EPA Regulations:
Too Much, Too Little, or On Track?

James E. McCarthy
Specialist in Environmental Policy
Claudia Copeland
Specialist in Resources and Environmental Policy
January 8, 2015
Congressional Research Service
7-5700
www.crs.gov
R41561


EPA Regulations: Too Much, Too Little, or On Track?

Summary
Since Barack Obama was sworn in as President in 2009, the Environmental Protection Agency
(EPA) has proposed and promulgated numerous regulations implementing the pollution control
statutes enacted by Congress. Critics have reacted strongly. Many, both within Congress and
outside of it, have accused the agency of reaching beyond the authority given it by Congress and
ignoring or underestimating the costs and economic impacts of proposed and promulgated rules.
The House conducted vigorous oversight of the agency in the 112th and 113th Congresses, and
approved several bills that would overturn specific regulations or limit the agency’s authority.
Particular attention has been paid to the Clean Air Act, but there has also been congressional
scrutiny on other environmental statutes and regulations implemented by EPA. With Republican
majorities in both the House and Senate, the 114th Congress is expected to accelerate oversight
activities of the Administration’s initiatives and renew efforts to rein in EPA.
Environmental groups and other supporters of the agency disagree that EPA has overreached.
Many of them believe that the agency is, in fact, moving in the right direction, including taking
action on significant issues that had been long delayed or ignored in the past. In several cases,
environmental advocates would like the regulatory actions to be stronger.
EPA states that critics’ focus on the cost of controls obscures the benefits of new regulations,
which, it estimates, far exceed the costs. It maintains that pollution control is an important source
of economic activity, exports, and American jobs, as well. Further, the agency and its supporters
say that EPA is carrying out the mandates detailed by Congress in the federal environmental
statutes.
This report provides background information on EPA regulatory activity during the Obama
Administration to help address these issues. It examines major or controversial regulatory actions
taken by or under development at EPA since January 2009, providing details on the regulatory
action itself, presenting an estimated timeline for completion of rules not yet promulgated
(including identification of related court or statutory deadlines), and, in general, providing EPA’s
estimates of costs and benefits, where available. The report includes tables that show which rules
remain under development, and an appendix that describes major or controversial rules that are
now final.
The report also discusses factors that affect the timeframe in which regulations take effect,
including statutory and judicial deadlines, public comment periods, judicial review, and
permitting procedures, the net results of which are that existing facilities are likely to have several
years before being required to comply with most of the regulatory actions under discussion.
Unable to account for such factors, which will vary from case to case, timelines that show dates
for proposal and promulgation of EPA regulations effectively underestimate the complexities of
the regulatory process and overstate the near-term impact of many of the regulatory actions.

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EPA Regulations: Too Much, Too Little, or On Track?

Contents
Introduction ...................................................................................................................................... 1
Is EPA on Target or Overreaching? Conflicting Views ............................................................. 1
What This Report Does ............................................................................................................. 3
A Few Caveats Regarding Timing ............................................................................................. 4
Congressional Activity .............................................................................................................. 6
Conclusions ............................................................................................................................... 7
Organization of the Report ........................................................................................................ 8
Clean Air Act and Climate Change .................................................................................................. 8
Clean Water Act ............................................................................................................................. 13
Toxic Substances Control Act (TSCA) .......................................................................................... 16
Solid Waste/Underground Storage Tanks (RCRA) ........................................................................ 16

Tables
Table 1. Major EPA Rules and Modifications Expected to Be Proposed or Promulgated
(Final) in 2015 .............................................................................................................................. 6
Table 2. Major Rules and Modifications Under Development at EPA .......................................... 18

Appendixes
Appendix. Major or Controversial Rules Promulgated Since 2009 ............................................... 22

Contacts
Author Contact Information........................................................................................................... 41
Key Policy and Legal Staff ............................................................................................................ 41

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EPA Regulations: Too Much, Too Little, or On Track?

Introduction
Is EPA on Target or Overreaching? Conflicting Views
Since Barack Obama was sworn in as President of the United States in 2009, the Environmental
Protection Agency (EPA) has proposed and promulgated numerous regulations under the 11
pollution control statutes Congress has directed it to implement.1 Most of these statutes have not
been amended for more than a decade, yet the agency is still addressing for the first time
numerous directives given it by Congress, while also addressing newly emerging pollution
problems and issues. The statutes also mandate that EPA conduct periodic reviews of many of the
standards it issues, and the agency is doing these reviews, as well.
Although supporters would say that EPA is just doing its job, the agency’s regulatory actions over
the last six years have drawn attention for several reasons. In some cases, such as regulation of
greenhouse gas emissions, they represent a new departure. Based on a 2007 Supreme Court ruling
that greenhouse gas emissions are air pollutants under the Clean Air Act’s definition of that term,2
the agency has undertaken numerous regulatory actions setting emission standards or laying the
framework for a future regulatory structure. In other cases, the agency is revisiting emissions,
effluent, and waste management regulatory decisions made during earlier Administrations and
proposing more stringent standards to address pollution that persists as long as 40 years after
Congress directed the agency to take action. These actions are being driven by statutory
requirements to reexamine regulations, by legal challenges and court decisions, or because of
changing technologies or new scientific information.
EPA’s actions, both individually and in sum, have generated controversy. The Wall Street Journal,
calling the scale of EPA regulatory actions “unprecedented,” stated that the agency “has turned a
regulatory firehose on U.S. business”3 and, regarding proposed regulatory actions affecting
electric generating units, it said “the EPA’s regulatory cascade is a clear and present danger to the
reliability and stability of the U.S. power system and grid.”4 The American Enterprise Institute
stated that EPA “is engaged in a series of rule-making proceedings of extraordinary scope and
ambition.”5 The U.S. Chamber of Commerce described EPA’s actions as “a series of one-sided,
politically-charged regulations that are intended to take the place of legislation that cannot
achieve a consensus in the Congress.”6 Affected parties, such as the National Petrochemical &
Refiners Association, have labeled the agency’s actions “overreaching government regulation”
and “a clear distortion of current environmental law,”7 while the National Mining Association

