that
were not remanded in February (for lakes and springs) from January 6, 2013, to November 15,
2013.
Issues
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 responds that the rule is intended to ensure the
health of Florida’s waterways and its economy, because the types of water quality problems
associated with nutrients—algae blooms that are toxic to humans, fish, and animals—have
economic impacts throughout the state.
EPA estimated that the potential incremental costs associated with the rule range from $16 million
to $25 million per year, and estimated monetized benefits of $28 million per year. Many
stakeholders contend that EPA has greatly underestimated costs. In response to these criticisms,
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EPA agreed to ask the National Academy of Sciences to conduct an independent review of the
rule’s implementation cost. The requested report was released in March.80 The committee found
that EPA underestimated the cost of implementing the rule and questioned the validity of several
assumptions in EPA’s cost analysis. In particular, it found that the agency did not adequately
report on uncertainties that would affect the cost of changing from narrative to numeric water
quality standards. Members of the committee noted that a major factor in the wide range of cost
estimates was the approach taken by differing parties. EPA focused on the increase in cost from
narrative to numeric standards, not total costs, while some other stakeholder groups sought to
estimate not incremental costs, but at least some fraction of total costs, making comparisons
difficult. The report did not attempt to project the costs of the EPA or alternative rule.
Some groups also fear that EPA’s actions in Florida, which represented the first time that EPA has
established statewide numeric nutrient standards, will be a precedent for similar regulatory action
elsewhere. For example, environmental advocacy groups have petitioned or filed lawsuits seeking
to require EPA to establish numeric nutrient water quality standards in Kansas and for the
Mississippi River Basin.81 In testimony before the House Agriculture Committee in 2011, EPA
Administrator Jackson stated that EPA is not working on any federal numeric nutrient limits, and
the agency has developed guidance for its regional offices stating that addressing nutrient
pollution is a problem best handled by states through a variety of tools.82
These issues also have drawn Congress’s attention. In 2011, oversight hearings were held by
subcommittees of the House Energy and Commerce and Transportation and Infrastructure
committees, and legislation was introduced in the 112th Congress to limit EPA’s authority to
promulgate numeric nutrient criteria in Florida (S. 2115/H.R. 3856).
CRS Contact
Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227,
ccopeland@crs.loc.gov.
Spill Prevention, Control, and Countermeasure (SPCC) Plans
The CWA mandated regulations to prevent the discharge of oil from various sources.83 Pursuant
to this statutory requirement,84 EPA crafted regulations for non-transportation-related facilities in
80 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.
81 In July 2011, EPA denied the petition requesting that EPA promulgate national numeric nutrient criteria for the
United States or, alternatively, for waters of the Mississippi-Atchafalaya River Basin and northern Gulf of Mexico,
saying, “We do not believe that the comprehensive use of federal rulemaking authority is the most effective or practical
means of addressing these concerns at this time.” Environmental groups have filed a lawsuit seeking to force EPA to
issue numeric nutrient criteria, as they sought in the earlier petition.
82 “EPA Nutrient Reduction Framework Urges States to Develop Plan, Schedule for Criteria,” Daily Environment
Report, March 17, 2011, p. A-16.
83 Section 311(j)(1) of CWA.
84 And in accordance with Executive Order 11735 (August 3, 1973), granting EPA the authority to regulate non-
transportation-related onshore and offshore facilities.
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1973. Affected facilities must prepare and implement, but not submit,85 spill prevention control
and countermeasure (SPCC) plans.86 The EPA SPCC plan requirements apply to non-
transportation-related facilities that drill, produce, store, process, refine, transfer, distribute, use,
or consume oil or oil products;87 and that could reasonably be expected to discharge oil to U.S.
navigable waters or adjoining shorelines.88 Facilities, including farms,89 are subject to the rule if
they meet at least one of the following capacity thresholds: an aboveground aggregate oil storage
capacity greater than 1,320 U.S. gallons,90 or a completely buried oil storage capacity greater than
42,000 U.S. gallons.
Among other obligations, SPCC regulations require secondary containment (e.g., dikes or berms)
for certain oil-storage units; and plans must be certified by a professional engineer unless a
facility owner/operator is able to self-certify the plan.
Status
Following the passage of the Oil Pollution Act of 1990,91 EPA proposed changes and
clarifications to the SPCC regulations that were made final in July 2002.92 EPA has both extended
the 2002 rule’s compliance date (on multiple occasions) and made further amendments to the
2002 rule.93 For most types of facilities subject to SPCC requirements, the deadline for complying
with the changes made in 2002 was November 10, 2011.94 However, EPA extended the
compliance date for farms95 to May 10, 2013.96
85 A subset of high-risk facilities must submit Facility Response Plans to EPA (40 CFR §112.20)
86 U.S. Environmental Protection Agency, “Oil Pollution Prevention: Non-Transportation Related Onshore and
Offshore Facilities,” Federal Register, vol. 38, no. 237 (December 11, 1973), pp. 34164-34170.
87 Per EPA SPCC regulations, “oil,” means oil of any kind or in any form, including, but not limited to: petroleum; fuel
oil; sludge; oil refuse; oil mixed with wastes other than dredged spoil; fats, oils or greases of animal, fish, or marine
mammal origin; vegetable oils, including oil from seeds, nuts, fruits, or kernels; and other oils and greases, including
synthetic oils and mineral oils (40 C.F.R. §112.2).
88 Some of the definitions for the terms used to determine SPCC applicability may be subject to interpretation. For
example, the definition of “navigable waters” has been a subject of debate and litigation in recent years. See CRS
Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond.
89 Although the definition of facility does not specifically mention farms, farms are explicitly defined as “a facility on a
tract of land devoted to the production of crops or raising of animals, including fish, which produced and sold, or
normally would have produced and sold, $1,000 or more of agricultural products during a year.” See 40 C.F.R. §112.2.
90 Only counting containers greater than 55 gallons. 40 C.F.R. §112.1(d).
91 P.L. 101-380; 33 U.S.C. §2701 et seq.
92 U.S. Environmental Protection Agency, “Oil Pollution Prevention and Response; Non-Transportation-Related
Onshore and Offshore Facilities: Final Rule,” 67 Federal Register 47041, July 17, 2002.
93 These actions were, at least in part, related to legal challenges that followed the 2002 final rule.
94 U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Rule Compliance Date Amendment,” 75 Federal Register 63093, October 14, 2010.
95 Defined as “a facility on a tract of land devoted to the production of crops or raising of animals, including fish, which
produced and sold, or normally would have produced and sold, $1,000 or more of agricultural products during a year”
(40 CFR §112.2).
96 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.
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Note that the July 2002 final rule and subsequent amendments did not alter the requirement for
owners or operators of facilities, including farms, to maintain and to continue implementing their
SPCC plans in accordance with the SPCC regulations in effect before the 2002 rulemaking.
Issues
Many of the recent SPCC issues have involved program scope and applicability: which facilities,
materials, and equipment should be subject to SPCC requirements. In the 112th Congress, the
House passed the Farmers Undertake Environmental Land Stewardship (FUELS) Act (H.R.
3158). This act would have exempted farms from all SPCC requirements if their aggregate oil
storage capacity is 10,000 gallons or less and they have a clean spill history. In addition, the bill
would have increased the oil storage threshold that determines whether a professional engineer
must certify a facility’s SPCC plan. According to the House report (H.Rept. 112-643) for the bill,
these changes would save farmers and ranchers up to $3.4 billion.97 In the 113th Congress, an
identical bill was proposed on January 18, 2013 (H.R. 311).
In some cases, EPA appears to have taken different approaches to farms over time. For example,
in a December 2006 final rule, EPA decided to extend the SPCC plan compliance date for small
farms (i.e., total oil storage capacity of 10,000 gallons or less) “either indefinitely or until the
Agency publishes a final rule in the Federal Register establishing a new compliance date.”98 EPA
removed this provision in a June 2009 final rule, establishing the same compliance dates for
farms as for all other facilities. As noted above, the compliance date for farms is now May 10,
2013, 18 months after other facilities.