1 For a summary of each of the 11 statutes and their principal requirements, see CRS Report RL30798, Environmental
Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency
, coordinated by David M.
Bearden.
2 See CRS Report R40984, Legal Consequences of EPA’s Endangerment Finding for New Motor Vehicle Greenhouse
Gas Emissions
, by Robert Meltz.
3 The Wall Street Journal, “The EPA Permitorium,” editorial, November 22, 2010.
4 The Wall Street Journal, “An EPA Moratorium,” editorial, August 29, 2011.
5 AEI, “The EPA’s Ambitious Regulatory Agenda,” Conference, November 8, 2010, at http://www.aei.org/event/
100334#doc.
6 U.S. Chamber of Commerce, “Regulatory Areas, Energy, and the Environment,” http://www.uschamber.com/
regulations/areas.
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said, “even at a time of great economic stress, EPA is poised to enact a series of back-door
mandates that threaten to cost millions of American jobs, and increase the cost of their electricity
while they’re at it.”8
Both Democrats and Republicans in Congress have expressed concerns, through bipartisan letters
commenting on proposed regulations and through introduced legislation that would delay, limit,
or prevent certain EPA actions.9 Senior Republicans in the House and Senate committed to
vigorous oversight of the agency’s actions during the 112th Congress,10 with some threatening to
withhold funding if the agency continued on its present course.11 Vigorous oversight continued in
the 113th Congress, as did congressional criticism—early in 2013, a senior Senate Republican
referred to a “frightening flood” of new EPA rules.12 With Republican majorities in both the
House and Senate, the 114th Congress is expected to accelerate oversight activities of the
Administration’s initiatives and renew efforts to rein in EPA.13
EPA has not been silent as the agency’s actions have come under attack. In a November 2010
letter to the ranking Members of the Energy and Commerce Committee and its Subcommittee on
Oversight and Investigations, then-EPA Administrator Lisa Jackson stated:
The pace of EPA’s Clean Air Act regulatory work under this administration is actually not
faster than the pace under either of the two previous administrations. In fact, EPA has
finalized or proposed fewer Clean Air Act rules (87) over the past 21 months than in the first
two years of either President George W. Bush’s administration (146) or President Clinton’s
administration (115).14

(...continued)
7 NPRA, “NPRA Says Court Decision on GHGs Bad for Consumers,” December 10, 2010, at http://www.npra.org/
newsRoom/?fa=viewCmsItem&title=Latest%20News&articleID=5980.
8 National Mining Association, “EPA’s Regulatory Train Wreck,” 2011, http://www.nma.org/pdf/fact_sheets/
epa_tw.pdf.
9 For a discussion of some of these congressional actions, see CRS Report R41212, EPA Regulation of Greenhouse
Gases: Congressional Responses and Options
, by James E. McCarthy; CRS Report R41698, H.R. 1 Full-Year FY2011
Continuing Resolution: Overview of Environmental Protection Agency (EPA) Provisions
, by Robert Esworthy; and
CRS Report R41979, Environmental Protection Agency (EPA) FY2012 Appropriations: Overview of Provisions in H.R.
2584 as Reported
, by Robert Esworthy.
10 See, for example, Letter of Hon. Fred Upton, Chairman-elect, House Energy and Commerce Committee, and Hon.
James Inhofe, ranking Member, Senate Environment and Public Works Committee, to EPA Administrator Lisa
Jackson, December 9, 2010, at http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=
d596d5fb-593c-4c99-b0c1-41aab15887b0. See also “A Coming Assault on the E.P.A.,” New York Times, editorial,
December 24, 2010.
11 See letter of Hon. Jerry Lewis to EPA Administrator Lisa P. Jackson, November 29, 2010, p. 2, at http://op.bna.com/
env.nsf/id/jstn-8bnt7t/.
12 See “Oil Industry, GOP Criticize EPA’s New Gasoline Rules,” Washington Post, March 30, 2013, p. 3.
13 Hon. John Boehner and Hon. Mitch McConnell, “Now We Can Get Congress Going,” Wall Street Journal,
November 6, 2014, p. A17; Ari Natter, “Senate Environment Committee to Focus on EPA Oversight Under Inhofe
Chairmanship,” Daily Environment Report, November 6, 2014, p. B-7.
14 Letter of Lisa P. Jackson, EPA Administrator, to Hon. Joe Barton and Hon. Michael C. Burgess, November 8, 2010,
p. 1. According to the letter, “All three counts include all Clean Air Act rules that amend the Code of Federal
Regulations and that require the EPA Administrator’s signature.” Administrator Jackson’s letter was written in
response to an October 14, 2010, letter from Reps. Barton and Burgess in which they expressed concern regarding the
cumulative impacts of new regulations being proposed under the Clean Air Act.
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In congressional testimony and other fora, Administrator Jackson sought to rebut critics’
challenges to EPA’s actions and initiatives.
It’s time for a real conversation about protecting our health and the environment while
growing our economy. EPA’s 40 years of environmental and health protection demonstrate
our nation’s ability to create jobs while we clear our air, water and land…. Telling the truth
about our economy and our environment is about respecting the priorities of the American
people. More than 70 percent of Americans want EPA to continue to do its job effectively.
Those same Americans want to see a robust economic recovery. We have the capacity to do
both things if we don’t let distractions keep us from the real work of creating jobs.15
Environmental groups generally believe that the agency is moving in the right direction, but in
several cases they would like the regulatory actions to be stronger. Many also fear that decisions
to delay the issuance or implementation of several standards are bad omens. Commenting on
EPA’s 2010 request to delay the issuance of standards for boilers, for example, Clean Air Watch
stated, “there is an unfortunate appearance here that political pressure from Congress is affecting
the situation. That EPA is running scared.”16 These concerns were renewed following the
President’s 2011 decision to withdraw revised air quality standards for ozone that EPA had spent
two years developing and the agency’s delay in implementation of air quality standards for
cement kilns and other industries.
While industry groups have been the most frequent critics of EPA regulation, industry sometimes
complains of a lack of EPA action. In a November 2014 statement, for example, the CEO of the
American Petroleum Institute complained that regulations dealing with renewable fuels were
overdue, calling it “unacceptable,” and “an example of government at its worst.” The American
Fuel and Petrochemical Manufacturers Association, seeking issuance of the same rule, called the
agency’s track record in failing to issue regulations “an egregious pattern of non-compliance.”17
It is not this report’s purpose to render a verdict on whether EPA is overreaching, running scared,
or following the directions and using the authorities given it by Congress. Statements
characterizing EPA’s actions, such as those cited above, depend on judgments as to whether the
agency has correctly determined the level of stringency needed to address an environmental
problem, and whether the agency’s actions are justified by the legislative mandates that Congress
has imposed and statutory authorities that Congress has provided. Congress and the courts may
render these judgments.
What This Report Does
This report provides a factual basis for discussion of these issues, which must ultimately be
evaluated on a case-by-case basis. The report identifies and briefly characterizes major regulatory
actions18 promulgated, proposed, or under development by EPA since January 2009. The report

15 Lisa P. Jackson, EPA Administrator, “Telling the Truth about the Environment and Our Economy,” September 2,
2011, http://blog.epa.gov/administrator.
16 Clean Air Watch, “EPA Seeks Big Delay in Final Toxic Rule for Boilers,” December 7, 2010, at
http://blogforcleanair.blogspot.com/2010/12/epa-seeks-big-delay-in-final-toxic-rule.html.
17 See “EPA Won’t Finalize Renewable Fuel Standard in 2014, Cites Lengthy Delays,” Daily Environment Report,
November 24, 2014.
18 This report uses the terms “regulatory action,” “regulation,” “rule,” “standard,” and “guidelines” for the actions it
describes. There are slight differences among these terms, which are explained, if necessary to understand how the
(continued...)
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uses data from EPA’s Semiannual Regulatory Agendas19 and the list of economically significant
reviews completed by the Office of Management and Budget (OMB)20 to compile a list of
regulatory actions proposed, promulgated, or under development by the agency. The list includes
all EPA rules considered “economically significant” by OMB since January 2009,21 as well as
some others that were not so designated but have been widely discussed.
Each entry in this report (1) gives the name or, where appropriate, the common name of the
regulatory action (e.g., the “Tailoring Rule,” or the “Endangerment Finding”); (2) explains what
the action does; (3) states the current status of the rule or action (e.g., proposed September 20,
2013); (4) explains the significance of the action, providing information on estimated costs and
benefits, where available; (5) discusses the timeline for implementation, and whether there is a
non-discretionary congressional deadline or a court order or remand driving its development; and
(6) identifies a CRS analyst who would be the contact for further information. To simplify
presentation, in some cases, we have summarized several separate, but related, regulations under
one heading.
This is not a complete list of the regulations that EPA has proposed or promulgated during the
Obama Administration. Rather, it is an attempt to identify the most significant and most
controversial. A complete list would be substantially longer.22
A Few Caveats Regarding Timing
Not all of the rules discussed here are Obama Administration initiatives. Many began
development under the Bush Administration (or earlier, in some cases), including several that
were promulgated under that Administration and subsequently were vacated or remanded to EPA
by the courts. Within the Clean Air Act group, for example, most of the major rules, including the
agency’s boiler rules and two of the major rules affecting electric power plants (the Cross-State
Air Pollution Rule and the MACT rule) fit that description. Similarly, EPA’s regulation of power
plant cooling water intake structures is governed by a 1995 consent decree and rules issued and
proposed in several phases beginning in 2001. Other EPA actions, such as reconsideration of the
ozone air quality standard, have actually delayed for several years implementation of Bush
Administration rules that strengthened existing standards. All of these are described in detail
below.
Several other generalizations are worth underlining:

(...continued)
regulatory action will be implemented. In general, “regulatory action” is the broadest of the terms and includes each of
the others.
19 U.S. EPA, Semiannual Regulatory Agenda: Spring 2013, July 3, 2013, at http://www.regulations.gov/
#!documentDetail;D=EPA-HQ-OA-2013-0514-00010514-0001.
20 OMB, Office of Information and Regulatory Affairs (OIRA), Historical Reports, at http://www.reginfo.gov/public/
do/eoHistReviewSearch.
21 OIRA (the regulatory affairs staff within OMB) considers a rule to be “economically significant” if it is “likely to
have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal
governments or communities.” OMB, FAQs/Resources, at http://www.reginfo.gov/public/jsp/Utilities/faq.jsp.
22 For example, according to OMB, OIRA completed action on 47 proposed and final EPA rules in 2012 and 78
proposed and final rules in 2011; 8 and 15 of these, respectively were determined to be economically significant. See
footnote 20.
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• Many proposed and “pre-proposal” rules linger for years without being
promulgated; thus, many of the EPA actions described here may not take effect
for some time.23 For those rules not yet promulgated, we have focused on rules
that have statutory or court-ordered deadlines and/or that have already been the
subject of significant discussion.
• If there are no known deadlines, we have attempted to provide EPA’s estimate of
the schedule for promulgation. In some cases, EPA has not estimated a proposal
or promulgation date. In those instances, we have either provided dates reported
in press accounts or we have discussed the general outlook for promulgation,
where possible. Experience suggests that proposal or promulgation may take
longer than estimated in cases that do not have a court-ordered deadline.
• Although they are the most likely deadlines to be met, even court-ordered dates
for proposal or promulgation may change. It is not uncommon for EPA to request
extensions of time, often due to the need to analyze extensive comments or re-
evaluate technical information.
• Promulgation of standards is not the end of the road. Virtually all major EPA
regulatory actions are subjected to court challenge, frequently delaying
implementation for years. As noted earlier, many of the regulatory actions
described here are the result of courts remanding and/or vacating rules
promulgated by previous Administrations. EPA has also, in several cases,
reconsidered rules after promulgation, changing what were announced as “final”
standards, and, in some cases, granting additional time for compliance.
• In many cases, EPA rules must be adopted by states to which the program has
been delegated before actual implementation occurs (e.g., establishing air quality
plans or issuing permits). Moreover, many states require that the legislature
review new regulations before the new rules would take effect.
• Standards for stationary sources under the air, water, and solid waste laws are
generally implemented through permits, which would be individually issued by
state permitting authorities after the standards take effect. When finalized, a
permit would generally include a compliance schedule, typically giving the
permittee several years for installation of required control equipment. Existing
sources generally will have several years following promulgation and effective
dates of standards, therefore, to comply with any standards.
In short, the road to EPA regulation is rarely a straight path. There are numerous possible causes
of delay. It would be unusual if the regulatory actions described here were all implemented on the
anticipated schedule, and even if they were, existing facilities would often have several years
before being required to comply. That said, Table 1 identifies rules that are likely to be proposed
or promulgated in 2015. Note that expected dates are tentative.