In addition, in its December 5, 2008, rulemaking,99 EPA specifically excluded farms from the
loading/unloading rack requirements.100 However, in its November 2009 final rule, EPA removed
this exclusion, concluding that “certain facilities (i.e., farms and oil production facilities) should
not be treated differently than other facilities, even if loading/unloading racks are not typically
associated with these types of facilities.”101
Several recent rulemakings included provisions that may benefit farming operations.
• In an April 2011 final rule,102 EPA exempted all milk and milk product containers
and associated piping from the SPCC requirements.103 EPA’s rationale for the
97 The report cites a study conducted by the University of Arkansas, Division of Agriculture.
98 U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Plan Requirements – Amendment: Final Rule,” 71 Federal Register 77266, December 26, 2006.
99 On December 5, 2008, EPA amended the SPCC rule to clarify certain provisions (U.S. Environmental Protection
Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Rule Requirements—Amendments:
Final Rule,” 73 Federal Register 74236, December 5, 2008.). These requirements were to become effective on
February 3, 2009. However, the incoming Obama Administration delayed the effective date of the December 2008
rulemaking for regulatory review.
100 40 C.F.R. §112.7(h).
101 U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
(SPCC) Rule - Amendments,” 74 Federal Register 58784, November 13, 2009.
102 U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
(SPCC) Rule—Amendments for Milk and Milk Product Containers,” 76 Federal Register 21652, April 18, 2011.
103 Pursuant to the CWA definition of oil, the SPCC requirements apply to petroleum-based and non-petroleum-based
oil (CWA §311(a); 33 U.S.C. 1321(a)). In a 1975 Federal Register notice, EPA clarified that its 1973 SPCC
(continued...)
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exemption is that these units are subject to industry standards for sanitation and
construction and may be regulated by other agencies, including the USDA. 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.
• In a November 2009 final rule,104 EPA exempted pesticide application equipment
and related mix containers that may currently be subject to the SPCC rule when
crop oil or adjuvant oil are added to formulations. EPA also clarifies that a nurse
tank is considered a mobile refueler, and, like other types of mobile refuelers, is
exempt from the sized secondary containment requirements. EPA estimated that
the total cost savings to farm owners and operators from these (and other)
amendments amount to $13 million on an annualized basis (2007$).105
CRS Contact
Jonathan Ramseur, Specialist in Environmental Policy, 7-7919, jramseur@crs.loc.gov.
Energy
The agricultural industry is sensitive to fluctuations in energy sources and cost. The use of fossil
fuel-based fertilizers, diesel fuel, and, more recently, corn-based ethanol all have a significant
impact on both crop and livestock operations. Since the 1970s, federal policies have offered a
variety of incentives, regulations, and programs to encourage growth in the bioenergy industry as
a sustainable alternative to fossil fuels.106 The increased emphasis on agriculture-based biofuels
has received mixed reviews within the agricultural community.107 While some continue to push
for greater federal involvement, critics of the federal intervention also have emerged.
The following section covers several federal regulations relating to energy, including:
• motor vehicle and heavy-duty truck greenhouse gas (GHG) rule and Corporate
Average Fuel Economy (CAFE) standards;
• renewable fuels standard (RFS2) rule; and
(...continued)
regulations apply to oils from animal and vegetable sources (U.S. Environmental Protection Agency, “`Oil Pollution
Prevention, Applicability of 40 CFR part 112 to Non-Petroleum Oils; Notice,” 40 Federal Register 28849, July 9,
1975). EPA subsequently stated that “milk typically contains a percentage of animal fat, which is a non-petroleum oil”
and is thus subject to SPCC provisions (U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill
Prevention, Control, and Countermeasure Rule Requirements—Amendments,” 74 Federal Register 2461, January 15,
2009.
104 U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
(SPCC) Rule - Amendments,” 74 Federal Register 58784, November 13, 2009.
105 Ibid, p. 58805.
106 For more information on agriculture-based biofuels, see CRS Report R41282, Agriculture-Based Biofuels: Overview
and Emerging Issues.
107 Examples of agriculture-based biofuels policy proponents include organizations who currently benefit directly from
policies, such as the National Corn Growers Association (corn-based ethanol) and American Soybean Association
(soybean-based biodiesel). Critics include organizations who rely on current biofuel sources for other non-fuel
purposes, such as the National Cattleman’s Beef Association and National Pork Producers Council.
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• E15 waiver petition.
Motor Vehicle and Heavy-Duty Truck GHG Rule and
Corporate Average Fuel Economy (CAFE) Standards
The Energy Policy and Conservation Act of 1975 (EPCA)108 requires car and light truck
manufacturers to meet corporate average fuel economy (CAFE) standards. The Energy
Independence and Security Act of 2007 (EISA)109 requires the National Highway Traffic Safety
Administration (NHTSA) to develop rules to tighten CAFE standards and to promulgate fuel
economy standards for medium- and heavy-duty trucks, reflecting the “maximum feasible
improvement” in fuel efficiency.
In response to a 2007 Supreme Court decision (Massachusetts v. EPA),110 EPA is required to,
among other things, determine whether GHGs from automobiles endanger public health and
welfare. On December 7, 2009, EPA issued such an “Endangerment Finding.” Thus, under the
Clean Air Act (CAA), EPA is required to promulgate rules on emissions of GHGs from motor
vehicles. Because fuel economy and vehicle GHG emissions are tightly linked, the
Administration proposed light-duty vehicle regulations in September 2009 that would integrate
fuel economy and GHG rules into one process;111 regulations for model year (MY) 2012-
MY2016 were finalized in May 2010,112 and on August 28, 2012, EPA and NHTSA finalized
further rules for MY2017-MY2025.113 On August 9, 2011, EPA and NHTSA issued integrated
GHG and fuel economy standards for medium-and heavy-duty vehicles.114
Status
On May 7, 2010, EPA and NHTSA finalized rules to integrate CAFE standards with light-duty
vehicle GHG standards. The Administration estimates that the rule will reduce lifecycle costs for
most vehicle purchasers, as the increase in purchase price roughly ($1,000) will be paid back in
roughly three years for most consumers through fuel savings. The new standards are phased in
beginning with MY2012. While the rulemaking process was combined, EPA and NHTSA have
108 P.L. 94-163.
109 P.L. 110-140.
110 See CRS Report RS22665, The Supreme Court’s Climate Change Decision: Massachusetts v. EPA.
111 U.S. Environmental Protection Agency and National Highway Traffic Safety Administration, “Proposed
Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel
Economy Standards; Proposed Rule,” 74 Federal Register 49454-49789, September 28, 2009.
112 U.S. Environmental Protection Agency and National Highway Traffic Safety Administration, “Light-Duty Vehicle
Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule,” 75 Federal
Register 25324-25728, May 7, 2010.
113 U.S. Environmental Protection Agency and National Highway Traffic Safety Administration, “2017 and Later
Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards; Final
Rule,” pre-publication version, August 28, 2012.
114 U.S. Environmental Protection Agency and National Highway Traffic Safety Administration, “Greenhouse Gas
Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles; Final Rule,”
76 Federal Register 57106-57513, September 15, 2011.
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recognized that some parts of the GHG program will not translate to the CAFE program, and vice
versa.115
In October 2010 EPA and NHTSA announced their intent to propose further regulations for
MY2017-MY2025,116 and on July 29, 2011, the agencies announced an agreement with California
and 13 automakers on the framework of new regulations, which were finalized on August 28,
2012.117 The further standards are estimated by EPA and NHTSA to raise the cost of a new
MY2025 vehicle by $1,800 above the cost of a MY2016 vehicle, although they estimate that fuel
savings from the new standards will result in a payback period of roughly three years, based on
average vehicle use.118
EPA’s endangerment finding specifically referenced medium- and heavy-duty trucks as among
sources that contribute to GHG emissions. On August 9, 2011, EPA and NHTSA finalized heavy-
duty truck GHG and fuel economy standards that will be phased in between 2014 and 2018.119
EPA and NHTSA estimate that the rules will reduce lifecycle vehicle costs, factoring in the fuel
savings and increase in purchase price.120 EPA estimates that, because of fuel savings, most truck
owners would see a payback period of one to five years.121
Issues
This issue has a somewhat indirect effect on agriculture. The fact that vehicle purchase prices are
expected to increase may affect agricultural producers who purchase cars, light trucks, and heavy
trucks for use in their businesses (including light-duty and super-duty pickups, vans, and flatbed
trucks). While for most purchasers those increases will be offset by lower fuel expenditures over
the lifetime of these vehicles, the increase in up-front costs may influence some agricultural
producers’ decisions to purchase new vehicles notwithstanding the expected lifecycle cost
savings. The proposed heavy-duty rules do not directly apply to non-road engines and equipment,
but because many heavy-duty diesel engines are used in both on-road and non-road applications
(including farm equipment), some stakeholders are concerned that compliance with rules could
raise the cost of diesel engines in general.