23 They may also be substantially altered before they become final and take effect, as a result of the proposal and public
comment process, and/or judicial review.
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Congressional Activity
In the 111th Congress, a number of EPA’s regulatory actions were the subject of legislative
proposals, including stand-alone bills that would have delayed or prohibited EPA actions,
resolutions of disapproval under the Congressional Review Act, and potential riders on EPA’s
appropriation. None of these measures passed.
Table 1. Major EPA Rules and Modifications Expected to Be Proposed or
Promulgated (Final) in 2015
Item Number in
This Report
Name of Rule
Type of Rule
Expected Date
7.
Wood Stove NSPS
Final
February 3, 2015
12.
Underground Storage Tanks
Final
February 2015
3.
Phase 2 Truck GHGs
Proposed
March 2015
1.
GHG Standards for New
Final Spring
2015
Power Plants
2.
GHG Standards for Existing
Final June
1,
2015
Power Plants
6.
Brick and Clay MACT
Final
September 24, 2015
8.
Steam Electric Effluent
Final
September 30, 2015
Limitation Guidelines
5.
Ozone NAAQS
Final
October 1, 2015
4. RFS2
Final
uncertain
Source: Compiled by CRS.
In the 112th and 113th Congresses, criticism of EPA actions increased, and several bills to prevent
or delay EPA action passed the House but were not considered in the Senate. Some proposals
were broad in nature, targeting all regulatory agencies or a lengthy list of specific regulations,
while others focused more narrowly on individual rules or actions.
The situation has been particularly contentious for regulatory actions involving greenhouse gases.
Although the EPA Administrator and President Obama have repeatedly expressed their preference
for Congress to take the lead in designing a GHG regulatory system, EPA maintains that, in the
absence of congressional action, it must proceed to regulate GHG emissions using existing
authority: a 2007 Supreme Court decision (Massachusetts v. EPA) compelled EPA to consider
whether GHGs are air pollutants that endanger public health and welfare, and if it so determined,
to embark on a regulatory course that is prescribed by the Clean Air Act. Having made an
affirmative decision on the endangerment question, EPA has proceeded on that regulatory course
and has defended its actions—generally successfully—in court.
Opponents of this effort in Congress, who maintain that the agency is exceeding its authority,
have considered various approaches to altering the agency’s course, including riders on
appropriations bills, stand-alone legislation, resolutions of disapproval under the Congressional
Review Act, and amendments to the Clean Air Act. Several of these bills passed the House in the
112th or 113th Congress; without exception, these bills died in the Senate.
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In addition to measures that targeted greenhouse gas regulations, bills passed by the House in the
112th or 113th Congress addressed other EPA regulatory actions affecting electric power plants,
industrial boilers and incinerators, coal combustion waste, cement kilns, and rural dust. None of
these was considered in the Senate.
Beyond the criticism of specific regulations, there were also calls for broad regulatory reforms in
the 112th and 113th Congress—for example, to reinforce the role of economic considerations in
agency decision-making, to increase Congress’s role in approving or disapproving regulatory
decisions, or to require analysis of the cumulative impacts of multiple EPA regulations. Similar
reform proposals are likely in the 114th Congress. One such broad bill in the 113th Congress was
H.R. 367, the Regulations from the Executive in Need of Scrutiny (REINS) Act, which in general
provided that major rules of the executive branch would have no force or effect unless a joint
resolution of approval were enacted into law.24 The bill passed the House in both the 112th and
113th Congresses. Other bills passed by the House in the 112th Congress proposed a number of
broad regulatory reforms, including requiring agencies to adopt the least costly rule that met
relevant statutory objectives unless the benefits justified additional costs; providing for judicial
review of certain requirements and determinations for which judicial review is not currently
available; altering judicial deference to agency interpretations of rules; enhancing regulatory
review authority of the Small Business Administration; and/or placing moratoria on the issuance
of new regulations.
Conclusions
This report has been updated frequently since the first version was released early in 2011. Many
of the issues that were raised then regarding specific regulations have now been resolved—at
least to the extent that proposed rules have been finalized. Still, the broader question of whether
the Obama Administration’s EPA is “overreaching” in its regulatory efforts has not gone away.
Critics both in Congress and outside of it regularly accuse the agency of overkill. In April 2013,
in a case involving four of EPA’s greenhouse gas regulatory actions, for example, a dozen states
led by Texas asked the Supreme Court to “rein in a usurpatious agency and remind the President
and his subordinates that they cannot rule by executive decree.”25
What is different nearly four years after our first report is that there is now a more detailed record
of EPA actions to be evaluated. Reviewing that record, we find—
• Many of the proposals that were controversial when our first report was released
are now final.
• In general, the proposed versions of these rules served as “high water marks”:
none of the final rules is more stringent than what was proposed and the final
versions of many of the most controversial rules were made less stringent.

24 For information, see CRS Report R41651, REINS Act: Number and Types of “Major Rules” in Recent Years, by
Maeve P. Carey and Curtis W. Copeland.
25 Petition for certiorari filed by State of Texas et al. at 2, granted, 2013 WL 1743433 (Oct. 15, 2013), from Coalition
for Responsible Regulation v. EPA, 682 F.3d 102 (D.C. Cir. 2012). Five other petitions for certiorari from the same
decision were also granted; in June 2014, the Supreme Court issued a ruling that largely upheld EPA’s authority to
regulate greenhouse gases (Utility Air Regulatory Group (UARG) v. EPA, No. 12-1146, 572 U.S. ____, 2014 Westlaw
2807314 (U.S. June 23, 2014)).
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• In revising proposed rules, EPA often relied on data submitted by industry and
other stakeholders, acknowledging that it had inadequate or incomplete data
when it proposed the rules.
• In several instances, the regulated community was given more time to comply
than originally expected.
• Regardless of modifications in the final rules, many of the regulations have been
challenged in court by a variety of groups—some seeking more stringent rules,
others less stringent.
• Although some of these challenges remain to be heard by the courts, thus far the
courts have upheld EPA decisions on the final regulations in most cases.26
• The pace of new regulation has slowed considerably since 2011. In part, this may
be because a backlog of rules that were remanded to the agency during the Bush
Administration has been largely addressed; other rules were delayed until after
the 2012 election, perhaps due to political considerations.
• A number of EPA proposals remain under development, with planned or court-
ordered promulgation dates on the horizon; many of these remain controversial.
• 2015 may be a particularly contentious year. Major rules are due to be
promulgated on GHG emissions and discharges to water from electric power
plants, hard on the heels of a December 2014 rule on coal combustion waste.
Ambient air quality standards for ozone may also be contentious.
Organization of the Report
Because so many of the rules that we listed in the first version of this report have now been
promulgated, we have organized this update to separate these largely “resolved” issues from
proposals that remain under consideration. In order to focus attention on the rules that remain to
be finalized, we have removed rules that are already final from the body of the report and placed
them in an Appendix. What remains in this portion of the report are the rules that are most likely
to be the subject of debate in the remainder of President Obama’s term. These rules are organized
under four headings: Clean Air Act and Climate Change; Clean Water Act; Toxic Substances
Control Act; and Solid Waste (Resource Conservation and Recovery Act). Following the text,
information concerning the rules that remain under development is summarized in Table 2.
Clean Air Act and Climate Change
1. Carbon Pollution Standards for New Power Plants. EPA has stated for some time that it
would undertake a review of the New Source Performance Standards (NSPS) to consider
greenhouse gas emission standards for electric generating units at the same time as it developed
mercury and air toxics (MATS or MACT) standards for power plants. Electric generating units
are the largest U.S. source of both greenhouse gas and mercury emissions, accounting for about
one-third of all GHG emissions in addition to about half of U.S. mercury emissions. In a

26 See, for example, CRS Report WSLG942, EPA Still on a Roll: Three More Wins from the D.C. Circuit in May and
CRS Report WSLG921, EPA on a Roll?: D.C. Circuit Upholds Three EPA Rulemakings in April.
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settlement agreement with 11 states and other parties, EPA agreed to propose the NSPS for power
plants by July 26, 2011, and take final action on the proposal by May 26, 2012. This schedule
encountered delays: NSPS were not proposed until April 13, 2012.27 EPA faced a statutory
deadline of one year after the date of proposal (i.e., April 13, 2013) for promulgation of final
standards, which it did not meet. The agency received nearly 2.7 million comments on the
proposed rule—the most it has received on any rule in its 40-year history.
On June 25, 2013, the President directed EPA to re-propose the rule by September 20, 2013. EPA
released a modified proposal on September 20. The re-proposal appeared in the Federal Register
on January 8, 2014.28 A public comment period then ran until May 9.
The proposed GHG emission standards would be set at levels achievable by most natural-gas-
fired units without added pollution controls; coal-fired units, on the other hand, would need to use
carbon capture and storage (CCS) technology to capture about 40% of their uncontrolled
emissions. Although the components of CCS technology have been demonstrated, no operating
power plant in the United States combines them all in an operating unit, and the electric power
industry has generally concluded that a CCS requirement would effectively prohibit the
construction of new coal-fired plants, other than those already permitted. EPA maintains
otherwise, but it also says that, because of low natural gas prices and abundant existing
generation capacity, it believes no new coal-fired units subject to the proposed standards will be
constructed between now and 2020. But the New Source standards play an important role,
nonetheless. Under Section 111 of the Clean Air Act, EPA can only promulgate standards for
emissions from existing sources if it has set standards for emissions from new sources in the same
category. For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
2. Carbon Pollution Standards for Existing Power Plants. In the settlement agreement that
EPA reached in 2010 (see Item 1 above), the agency also agreed to develop guidelines for GHG
emissions from existing fossil-fueled power plants. The President directed EPA to propose these
guidelines by June 1, 2014, finalize them by June 1, 2015, and require the states to submit
implementation plans by June 30, 2016. EPA released this proposal on June 2, 2014.29 The
proposal would set state-specific goals for CO2 emissions from fossil-fueled power plants. EPA
established different goals for each state based on four “building blocks”: improved efficiency at
coal-fired power plants; substitution of natural gas combined cycle generation for coal-fired
power; zero-emission power generation (from increased renewable or nuclear power); and
demand-side energy efficiency. Two sets of goals were proposed: an interim set, which would
apply to the average emissions rate in a state in the 2020-2029 time period; and a final set for the
years 2030 and beyond. EPA estimates the cost of the proposed rule at $7.3 billion to $8.8 billion
annually in 2030, with annual benefits of $53 billion to $88 billion in that year. At the same time
as the GHG standards were proposed for existing power plants, EPA proposed standards for GHG
emissions from modified and reconstructed existing sources.30 EPA says it “anticipates few, if