115 U.S. Environmental Protection Agency and National Highway Traffic Safety Administration, “Proposed
Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel
Economy Standards; Proposed Rule,” 74 Federal Register 49468, September 28, 2009.
116 U.S. Environmental Protection Agency and National Highway Traffic Safety Administration, “2017 and Later
Model Year Light Duty Vehicle GHG Emissions and CAFE Standards; Notice of Intent,” 75 Federal Register 62739-
62750, October 13, 2010.
117 U.S. Environmental Protection Agency and National Highway Traffic Safety Administration, “2017-2025 Model
Year Light-Duty Vehicle GHG Emissions and CAFE Standards: Supplemental Notice of Intent,” 76 Federal Register
48758, August 9, 2011.
118 For purchasers who finance their vehicles, the agencies estimate that the fuel cost savings will more than offset the
increase in loan payments due to the increased cost.
119 U.S. Environmental Protection Agency and National Highway Traffic Safety Administration, Greenhouse Gas
Emissions Standards and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles: Final Rules,
EPA-HQ-OAR-2010-0162, Washington, DC, August 9, 2011, http://www.epa.gov/otaq/climate/documents/ghg-hd-
rule.pdf.
120 In MY2008, EPA estimates a purchase price increase of $400 for vocational trucks, $1,400 for heavy-duty pickups
and vans, and $6,200 for combination tractors (tractor-trailers).
121 U.S. Environmental Protection Agency, EPA and NHTSA Propose First-Ever Program to Reduce Greenhouse Gas
Emissions and Improve Fuel Efficiency of Medium- and Heavy-Duty Vehicles: Regulatory Announcement, EPA-420-
F-10-901, Washington, DC, October 2010, http://www.epa.gov/otaq/climate/regulations/420f10901.htm.
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CRS Contact
Brent Yacobucci, Specialist in Energy and Environmental Policy, 7-9662,
byacobucci@crs.loc.gov.
Renewable Fuels Standard (RFS2) Rule
The Energy Independence and Security Act (EISA) expanded the renewable fuel standard (RFS)
established in the Energy Policy Act of 2005.122 On February 3, 2010, EPA finalized new rules for
the expanded renewable fuel standard (RFS2).123 The RFS requires a significant growth in U.S.
biofuel use through 2022. In 2013, the RFS mandate is 16.55 billion gallons of biofuels from
various sources (consisting mostly of ethanol from corn starch). By 2022, EISA will require that
36 billion gallons of biofuel be used in the nation’s fuel supply. Within the larger RFS, EISA
mandates the growing use of advanced biofuels (i.e., non-corn starch ethanol), including fuels
produced from cellulosic feedstocks. By 2022, the advanced biofuels mandate grows to 21 billion
gallons, including 16 billion gallons of cellulosic biofuel.124
EISA also requires that advanced biofuels—for example, cellulosic biofuels, biomass-based
diesel substitutes, and other advanced biofuels—as well as conventional biofuels from newly
built refineries, meet certain lifecycle GHG reduction requirements.125 EPA is required to classify
biofuel production based on their lifecycle emissions, including emissions from direct and
indirect changes in land use. Only fuels that achieve a 50% reduction in GHG emissions relative
to petroleum fuels may be classified as advanced biofuels. Cellulosic biofuels must achieve at
least a 60% GHG emission reduction, while fuels from new corn ethanol plants must achieve a
20% GHG emission reduction—corn ethanol plants in existence or under construction when
EISA was enacted (December 19, 2007) are grandfathered.
Status
Under the Clean Air Act Section 211(o), as amended by EISA, EPA is required to set the annual
standards under the RFS each November for the following year based on gasoline and diesel
projections from the Energy Information Administration (EIA). EPA is also required to set the
cellulosic biofuel standard each year based on the volume projected to be available during the
following year, using EIA projections and assessments of production capability from industry.126
During 2010 through 2012, EPA analysis suggested that the United States did not have sufficient
cellulosic biofuel production capacity to meet the RFS mandates. As a result, EPA lowered the
RFS cellulosic biofuel mandate (actual volume in gallons) from 100 million to 5 million in 2010,
122 See CRS Report R40155, Renewable Fuel Standard (RFS): Overview and Issues.
123 Environmental Protection Agency, Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard
Program, EPA-HQ-OAR-2005-0161, Washington, DC, February 3, 2010, http://www.epa.gov/otaq/renewablefuels/
rfs2-preamble.pdf.
124 See CRS Report R40168, Alternative Fuels and Advanced Technology Vehicles: Issues in Congress.
125 See CRS Report R40460, Calculation of Lifecycle Greenhouse Gas Emissions for the Renewable Fuel Standard
(RFS).
126 “EPA Proposes 2013 Renewable Fuel Standards,” Office of Transportation and Air Quality, EPA-420-F-13-007,
January 2013.
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from 250 million to 6 million in 2011, and from 500 million to 8.65 million in 2012. However,
cellulosic biofuels production (and imports) failed to meet even the reduced standards and
participating fuel companies were obligated to purchase waiver credits from the EPA in lieu of
fulfilling their blending obligations. For 2013 EISA mandates the use of 16.55 billion gallons of
total biofuels including 2.75 billion gallons of advanced biofuels (fuels other than corn starch
ethanol). EPA has proposed that at least 14 million gallons must be cellulosic biofuels (in ethanol
equivalent gallons, or 11 million gallons actual volume).
Issues
The RFS has been a major policy supporting the development of U.S. biofuels industries,
especially for corn-based ethanol producers. Many believe that the expanded RFS2 will be the
main pillar of support for existing U.S. biodiesel production capacity (due to the uneconomical
nature of U.S. biodiesel production). In future years, as the advanced biofuel mandates grow, the
RFS could be the key driver for the development of biofuels from cellulose, algae, and other non-
food/feed commodities.
Unintended Consequences of RFS Expansion
Biofuels expansion has contributed to concomitant pressure on limited agricultural resources
(most notably land) as feedstock production has intensified on existing cropland and expanded
onto new, marginal lands. This has raised prices for those commodities that compete for the
affected cropland, as well as having important secondary effects in related agricultural markets,
including livestock feed markets and agricultural input markets. However, to date total U.S.
biofuels production has exceeded the mandated levels set in the RFS, so it is unclear whether the
RFS, or market demand for biofuels, has been a greater determinant in the pressure on
agricultural land and resources. Either way, the potential for unintended consequences (e.g., land
use shifts and higher feed costs) in non-biofuels markets could remain important unless or until
crop yields catch up to and/or exceed biofuels’ mandated growth under the RFS.
The clearest example of increasing pressure on resources (with unintended consequences) is the
rapid growth of corn use for ethanol production. During the 2000/2001 crop year, corn ethanol
production used about 600 million bushels of corn, or about 7% of U.S. production. This usage
share has grown in lockstep with the RFS mandate. In the current 2012/2013 crop year, corn
ethanol production is expected to approach 13.3 billion gallons, while consuming 4.5 billion
bushels, or 42% of the 2012 corn harvest.127 While U.S. corn production has expanded over the
years, and is expected to continue to expand (primarily due to continued yield growth, as corn
area expansion is thought to be very near its sustainable maximum), corn use for ethanol has
expanded even faster. As a result, corn prices have moved steadily higher. The situation was made
more acute in 2012 by a severe drought that reduced corn yields and output year-over-year by
nearly 13%. From 1970 through 2005, the U.S. farm price for corn averaged $2.27 per bushel, but
it grew rapidly to $4.20 per bushel in 2007/2008 and $6.25 in 2011/2012, and is projected at
$7.20 for the 2012/2013 crop year.
127 World Agricultural Outlook Board, USDA, World Agricultural Supply and Demand Estimates (WASDE), February
8, 2013.