27 The standards appeared in the Federal Register on April 13, 2012. The standards and supporting materials are
available at http://www.epa.gov/carbonpollutionstandard/actions.html.
28 U.S. Environmental Protection Agency, “Standards of Performance for Greenhouse Gas Emissions from New
Stationary Sources: Electric Utility Generating Units,” Proposed Rule, 79 Federal Register 1430, January 8, 2014.
29 U.S. Environmental Protection Agency, “Carbon Pollution Emission Guidelines for Existing Stationary Sources:
Electric Utility Generating Units,” Proposed Rule, 79 Federal Register 34830, June 18, 2014.
30 A modification is any physical or operational change to an existing source that increases the source’s maximum
achievable hourly rate of air pollutant emissions. A reconstructed source is a unit that replaces components to such an
extent that the capital cost of the new components exceeds 50% of the capital cost of an entirely new comparable
(continued...)
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any, covered units will trigger the reconstruction or modification provisions in the period of
analysis (through 2025). As a result, we do not anticipate any significant costs or benefits
associated with this proposal.”31 Nevertheless, some maintain that a rule covering emissions from
these sources could also be used by EPA as the legal authority for regulation of emissions from
existing sources under Section 111. The agency has also proposed separate guidelines for GHG
emissions from existing fossil-fueled power plants in Indian country and U.S. territories, on
November 4, 2014.32 For additional information about either of these proposals, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
3. Phase 2 Medium- and Heavy-Duty Truck Greenhouse Gas Emission Standards. On
February 18, 2014, President Obama directed the Environmental Protection Agency (EPA) and
the National Highway Traffic Safety Administration (NHTSA) to develop a second round of
greenhouse gas emission and fuel economy standards for medium- and heavy-duty trucks.
Medium- and heavy-duty trucks are trucks with a gross vehicle weight of 8,500 pounds or more.
The standards, which will affect trucks beginning with the 2019 model year, are to be proposed
by March 2015 and finalized a year later. EPA had previously set GHG emission standards for
MY2014-MY2018 medium- and heavy-duty trucks, which were widely supported by the affected
industries. In a Fact Sheet accompanying the President’s announcement, the White House stated
that EPA and NHTSA will work closely with stakeholders and with the California Air Resources
Board (CARB) with the goal of ensuring that the next phase of standards allow manufacturers to
continue to build a single national fleet. For additional information, contact Jim McCarthy (7-
7225, jmccarthy@crs.loc.gov) or Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
4. Expanded Renewable Fuel Standard (RFS2). In 2010, EPA promulgated new rules for the
renewable fuel standard (RFS) that was expanded by the Energy Independence and Security Act
of 2007 (EISA, P.L. 110-140).33 For 2014, EISA was scheduled to require the use of 18.15 billion
gallons of ethanol and other biofuels in transportation fuel. Within that mandate, the statute
required the use of 3.75 billion gallons of advanced biofuels (fuels other than corn starch
ethanol), including 1.75 billion gallons of cellulosic biofuels. Because of concerns that gasoline
and diesel fuel suppliers would be unable to meet the 2014 standards,34 in November 2013 EPA
proposed lowering the advanced biofuel and overall RFS mandates. On November 29, 2013, EPA
proposed an overall RFS of 15.21 billion gallons and an advanced biofuel mandate of 2.2 billion
gallons, below both the actual 2013 level and the 2014 level scheduled in EISA.

(...continued)
facility. U.S. Environmental Protection Agency, “Carbon Pollution Standards for Modified and Reconstructed
Stationary Sources: Electric Utility Generating Units,” Proposed Rule, 79 Federal Register 34960, June 18, 2014.
31 U.S. Environmental Protection Agency, Regulatory Impact Analysis for the Proposed Carbon Pollution Guidelines
for Existing Power Plants and Emission Standards for Modified and Reconstructed Power Plants, June 2014, p. ES-26,
at http://www2.epa.gov/sites/production/files/2014-06/documents/20140602ria-clean-power-plan.pdf.
32 U.S. Environmental Protection Agency, “Carbon Pollution Emission Guidelines for Existing Stationary Sources:
EGUs in Indian Country and U.S. Territories; Multi-Jurisdictional Partnerships; Proposed Rule,” 79 Federal Register
65482, November 4, 2014.
33 U.S. Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel
Standard Program; Final Rule,” 75 Federal Register 14670-14904, March 26, 2010.
34 See section on Ethanol Blend Wall/E15 Waiver in the Appendix to this report.
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Further, because few commercial-scale cellulosic biofuel refineries have begun operation, EPA
proposed reducing the mandated 2014 level for these fuels from 1.75 billion gallons to 17 million
ethanol-equivalent gallons.35 These standards have not been finalized as of December 2014.
Similar shortfalls have occurred since 2010 when EISA first required the inclusion of cellulosic
biofuels in the RFS, prompting EPA to revise downward the cellulosic mandate each year.
However, through 2012 no commercial-scale cellulosic biofuel plants had begun operation, and
only about 20,000 gallons of cellulosic biofuel had been registered under the RFS, as opposed to
the 10.45 million ethanol-equivalent gallons (8.65 actual gallons) required by EPA. Because of
this shortfall in production capacity, in January 2013 the U.S. Court of Appeals for the D.C.
Circuit vacated the 2012 cellulosic mandate.36 In response, in February 2013, EPA revised the
2012 cellulosic standard to zero. As part of the 2014 rulemaking, EPA also proposed rescinding
the 2011 cellulosic mandate.
Because of the (vacated) requirement to use fuels that are not available in the market (“phantom
fuels”), EPA’s process for determining annual cellulosic volumes has become controversial.
Legislation introduced in the 113th Congress, H.R. 550 and S. 251, would have amended the
Clean Air Act to set cellulosic fuel requirements based on the prior years’ average monthly
production as opposed to the current statutory requirement for EPA to project production capacity
for the year. Various other bills would also amend the RFS, including legislation to eliminate
portions of the RFS, lower the annual mandated levels, or eliminate the program entirely. For
additional information, contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
5. Ozone Ambient Air Quality Standards. On November 26, 2014, EPA proposed a revision of
the National Ambient Air Quality Standards (NAAQS) for ozone.37 The Clean Air Act requires
EPA to review the NAAQS every five years. The previous review was completed in March 2008,
so the agency is now behind the statutory schedule for completion of its review, and is under a
court order to sign a final rule by October 1, 2015.
NAAQS are the cornerstone of the Clean Air Act, in effect defining what EPA considers to be
clean air for six widespread categories of air pollution. Ozone is the most widespread of the six
pollutants. Exposure to it in concentrations above the standard has been linked to respiratory
illnesses, heart attacks, and premature death. Ozone also has negative effects on forests and crop
yields, which the NAAQS are also supposed to protect.
In setting standards for ambient air quality, NAAQS do not directly limit emissions; but they set
in motion a process under which “nonattainment areas” are identified and states and EPA develop
plans and regulations to reduce pollution in those areas. Nonattainment designations may also
trigger statutory requirements, including that new major sources offset certain emissions by
reducing emissions from existing sources.
The ozone NAAQS proposed in late 2014 is based on a review of 2,300 scientific studies. It
would set a standard somewhere in the range of 65-70 ppb—as opposed to the current standard of

35 U.S. Environmental Protection Agency, “2014 Standards for the Renewable Fuel Standard Program; Proposed Rule,”
78 Federal Register 71732-71784, November 29, 2013.
36 API v. EPA, 706 F.3d 474 (D.C. Cir. 2013).
37 The rule appeared in the Federal Register in December: U.S. Environmental Protection Agency, “National Ambient
Air Quality Standards for Ozone; Proposed Rule,” 79 Federal Register 75234, December 17, 2014.
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75 ppb—for ozone concentrations in ambient air. In analyses accompanying the proposal, EPA
identified 358-558 counties that would violate the NAAQS’s proposed range, if the most recent
three years of data currently available were used to determine attainment. For comparison, 155
counties have monitors showing violation of the current (2008) standard. Actual designation of
nonattainment areas is likely to be made using later data than that currently available, however.
Given emission trends, a revised standard may affect fewer counties than the current projection
might suggest. (Note: From late 2009 to September 2011, EPA conducted a reconsideration of the
2008 ozone NAAQS, and proposed changes. At the President’s request, however, the proposal
was withdrawn without final action. The reconsideration is discussed below in the Appendix.]
The 2014 proposal is among the most costly rules currently under consideration at EPA, and has
already generated a substantial degree of interest. The agency estimates that the costs of
implementing the proposal would range from $3.9 billion to $15 billion annually in 2025
(depending on the concentration chosen), in states other than California. The monetized value of
the health benefits associated with changing the standard would exceed the costs at either end of
the proposed range, according to the agency. Separate cost and benefit estimates were prepared
for California; under the statute, most areas in the Golden State will have until the 2030s to attain
the standard.
For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
6. Brick and Clay MACT. EPA promulgated Maximum Achievable Control Technology
(MACT) standards for hazardous air pollutants emitted by manufacturers of bricks, structural clay
products, and clay ceramics in 2003, but the standards were vacated by the D.C. Circuit Court of
Appeals in 2007. The agency has not taken action since that time, and was sued by the Sierra
Club for its failure to act. Under a consent decree, the agency agreed to sign proposed standards
to replace the vacated rule by November 20, 2014, and to sign a final rule by September 24, 2015.
The proposed rule,38 signed November 20, would set standards for emissions of mercury,
particulate matter, acid gases, dioxins and furans, at an EPA-estimated cost of $21 million
annually, with monetized benefits two to six times the cost. For additional information, contact
Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
7. Wood Stove Emission Standards. On January 3, 2014, EPA released proposed emission
standards for new residential wood heaters, the most common of which are wood stoves, pellet
stoves, hydronic heaters, and forced air furnaces. The proposal, which would revise New Source
Performance Standards (NSPS) for wood stoves and pellet stoves and for the first time establish
standards for other types of wood heaters, appeared in the Federal Register on February 3,
2014.39 Under the Clean Air Act, EPA must take final action on an NSPS within one year of
proposal.
According to EPA, smoke from wood heaters contributes “hundreds of thousands of tons” of fine
particles to the air throughout the country each year, accounting for nearly 25% of all area source
air toxics cancer risks and 15% of non-cancer respiratory effects. In many areas, in wintertime,
wood heaters are the largest source of particulate air pollution; yet many heater types are not

38 U.S. EPA, “NESHAP for Brick and Structural Clay Products Manufacturing; and NESHAP for Clay Ceramics
Manufacturing; Proposed Rule,” 79 Federal Register 75622, December 18, 2014.
39 U.S. EPA, “Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and
Forced-Air Furnaces, and New Residential Masonry Heaters; Proposed Rule,” 79 Federal Register 6329, February 3,
2014.
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currently subject to any federal emission standard. The proposed rule would only gradually
reduce this pollution, because it would apply only to new heaters (not those already in use) and it
would give the industry a five-year grace period before its most stringent standards would take
effect. Wood heaters can last for 40 years or more, so it will be decades before the full health
benefits of the rule would be attained. Nevertheless, the rule would eliminate an estimated 210 to
470 premature deaths annually in the 2014-2022 period, according to EPA, as well as reduce
hospital admissions and lost work days due to respiratory illness. EPA quantifies these benefits at
$1.8 billion to $4.2 billion per year during the 2014-2022 period, more than 100 times the
agency’s estimate of the annualized cost to manufacturers, $15.7 million. Trade associations
representing the affected industries and companies in the industry have supported revision of the
current standards and the inclusion of additional heater types, but they express concern that the
standards as proposed will impose too great a cost. Facing higher costs for new units,
homeowners will continue to use current, highly polluting equipment, rather than replace it, the
industry maintains. Many have also expressed concerns regarding the process to be used in
certifying compliance and the short period of time in which currently available units could be
tested and certified. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
Clean Water Act
8. Revised Steam Electric Effluent Limitations Guidelines. Under authority of CWA Section
304, EPA establishes national technology-based regulations, called effluent limitations guidelines
(ELGs), to reduce pollutant discharges from industries directly to waters of the United States and
indirectly to municipal wastewater treatment plants based on Best Available Technology. These
requirements are incorporated into discharge permits issued by EPA and states. The current steam
electric power plant rules40 apply to about 1,200 nuclear- and fossil-fueled steam electric power
plants nationwide, 500 of which are coal-fired. In a 2009 study, EPA found that these regulations,
which were promulgated in 1982, do not adequately address the pollutants being discharged and
have not kept pace with changes that have occurred in the electric power industry over the last
three decades. Pollutants of concern include metals (e.g., mercury, arsenic, and selenium),
nutrients, and total dissolved solids. In April 2013, EPA proposed a revised power plant ELG,
under a schedule in a consent decree with environmental litigants.41 A final rule is due by
September 30, 2015.
The proposed rule presents four “preferred alternatives” for strengthening controls on wastewater
discharges from steam electric power plants that would cut annual pollutant discharges by up to
2.6 billion pounds and cut water use by 50 billion to 103 billion gallons per year. The four options
are based on varying levels of treatment for seven different waste streams generated by the plants
and differ in the stringency of the treatment controls to be imposed. The rulemaking addresses
wastewater discharges from coal ash storage ponds and flue gas desulfurization (FGD) air
pollution controls, as well as other power plant waste streams.42 The estimated annual compliance