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Corn is the primary feed ingredient used by the U.S. livestock sector (i.e., dairy, cattle, hogs, and
poultry), representing over 90% of all grains consumed, and about 57% of all grains and feed
concentrates consumed annually. As the price of corn rises, the entire feed complex price
structure has risen, putting a cost squeeze on the U.S. livestock sector. In the long run, an
intensification of this pressure could lead to regional shifts in comparative advantage of certain
livestock production activities that could increasingly favor proximity to corn ethanol plants for
access to the co-product distiller’s dried grains and solubles.
Corn ethanol production is approaching a ceiling set in the RFS of 15 billion gallons by 2015. As
a result, its impact in other corn-user markets is expected to diminish in the coming years. The
potential effect of the “blend wall” (see “E15 Waiver Petition” discussion, below) in constraining
the commercial use of ethanol in future years portends the mitigation of biofuels’ spillover impact
in secondary markets. However, current tight corn supplies and the uncertainty of this past year’s
drought-ravaged crop are likely to keep upward pressure on commodity prices. Prospects for
another corn supply shortfall in 2013 are likely to keep tremendous pressure on policymakers to
waive future RFS mandates.
Unachieved Cellulosic Biofuels Mandates
After three successive years (2010-2012) in which, first, EPA lowered the cellulosic biofuels
mandate, and then cellulosic biofuels production failed to achieve the lowered mandates, the
American Petroleum Institute (API) in 2012 challenged its obligation under the RFS to use
cellulosic biofuels that do not exist in sufficient amounts in commercial markets or pay a fee. API
petitioned the U.S. Court of Appeals, D.C., charging that EPA exceeded its authority by setting
unachievable standards in an effort to promote cellulosic biofuel development. On January 25,
2013, the appeals court agreed with API’s charge, ruling that the EPA’s cellulosic biofuels
mandate for 2012 was vacated and that EPA must replace it with a revised mandate. Shortly after
the court’s ruling, on January 31, 2013, EPA announced that the 2013 mandate for cellulosic
biofuels would be set at 14 million gallons (ethanol-equivalent)—substantially below the original
mandate of 1 billion gallons, but well above the cellulosic biofuels commercial production level
of 22,000 gallons achieved in 2012.
CRS Contacts
Brent Yacobucci, Specialist in Energy and Environmental Policy, 7-9662,
byacobucci@crs.loc.gov; Randy Schnepf, Specialist in Agricultural Policy, 7-4277,
rschnepf@crs.loc.gov; or Kelsi Bracmort, Specialist in Agricultural Conservation and Natural
Resources Policy, 7-7283, kbracmort@crs.loc.gov.
E15 Waiver Petition
By 2022, EISA requires the use of 36 billion gallons of renewable fuels, and much of this could
be ethanol from a variety of feedstocks (many of which are agricultural-based; see “Renewable
Fuels Standard (RFS2) Rule” discussion, above). However, there is an obstacle to the use of this
quantity of ethanol in gasoline. Currently, although some ethanol is sold as an alternative fuel
(E85), most is sold as an additive in conventional and reformulated gasoline. Until recently, the
amount of ethanol that could be blended into gasoline for all uses was limited to 10% by volume
(E10) pursuant to EPA guidance under the CAA, as well as by vehicle and engine warranties, and
certification procedures for fuel-dispensing equipment.
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As the RFS is structured, assuming that most of the mandate is met using ethanol, the volume of
ethanol blended in gasoline is limited by gasoline consumption. In 2013, the RFS will require
over 16 billion gallons of renewable fuel, while projected gasoline consumption in 2013 is 134
billion gallons. After 2013, the renewable fuel mandate will continue to increase. However, a
limit of 10% ethanol means that ethanol for gasoline blending (not including E85) likely cannot
exceed 14 billion-15 billion gallons per year.128 This “blend wall” is the maximum possible
volume of ethanol that can be blended into U.S. motor gasoline. The actual limit could be slightly
lower, since older fuel tanks and pumps at some retail stations may not be equipped to handle
ethanol-blended fuel.129
Status
On March 6, 2009, Growth Energy (on behalf of 52 U.S. ethanol producers) applied to EPA for a
waiver from the CAA limitation on ethanol content in gasoline. Until recently, ethanol content in
gasoline for all uses was capped at 10% (E10); the application requested an increase in the
maximum concentration to 15% (E15). If fully granted, the waiver would allow the use of
significantly more ethanol in gasoline than is currently permitted.
On November 4, 2010, EPA granted a partial waiver allowing the use of E15 in MY2007 and
newer vehicles.130 The agency delayed a decision on MY2001-MY2006 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-MY2006 vehicles.131 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 non-road applications (including
farm equipment), 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 (including gasoline storage tanks and pumps), 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, among others.132 In
the 112th Congress, the House adopted an amendment (H.Amdt. 156) to H.R. 1 that would have
blocked EPA from using FY2011 funds to implement the agency’s waiver decision, although the
Senate bill did not contain that provision and the bill was not enacted. In the 113th Congress,
128 However, some of the mandate—in the range of 1 billion gallons—will be met with non-ethanol fuels, mainly
biodiesel and other biomass-based diesel fuels. Thus, the overall mandate can exceed the blend wall limit by some
amount.
129 For more information see CRS Report R40445, Intermediate-Level Blends of Ethanol in Gasoline, and the Ethanol
“Blend Wall”.
130 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.
131 Environmental Protection Agency, “Partial Grant of Clean Air Act Waiver Application Submitted by Growth
Energy to Increase the Allowable Ethanol Content of Gasoline to 15 Percent; Decision of the Administrator,” signed
January 21, 2011 (awaiting publication in the Federal Register).
132 The Alliance of Automobile Manufacturers (Alliance), the Association of International Automobile Manufacturers,
Inc. (AIAM), the National Marine Manufacturers Association (NMMA), and the Outdoor Power Equipment Institute
(OPEI). OPEI, Fact Sheet: E-15 Partial Waiver Legal Challenge, December 17, 2010. The case is Alliance of
Automobile Manufacturers et. al v. Environmental Protection Agency.
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legislation has been proposed (S. 344) that would overturn EPA’s E15 decision and bar the agency
from issuing further waivers.
On March 15, 2012, EPA approved the model misfueling mitigation plan (MMP) submitted by
the Renewable Fuels Association (RFA) as step for companies to develop their own MMPs.133
Since then, companies have registered with EPA, and at least 10 retailers have begun selling
E15.134
Issues
EPA approval of the waiver request could help open the door to E15 blending. This could be a
strong signal to the biofuels industry concerning federal support for meeting and enforcing RFS
mandate levels. As a result, this could help to stimulate new investment in the biofuels sector. In
the short run, the corn ethanol industry would be the main beneficiary, since it is best able to
respond to the expanding RFS mandates. Any further increase in corn ethanol use would benefit
corn producers. The net result could be an intensification of agricultural resource use with the
same consequences discussed previously (see “Renewable Fuels Standard (RFS2) Rule”).
The ability to address concerns over the use of E15 in legacy equipment (both infrastructure and
vehicles) will affect the rollout of E15 to retail stations. As noted above, EPA’s decision to allow
E15 in some vehicles only addresses one part of the blend wall. State laws and regulations,
vehicle and equipment certifications and warranties, and questions over fuel suppliers’
willingness to market the fuel could all be impediments to an expansion of E15 use.
Equipment manufacturers, meat producers, gasoline suppliers, and others challenged the EPA E15
waiver decision in federal court. On August 20, 2012, the U.S. Court of Appeals for the D.C.
Circuit found (2-1) that the plaintiffs did not have standing to challenge EPA’s decision.135
CRS Contacts
Brent Yacobucci, Specialist in Energy and Environmental Policy, 7-9662,
byacobucci@crs.loc.gov, or Randy Schnepf, Specialist in Agricultural Policy, 7-4277,
rschnepf@crs.loc.gov.
Chemicals
Agricultural “pests” can interfere with the production of crops and livestock used for food and
fiber. Pests may include insects, plant pathogens, weeds, and vertebrates. If in abundance, pests
may affect crop yield and cause a decline in quality. Hundreds of chemical products are available
to repel or kill pests that affect agricultural production. Each uses different active ingredients, has
133 Renewable Fuels Association News Release, “Ethanol Industry, EPA Ready for E15 Rollout,” March 15, 2012;
available at http://www.ethanolrfa.org/news/entry/ethanol-industry-epa-ready-for-e15-rollout/.
134 Renewable Fuels Association New Release, “Lawrence Gas Station First in the Country to Offer E15 Fuel,” July 17,
2012; available at http://www.ethanolrfa.org/news/entry/lawrence-gas-station-first-in-the-country-to-offer-e15-fuel/.
Choose Ethanol, E15 Stations; available at http://www.chooseethanol.com/pages/e15-station-locations/.
135 Grocery Manufacturers Association, et al. v. EPA, D.C. Cir. No. 10-1380.
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a different potency, and has a different impact on human health and the environment. The federal
regulation of these chemicals includes registering and restricting their use.
The following section covers five federal regulations relating to chemicals, including:
• disclosure of pesticide inert ingredients;
• Clean Water Act permits for pesticide application;
• pesticide drift labeling;
• Atrazine; and
• the Endangered Species Act (ESA).
Disclosure of Pesticide Inert Ingredients
Pesticide products generally contain active ingredients that are intended to control targeted pests
as well as inert ingredients that are included to dilute the active ingredients, increase their ability
to penetrate or adhere to leaf surfaces, or otherwise aid in the distribution and effectiveness of the
pesticide product. Inert ingredients are not “active ingredients,” but they are not necessarily
chemically inert. Some inerts are potentially toxic or otherwise hazardous.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) directs EPA to regulate the sale
and use of pesticide products and to establish requirements for pesticide labels. Use of a pesticide
in a manner that is inconsistent with label instructions is a violation of FIFRA. One requirement
for pesticide labels is a listing of active ingredients. No listing is required for most inert
ingredients, but labels must indicate the total percentage of the product that is inert.
EPA received two petitions requesting disclosure of certain potentially hazardous inert ingredients
on pesticide labels. One petition was from 22 nongovernmental organizations, while the other
was from the attorneys general of 15 U.S. states and territories. The petitioners requested that
EPA require disclosure of certain inert ingredients that have been designated as hazardous under
other environmental statutes. In response to the petitions, EPA is considering regulatory and
voluntary options for providing information to the public about the identities of inert ingredients
in pesticide products. According to EPA, it has the authority to require disclosure if the
Administrator “determines that such ingredient(s) may pose a hazard to man or the
environment.”136 In 1987, EPA required disclosure on pesticide labels of the identities of
approximately 50 “inerts of toxicological concern.”137 A future rulemaking might expand this
disclosure requirement to hundreds of additional chemicals and mixtures.
Status
In response to petitions, EPA issued an advanced notice of proposed rulemaking on December 23,
2009.138 Comments on options for providing public information closed on April 23, 2010. In the
136 40 C.F.R. §156.10(g)(7).
137 U.S. Environmental Protection Agency, 52 Federal Register 13305, April 22, 1987.
138 U.S. Environmental Protection Agency, “Public Availability of Identities of Inert Ingredients in Pesticides,” 74
Federal Register 68215-68223, December 23, 2009.
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fall 2011 Regulatory Agenda, EPA classified this rulemaking as a “Long Term Action Rule,”
indicating that rulemaking is not imminent.139 The rule was not listed in the 2012 Regulatory
Agenda. Another entry in the 2012 Regulatory Agenda indicates that EPA plans to explore
regulatory and non-regulatory options for “clarifying the active and inert ingredient listing” of
pesticide ingredients. That latter action is in the “Proposed Rule” stage. EPA anticipated issuance
of a notice of proposed rulemaking in December 2012.140 If EPA does commence rulemaking, and
a proposed rule is published in the Federal Register, the rule will be scrutinized in accordance
with various executive orders concerning regulatory review of a substantive but not significant
rule, and supporting documents will be submitted to the regulatory docket.141 Public comments
may be submitted to the docket at that time.
Issues
Pesticide manufacturers often claim the identities of inert ingredients to be proprietary, and
disclose them only to EPA and its contractors under a “confidential business information”
agreement. Sometimes even the registrants of pesticide formulations are not told the identities of
proprietary ingredients or mixtures supplied by manufacturers. EPA and the petitioners believe
that registrants and consumers should be able to ascertain whether the products they use contain
potentially hazardous ingredients. With such information, many believe the market should operate
more efficiently by allowing formulators and consumers to choose products that include or
exclude such ingredients rather than relying on government regulators to determine what
ingredients are safe. EPA has announced that it is committed to improving public availability of
such information to assist consumers and users of pesticides in making informed decisions and to
reduce the presence of potentially hazardous ingredients in pesticides. After EPA required
disclosure of 50 inert ingredients in 1987, most of them were removed from pesticide products.142
On the other hand, pesticide manufacturers might object to disclosure if it would reveal
information deemed to be proprietary, lead to loss of sales, or jeopardize market advantage
relative to competitors. This issue could be of interest to the agriculture community given the use
of pesticide products by producers.
CRS Contact
Linda-Jo Schierow, Specialist in Environmental Policy, 7-7279, lschierow@crs.loc.gov.
Clean Water Act Permits for Pesticide Application
For the more than 30 years since Congress enacted the Clean Water Act (CWA) and the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), little apparent direct conflict existed
between the two laws. EPA’s operating principle during that time was that pesticides used
according to the requirements of FIFRA do not require regulatory consideration under the CWA.
139 EPA, Unified Regulatory Agenda, Fall 2011, January 20, 2012, p. 262, RIN: 2070-AJ62,
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OA-2012-0077-0001.
140 EPA, Unified Regulatory Agenda, Dec. 2012, p. 243, RIN: 2070-AJ79, http://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=201210&RIN=2070-AJ79.
141 Docket #:EPA-HQ-OPP-2010-0305, at http://www.reginfo.gov.
142 U.S. Environmental Protection Agency, “Public Availability of Identities of Inert Ingredients in Pesticides,” 74
Federal Register 68217, December 23, 2009.
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EPA had never required CWA permits for use of FIFRA-approved materials, and EPA rules did
not specifically address the issue.143
EPA’s interpretation and operating practice were challenged in several court cases. At issue has
been how FIFRA-approved pesticides that are sprayed over or into waters are regulated and,
specifically, whether the FIFRA regulatory regime is sufficient alone to ensure protection of water
quality or whether such pesticide application requires approval under a CWA permit. The issue
arose initially over challenges to some routine practices in the West (weed control in irrigation
ditches and spraying for silvicultural pest control on U.S. Forest Service lands). It drew more
attention in connection with efforts by public health officials to combat mosquito-borne illnesses
such as West Nile virus. The litigation created uncertainty over whether application of pesticides
and herbicides to waterbodies requires a CWA water discharge permit.
Status
EPA tried to promulgate policy to clarify the relationship of the two laws and to address conflicts
resulting from several judicial rulings, ultimately in a regulation issued in 2006 that attempted to
specify circumstances in which pesticides applied to U.S. waters do not require CWA permits.
That rule was challenged by multiple parties, and in January 2009, a federal appellate court
vacated the rule.144 As a result, persons who spray pesticides on or near water are now required to
obtain a CWA permit.
The federal court’s ruling appeared to leave little room for EPA to fashion a new rule consistent
with the agency’s long-standing view that FIFRA-compliant applications do not require CWA
permits. Industry groups subsequently petitioned the Supreme Court to review the case, but the
Court denied the petition.
To meet the court’s mandate, EPA issued a pesticide general permit, or PGP, on October 31,
2011.145 General permits cover categories of point sources that have common elements and that
discharge the same types of wastes. Generally, permits allow the permitting authority to allocate
resources efficiently, especially when there are a potentially large number of permittees, and to
provide timely permit coverage. EPA estimates that the universe of affected activities that for the
first time will be subject to CWA permits is approximately 5.6 million applications annually,
which are performed by 365,000 applicators covering four use patterns: (1) mosquito and other
flying insect pest control; (2) aquatic weed and algae control; (3) aquatic nuisance animal control;
and (4) forest canopy pest control. The permit covers about 500 different pesticide active
ingredients that are contained in approximately 3,700 product labels.
The permit applies to a variety of entities, including agricultural interests involved in crop and
timber tract production, forest nurseries, and operating irrigation systems; pesticide and
agricultural chemical manufacturing; mosquito or other vector control districts and commercial
applicators that service them; utilities (e.g., electric power, natural gas, water supply, and
143 For more information on pesticide use and water quality, see CRS Report RL32884, Pesticide Use and Water
Quality: Are the Laws Complementary or in Conflict?.
144 National Cotton Council of America v. U.S. Environmental Protection Agency, 553 F.3d 927 (6th Cir. 2009).
145 U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination System (NPDES) Pesticide
General Permit for Point Source Discharges From the Application of Pesticides; Notice of final permit,” 76 Federal
Register 68750-68756, November 7, 2011.
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wastewater); and government agencies and departments engaged in air and water resource
management and conservation. It requires all operators to minimize pesticide discharges to waters
by practices such as using the lowest effective amount of pesticide product that is optimal for
controlling the target pest. It also requires operators to prepare pesticide discharge management
plans to document their pest management practices. Permittees must monitor for observable
adverse effects in the treatment area and where the pesticides are discharged to U.S. waters. The
permit does not cover agricultural stormwater runoff or irrigation return flow, as these discharges
are statutorily exempt from CWA permitting, and it also does not cover terrestrial application to
control pests on agricultural crops or forest floors. Thus, because pesticide applications to land
that do not result in point source discharges of pesticides to U.S. waters do not require permit
coverage, EPA says that many farms are not affected by the court’s decision and do not need
CWA permits. The EPA general permit applies in states and areas where EPA is the National
Pollutant Discharge Elimination System (NPDES) permitting authority, but has been used as a
model for other states to develop their own general permits.146 General permits issued by the
other states must meet CWA guidelines and also may be more stringent than EPA’s requirements.
Most entities subject to the EPA general permit were automatically covered, while some pesticide
applicators with more significant discharges must submit a notice of intent (NOI) to be covered
by the PGP. For example, any federal or state agency that conducts pest management as an
integral part of its operation, and special-purpose districts with a specific responsibility to control
pests, must submit a NOI. The permit took effect in January 2012, but EPA delayed enforcing its
requirements until March 1, in order to focus on outreach and compliance assistance.
In an effort to halt EPA’s regulatory activity, in March 2011, the House passed legislation (H.R.
872) that is intended to overturn the court’s 2009 ruling by exempting aerial pesticide application
activities from clean water permit requirements. The Senate Committee on Agriculture, Nutrition
and Forestry approved the bill without amendment in June 2011. Similar legislation (S. 3605) was
introduced separately as well. Also, in the 112th Congress, the text of H.R. 872 was included as a
provision in Title X of the 2012 farm bill approved by the House Agriculture Committee (H.R.
6083). This provision was not included in the Senate-passed farm bill (S. 3240).147 In the 113th
Congress, new legislation to exempt certain authorized pesticide uses from any permit
requirements (S. 175) has been introduced.
Issues
General permits cover categories of point sources that have common elements and that discharge
the same types of wastes. They allow the permitting authority to allocate resources efficiently,
especially when there is a large number of potential permittees. Permitting procedures are
streamlined and simplified, compared with CWA individual permits. Still, many agricultural
industry groups are fearful that the court’s ruling and EPA’s general permit will lead to more
burdensome and potentially costly requirements that affect their operation and activities.
146 The CWA authorizes EPA to delegate NPDES permitting authority to qualified states, and EPA has done so for the
majority of states. For this permit, EPA will be the permitting authority in Massachusetts, New Mexico, Oklahoma,
Alaska, Idaho, and the District of Columbia and for certain tribal lands.
147 For additional information, see CRS Report R42552, The 2012 Farm Bill: A Comparison of Senate-Passed S. 3240
and the House Agriculture Committee’s H.R. 6083 with Current Law, coordinated by Ralph M. Chite.
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CRS Contact
Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227,
ccopeland@crs.loc.gov.
Pesticide Drift Labeling
State agencies and EPA receive numerous complaints every year claiming harm (or risk) to
beneficial insects or to human health from exposure to pesticides that have drifted beyond the
fields targeted for application. Current federal and state regulations aim to protect agricultural
workers and non-target animals and plants, but opinions differ about the adequacy of such
regulations. Drift issues were addressed in recent years by an EPA advisory committee of
stakeholders, which recommended revisions to pesticide product labels to improve clarity and
consistency, making the label instructions more comprehensible for applicators and facilitating
enforcement by states. EPA issued proposed guidance in response to these recommendations.148
Pesticide drift is also the subject of a citizen petition received by EPA on October 13, 2009.
Earthjustice, Farmworker Justice, and several other organizations requested that EPA assess
exposure of children to pesticide drift and incorporate this information into risk assessments in
support of registration decisions. They also requested interim prohibitions on the use of certain
pesticides near homes, schools, and other places where children congregate. A related petition
filed by the Pesticide Action Network North America (PANNA) and the Natural Resources
Defense Council (NRDC) on September 12, 2007, requests cancellation of all registrations and
revocation of all tolerances for the pesticide chlorpyrifos, an organophosphate insecticide.149
NRDC filed a lawsuit to ban chlorpyrifos on July 22, 2010.150 As it reviews the registration for
chlorpyrifos, EPA is reassessing risks to “bystanders” due to spray drift.151
Status
EPA issued proposed labeling guidance and requested public comments on the citizen petition on
November 4, 2009. The original periods for public comment on the labeling proposal and the
petition were extended, but the comment periods ended March 5, 2010. EPA revised the guidance
and plans to issue it in the form of a pesticide registration notice (e.g., PR Notice 2013-X).152 To
date, no notice has been released. In July 2012, EPA announced a decision to require label
changes for agricultural products containing chlorpyrifos and indicated there would be new
restrictions on its use starting in late 2012.153 EPA explained that the new use restrictions for
chlorpyrifos represent a partial response to the petition filed in 2010. However, according to EPA,
“The agency is continuing to assess potential exposure and risk from spray drift and volatilization
148 EPA, Pesticide Spray and Dust Drift, December, 2009, http://www.epa.gov/pesticides/factsheets/spraydrift.htm.
149 The petition is available on an NRDC website at http://docs.nrdc.org/health/files/hea_10072201a.pdf.
150 The complaint is available on the NRDC website at http://docs.nrdc.org/health/files/hea_10072201b.pdf.
151 For more information about this petition and EPA’s response, see the docket established at EPA-HQ-OPP-2007-
1005.
152 EPA, Drift Labeling PR Notice for the Pesticide Program Dialogue Committee, October 2011, Arlington, VA,
November 14, 2011, http://www.epa.gov/pesticides/ppdc/2011/october/session2-spraydrift.pdf.
153 EPA, Pesticide News Story: “New Use Restrictions on Insecticide Chlorpyrifos Address Bystander Risk from Spray
Drift; EPA’s Partial Response to Chlorpyrifos Petition Denies Claims,” July 18, 2012.
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following chlorpyrifos applications.”154 EPA has asked for public comments on its risk
assessment methodology.155
Issues
Some public health advocacy groups argue that the proposed label changes are “too little, too
late.” Nevertheless, bee-keepers, nongovernmental associations representing farm workers, and
some state enforcement officials urge rapid adoption of the new policy. Thirty-eight congressional
representatives signed a letter dated November 20, 2009, asking EPA to require no-spray buffer
zones for drift-prone pesticides of at least 60 feet for ground applications and 300 feet for aerial
applications from homes, schools, parks, day care centers, and other places where children may
congregate.156 But EPA appears to have decided against such prescriptions, opting instead for a
“performance-based” approach based on a goal of preventing “harm.”157
On the other hand, some producers, pesticide applicators, and agricultural groups have argued
that the proposed label language was too vague and would invite litigation. For more than a year,
according to lawyers for pesticide producers,
[EPA] has maintained its position that its policies will define unallowable drift to be that which
“may cause” harm from the pesticide—which the users and registrants of pesticides believe to be
an extreme (and not authorized) extension of the current FIFRA standard of “does not cause
unreasonable risk.” This distinction is more than semantics, since the criticism of EPA’s position
is that it would provide for a subjective standard placing [a] user of pesticide who followed every
label instruction in jeopardy of a possible enforcement action even if “harm” has not occurred.
The debate has been going on for years, and EPA has attempted to reassure critics that no new,
more restrictive, standard is being imposed.158
The revised pesticide notice would not require label changes, but would require pesticide use in a
manner that does not “harm” people or non-target organisms. The revised notice dropped the
language proposed in 2009 which would have prohibited pesticide use that “could cause an
adverse effect.”159
Other EPA initiatives also may contribute to resolution of this issue, including new risk
assessment procedures for honey bees, and assessment and rating of pesticide application
technologies. The agency is preparing a new process for quantifying risks to honeybees and
identifying exposure and effect studies needed to inform that process. EPA plans to incorporate its
revised assessment process to quantify risks to bees in a similar manner as that used to evaluate
154 Ibid.
155 Comments are due March 8, 2013, and may be submitted through http://www.regulations.gov, Docket Number
EPA-HQ-OPP-2008-0850.
156 Letter from Rep. Keith Ellison, Member of Congress, Rep. Raul Grijalva, and Rep. Donna Christensen, Member of
Congress, et al. to Lisa Jackson, U.S. Environmental Protection Agency Administrator, EPA-HQ-OPP-2009-0628-
0015, November 20, 2009, http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2009-0628-0015.
157 EPA, Drift Labeling PR Notice for the Pesticide Program Dialogue Committee, October 2011, Arlington, VA,
November 14, 2011, http://www.epa.gov/pesticides/ppdc/2011/october/session2-spraydrift.pdf.
158 Bergeson & Campbell, Commentary, “2011 Predictions for EPA’s Office of Chemical Safety and Pollution
Prevention,” January 3, 2011, http://www.lawbc.com/news/docs/2011/01/010311-fedreg.htm.
159 EPA, Drift Labeling PR Notice for the Pesticide Program Dialogue Committee, October 2011, Arlington, VA,
November 14, 2011, http://www.epa.gov/pesticides/ppdc/2011/october/session2-spraydrift.pdf.
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risks to other taxa.160 If such assessments reveal unreasonable risks to bees, EPA will require
changes to pesticide product labels to reduce risks to reasonable levels. For example, EPA might
require label changes with respect to the timing, location, and/or techniques approved for
pesticide application. For more discussion of risks to honeybees, see CRS Report R42855, Bee
Health: The Role of Pesticides.
EPA also is developing a voluntary Drift Reduction Technology Program to encourage
development of new pesticide application technologies that may reduce spray drift.161 Initially the
program will focus on development of technologies used for ground-boom and aerial applications
to field and row crops, which are the predominant application methods in the United States,
according to EPA.162 EPA plans to encourage manufacturers to test their technologies for drift
reduction potential. After EPA verifies manufacturers’ test results, it will rate the technologies.
Ratings will be posted so as to inform pesticide registrants and others about available
technologies. When registering pesticides, EPA will consider the risk reduction that could be
achieved through use of such technologies.
Finally, as noted above, EPA is developing novel risk assessment methodologies to better
consider risks to bystanders from drift. These efforts may allow EPA to establish new, science-
based application restrictions to reduce drift for specific pesticides, as the agency seems to be
doing for chlorpyrifos.163
CRS Contact
Linda-Jo Schierow, Specialist in Environmental Policy, 7-7279, lschierow@crs.loc.gov.
Atrazine
Atrazine, a herbicide in use for at least 50 years, is one of the most widely used agricultural
pesticides in the United States today.164 It is used primarily on corn and sorghum in the Midwest.
Atrazine is particularly useful for controlling broadleaf and grassy weeds in fields where no-till or
low-till methods are employed to reduce topsoil erosion. These and other uses of atrazine are
licensed by EPA, which registers pesticide active ingredients, as well as formulated products, for
specified uses under specified conditions under the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) and the Federal Food, Drug and Cosmetic Act (FFDCA). The latter law
applies only to pesticides used on food and animal feed crops. For more information about
pesticide laws, see CRS Report RL31921, Pesticide Law: A Summary of the Statutes.
Recommended rates of application and other conditions of atrazine use are specified on the EPA-
160 EPA, Pesticide News Story: “EPA Solicits Comments on Information Collection Activities Relating to Pesticide
Drift-Reduction Technologies,” November 21, 2012.
161 EPA Environmental Fate and Effects Division (EFED), EFED Response to Comments Submitted to the Clothianidin
Registration Review Docket (Docket ID: EPA-HQ-OPP-2011-0865), June 11, 2012, p. 3, http://www.epa.gov/
pesticides/about/intheworks/epa-respns-to-clothianidin-petition-17july12.pdf.
162 Ibid.
163 EPA, Pesticide News Story: “New Use Restrictions on Insecticide Chlorpyrifos Address Bystander Risk from Spray
Drift; EPA’s Partial Response to Chlorpyrifos Petition Denies Claims,” July 18, 2012.
164 Atrazine is the common name for 6-chloro-N2-ethyl-N4-isopropyl-1,3,5-triazine-2,4diamine.
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approved labels of various formulated pesticide products. It is illegal to use any pesticide product
in a manner inconsistent with label instructions.
Widespread and relatively heavy use of atrazine, its persistence in the environment, reports of
atrazine contamination of surface and drinking water,165 and scientific studies indicating that
exposure to atrazine might disrupt the normal action of hormones in animals166 have prompted
EPA’s pesticide office to review atrazine registration more frequently than it has reviewed most
other pesticide registrations. Scrutiny of atrazine began at least 20 years ago, and has continued,
as new scientific hypotheses and studies have developed. For example, in November 1994, EPA
initiated a “Special Review” of the potential risks posed by atrazine and related triazine pesticides
to agricultural workers and to drinking water consumers.167 This review is ongoing. EPA issued a
re-registration eligibility decision (RED) for atrazine April 6, 2006.168
In recent years, many scientific studies have been published indicating possible risks posed by
atrazine to animals, as well as to human health. In addition, new monitoring data collected in the
Midwest by Syngenta, a major manufacturer of atrazine, recently became available for analysis.
In response, EPA announced October 7, 2009,169 that it would again re-evaluate atrazine research.
On the basis of its review, EPA will decide whether further regulatory restrictions are necessary to
prevent unreasonable effects on human health or the environment. EPA called for the assistance
of its FIFRA Scientific Advisory Panel (SAP) to review the agency’s plans for evaluating human
epidemiological studies as well as studies of laboratory animals and wildlife.
Status
On November 3, 2009, EPA presented its plan for the atrazine reevaluation to the SAP.170 In 2010,
the agency held three SAP meetings to address atrazine issues. In summer 2011, another peer
review was conducted concerning the findings of the Agricultural Health Study, a large
epidemiological study of agricultural workers and their families. That study is evaluating the
potential association between human atrazine exposure and cancer risk.171 According to EPA,
“[t]he SAP’s recommendations will help EPA determine the appropriate next steps in the Special
Review regarding cancer and drinking water issues.”172 The conclusions of the SAP, which were
165 Jack E. Barbash, Gail P. Thelin, Dana W. Kolpin, and Robert J. Gilliom, Distribution of Major Herbicides in
Ground Water of the United States, U.S. Geological Survey, Water-Resources Investigations Report 98-4245
Sacramento, California, 1999, http://water.usgs.gov/nawqa/pnsp/pubs/wrir984245/wrir984245.pdf.
166 U.S. Geological Survey, “Commonly Used Herbicide Adversely Affects Fish Reproduction,” USGS Newsroom,
http://www.usgs.gov/newsroom/article.asp?ID=2467&from=news_side.
167 Richard P. Keigwin, Jr., Director, EPA Pesticide Re-evaluation Division, EPA response to Szmuszkovicz letter
regarding the special review status of EPA’s current Atrazine review, August 13, 2010, http://www.regulations.gov/
#!documentDetail;D=EPA-HQ-OPP-2003-0367-0191.
168 EPA, Decision Documents for Atrazine, April 6, 2006, http://www.epa.gov/oppsrrd1/REDs/
atrazine_combined_docs.pdf.
169 U.S. Environmental Protection Agency, “Atrazine Updates,” current as of March 2011, http://www.epa.gov/
oppsrrd1/reregistration/atrazine/atrazine_update.htm.
170 EPA, U.S. Environmental Protection Agency Presentation of the Approach to Reevaluate Atrazine, November 3,
2009, http://www.epa.gov/scipoly/sap/meetings/2009/november/110309meetingtranscripts.pdf.
171 For more information on the Agricultural Health Study, see http://www.aghealth.nci.nih.gov/.
172 Richard P. Keigwin, Jr., Director, EPA Pesticide Re-evaluation Division, EPA response to Szmuszkovicz letter
regarding the special review status of EPA’s current Atrazine review, August 13, 2010, http://www.regulations.gov/
#!documentDetail;D=EPA-HQ-OPP-2003-0367-0191.
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posted to the regulatory docket on October 31, 2011, also might influence EPA’s risk assessment
of atrazine and subsequent reregistration decisions.173 Additional documents related to the
evaluation of atrazine are in the regulatory docket,174 and an EPA summary of the latest
developments in its review may be found online.175
Issues
Some policymakers and industry leaders are concerned about the continuing reviews of atrazine
and similar herbicides. Chemical producers, distributors, and users are concerned that these
reviews may lead to new restrictions or cancellation of pesticide uses. The potential cost to
growers and consumers if EPA would cancel or restrict registration for atrazine could be
considerable. On the other hand, public health advocates, some consumers of drinking water, and
advocates for environmental protection have argued that new restrictions on atrazine uses should
be considered and may be warranted if current regulations do not ensure with a reasonable
certainty that atrazine use on food will pose no harm to human health and that atrazine use in
general will not pose an unreasonable risk to the environment.
CRS Contact
Linda-Jo Schierow, Specialist in Environmental Policy, 7-7279, lschierow@crs.loc.gov.
Endangered Species Act (ESA)
The Endangered Species Act (ESA)176 protects species identified as endangered or threatened
with extinction and attempts to protect the habitat on which they depend. It is administered
primarily by the Fish and Wildlife Service (FWS), and by the National Marine Fisheries Service
(NMFS) for certain marine and anadromous species. Dwindling species are listed as either
endangered or threatened according to assessments of the risk of their extinction. Once a species
is listed, legal tools are available to aid its recovery and to protect its habitat. The ESA can
become the visible focal point for underlying situations involving the allocation of scarce or
diminishing lands or resources, especially in instances where societal values may be changing,
such as for the forests of the Pacific Northwest, the waters of the Klamath River Basin, or the
polar environment.
Status
In the case of agriculture, actions of some federal agencies may affect a very wide area or a
region and have the potential to affect many listed species. Perhaps the most widely known of
such agency actions is the registration and use of pesticides, such as those described in the
173 EPA, Re-Evaluation of Human Health Effects of Atrazine: Review of Non-Cancer Effects, Drinking Water
Monitoring Frequency, and Cancer Epidemiology, Docket ID: EPA-HQ-OPP-2011-0399, November 14, 2011,
http://www.regulations.gov/#!docketDetail;rpp=10;po=30;D=EPA-HQ-OPP-2011-0399.
174 Ibid.
175 EPA, Atrazine Updates, May 2012, http://www.epa.gov/opp00001/reregistration/atrazine/atrazine_update.htm,
August 21, 2012.
176 Act of December 28, 1973, P.L. 93-205, 87 Stat. 884. 16 U.S.C. §§1531-1544. For a more detailed discussion of
ESA and its structure, see CRS Report RL31654, The Endangered Species Act: A Primer.
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“Pesticide Drift Labeling” section, above. EPA is required to consult with either FWS or NMFS
on whether the use of a pesticide might jeopardize the continued existence of a listed species or
adversely modify critical habitat. To mitigate harm, EPA might need to include restrictions on a
pesticide label regarding its use (such as limiting total area, weather conditions, distance from a
particular habitat type, etc.). Consultation, or lack of consultation, between agencies in such cases
has sometimes been contentious and has led to citizen lawsuits to enforce the ESA. On several
occasions, EPA has been sued for failing to comply with ESA requirements on some of its
pesticide regulation decisions.177
Issues
For activities on privately owned land such as farms and ranches, the primary direct impact of the
ESA is through the law’s prohibitions on taking of listed species. The word take means “to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct.”178 Thus, such activities as applying pesticides to kill insects eaten frequently by an
endangered bat species, or cutting down a tree that contains the nestlings of an endangered bird,
would constitute a taking. Plants have substantially less protection under the ESA, so removing
an endangered plant on private land would trigger an ESA violation only under extremely limited
circumstances.179
If federal actions (or actions of non-federal parties that require a federal approval, permit, or
funding) might adversely affect a listed species as determined by FWS (or NMFS, depending on
the species), the federal action agencies must complete a biological assessment.180 The assessment
is used to determine whether formal consultation is necessary.181 Through consultation with either
FWS or NMFS, federal agencies must ensure, based on “the best scientific and commercial data
available,” that their actions are “not likely to jeopardize the continued existence” of any
endangered or threatened species, nor to adversely modify critical habitat.182 This is referred to as
a Section 7 consultation. “Action” includes any activity authorized, funded, or carried out by a
federal agency, including permits and licenses.
EPA recently announced that it is seeking comments on “a proposal to enhance opportunities for
stakeholders to provide input during its review of pesticide registrations ... and associated
consultations under Section 7 of the Endangered Species Act (ESA). The proposal was jointly
prepared by EPA, ... USDA, ... NMFS, ... and FWS.... The proposal describes significant changes
to EPA’s registration review process which are intended to facilitate ESA pesticide consultations
and coordination across these Federal agencies, and calls for a greater role for USDA.”183 The
practical effect of the proposal appears to be earlier and more wide-ranging consultation among
177 See Washington Toxics Coalition v. EPA, 413 F.3d 1024 (9th Cir. 2005) and Center for Biological Diversity v. EPA,
2010 wl 2143658 (N.D. Cal. May 17, 2010). For more on the temporary change and issues surrounding its issuance and
withdrawal, see CRS Report RL34641, Changes to the Consultation Regulations of the Endangered Species Act (ESA).
178 16 U.S.C. §1532. Harassment and harm are further defined by regulation at 50 C.F.R. §17.3.
179 See 16 U.S.C §1538(a)(2).
180 16 U.S.C. §1536(c).
181 50 C.F.R. §402.12(a). Informal consultations are also important, and may be as simple as a federal official of one
agency calling an FWS or NMFS official to describe a small project and to find out whether there are any listed species
in the vicinity.
182 16 U.S.C. §1536(a).
183 EPA, “FIFRA Pesticide Registration Review and ESA Consultation Process; Proposal Regarding Stakeholder Input;
Request for Comment,” 77 Federal Register 49792, August 17, 2012.
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the agencies; the EPA’s statutory obligation under ESA to consult with FWS or NMFS on its
actions and to avoid jeopardy would be unchanged.
CRS Contact
Lynne Corn, Specialist in Natural Resources Policy, 7-7267, lcorn@crs.loc.gov, or Linda-Jo
Schierow, Specialist in Environmental Policy, 7-7279, lschierow@crs.loc.gov.
Author Contact Information
Megan Stubbs, Coordinator
Jonathan L. Ramseur
Specialist in Agricultural Conservation and Natural
Specialist in Environmental Policy
Resources Policy
jramseur@crs.loc.gov, 7-7919
mstubbs@crs.loc.gov, 7-8707
Claudia Copeland
Linda-Jo Schierow
Specialist in Resources and Environmental Policy
Specialist in Environmental Policy
ccopeland@crs.loc.gov, 7-7227
lschierow@crs.loc.gov, 7-7279
M. Lynne Corn
Brent D. Yacobucci
Specialist in Natural Resources Policy
Section Research Manager
lcorn@crs.loc.gov, 7-7267
byacobucci@crs.loc.gov, 7-9662
Robert Esworthy
Randy Schnepf
Specialist in Environmental Policy
Specialist in Agricultural Policy
resworthy@crs.loc.gov, 7-7236
rschnepf@crs.loc.gov, 7-4277
James E. McCarthy
Specialist in Environmental Policy
jmccarthy@crs.loc.gov, 7-7225
Congressional Research Service
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