40 40 C.F.R. §423.10.
41 The proposed rule was published in the Federal Register nearly two months later. U.S. Environmental Protection
Agency, “Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source
Category; Proposed Rule,” 78 Federal Register 34432-34543, June 7, 2013. For information, see CRS Report R43169,
Regulation of Power Plant Wastewater Discharges: Summary of EPA’s Proposed Rule, by Claudia Copeland.
42 Separately, EPA also is considering regulation of coal ash disposal sites under Resource Conservation and Recovery
(continued...)
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cost of the rule would be between $168 million and $948 million. For additional information,
contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
9. “Waters of the United States” Rulemaking. From the earliest days, Congress has grappled
with where to set the line between federal and state authority over the nation’s waterways.
Typically, this debate occurred in the context of federal legislation restricting uses of waterways
that could impair navigation and commerce. The phrase Congress often used to specify
waterways over which the federal government had authority was “navigable waters of the United
States.” However, in the legislation that became the CWA of 1972, Congress felt that the term
was too constricted to define the reach of a law whose purpose was not maintaining navigability,
as in the past, but rather preventing pollution. Accordingly, in the CWA Congress retained the
traditional term “navigable waters,” but defined it broadly to mean “waters of the United States.”
That phrase is important in the context of Section 404 of the law, a permit program jointly
administered by EPA and the Army Corps of Engineers that regulates discharges of dredged and
fill material to U.S. waters, including wetlands. The same phrase also defines the geographic
extent of the other parts of the CWA, including state-established water quality standards, the
discharge permit program in Section 402, oil spill liability, and enforcement. Consequently, how
broadly or narrowly “waters of the United States” is defined has been a central question of CWA
law and policy for nearly 40 years.
Controversies increased following two Supreme Court rulings, one in 2001 and one in 2006, on
how “waters of the United States” are defined for purposes of the 404/wetlands permit program.
Those two rulings interpreted the regulatory scope of the CWA more narrowly than it previously
had been construed, but created uncertainty about the precise effect of the Court’s decisions. In
March 2014, EPA and the Corps proposed a rule to clarify which waterbodies are considered
“waters of the United States.”43 The proposal is controversial with many groups, including land
developers, farmers, and energy companies who believe that it would vastly increase areas that
can be regulated by the federal government under the CWA. The agencies believe that the
proposed rule would not protect new types of waters that have not been protected historically and
that it is consistent with the Court’s narrow reading of jurisdiction. They estimate that the rule
would assert CWA jurisdiction over approximately 3% more acreage of U.S. waters, compared
with current field practice, but 5% less than prior to the Court’s 2001 and 2006 rulings. Public
comment on the proposal was accepted until November 14, 2014.44 Legislation to bar the
agencies from promulgating the proposed rule was introduced in the 113th Congress; the House
passed one such bill (H.R. 5078). For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
10. Mountaintop Mining in Appalachia. Since 2009, EPA and other federal agencies (the Office
of Surface Mining and Reclamation, in the Department of the Interior; and the U.S. Army Corps
of Engineers) have been working on a series of actions and regulatory proposals to reduce the
harmful environmental and health impacts of surface coal mining, including mountaintop removal

(...continued)
Act, as discussed in this report under “Coal Combustion Waste.”
43 U.S. Army Corps of Engineers, Department of the Army, Department of Defense, and Environmental Protection
Agency, “Definition of ‘Waters of the United States’ Under the Clean Water Act; Proposed Rule,” 79 Federal Register
22188-22274, April 21, 2014.
44 For more information, see CRS Report R43455, EPA and the Army Corps’ Proposed Rule to Define “Waters of the
United States”
, by Claudia Copeland.
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mining, in Appalachia. The actions are intended to improve regulation and strengthen
environmental reviews of permit requirements under the CWA and the Surface Mining Control
and Reclamation Act (SMCRA). Viewed broadly, the Administration’s combined actions on
mountaintop mining displease both industry and environmental advocates. The additional
scrutiny of permits and more stringent requirements have angered the coal industry and many of
its supporters. At the same time, while environmental groups support EPA’s steps to restrict the
practice, many favor tougher requirements or even total rejection of mountaintop mining in
Appalachia. Many of the actions have been highly controversial in Congress.
EPA is a key participant in several of the actions. In 2009 EPA and the Corps began conducting
detailed evaluations of 79 pending CWA permit applications for surface mining activities in order
to limit environmental impacts of the proposed activities under a process called Enhanced
Coordination Procedures (ECP). Coal industry groups and coal state officials contended that the
ECP process resulted in costly delay in issuance of permits. They challenged the process in
federal court, and in 2011, the court struck down the ECP as an unlawful transfer of legal
authority from the Corps to EPA. The agencies are continuing to review permit applications for
surface coal mining projects in Appalachia under existing rules, but not the vacated ECP. In 2012,
the same federal court invalidated a 2011 EPA guidance document intended to help assess a
mine’s water quality impacts, ruling that EPA had overstepped its statutory authority. The
government has appealed both of these rulings.
In 2010, the Army Corps suspended the use of a particular CWA general permit for surface coal
mining activities in Appalachia. In 2012, the Corps reissued all of its CWA general permits,
including one (nationwide permit 21) to replace the suspended permit with a permit containing
more stringent CWA rules applicable to these coal mining operations.45
In November 2009, the Department of the Interior’s Office of Surface Mining (OSM) issued an
Advance Notice of Proposed Rulemaking (ANPR) describing options to revise a SMCRA rule
that affects surface coal mining operations, called the stream buffer zone rule, which was
promulgated in December 2008.46 The Obama Administration identified the 2008 rule, which
exempts so-called valley fills and other mining waste disposal activities from requirements to
protect a 100-foot buffer zone around streams, for revision as part of the series of actions
concerning surface coal mining in Appalachia. Since then, OSM officials have been working on
developing a new rule and an accompanying draft environmental impact statement (EIS), which
are expected to be proposed in 2015. The revised stream buffer rule, when promulgated, is
expected to apply nationwide, not just in Appalachia. Potential changes to the 2008 rule have
drawn controversy and criticism. In the 113th Congress, the House passed legislation that would
have required states to implement the 2008 rule and would have delayed OSM’s development of a
new rule for at least five years (H.R. 2824).
Controversy also was generated by EPA’s 2011 veto of a CWA permit that had been issued by the
Corps for a surface coal mining project in West Virginia. EPA’s veto was overturned by a federal
court, but that ruling was reversed on appeal, and the Supreme Court declined to review the case.
Legislation to restrict EPA’s veto authority was introduced in the 113th Congress (S. 2156, H.R.

45 For information see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits Program: Issues and
Regulatory Developments
, by Claudia Copeland.
46 U.S. Department of the Interior, Office of Surface Mining Reclamation and Enforcement, “Stream Buffer Zone and
Related Rules; Advance notice of proposed rulemaking; notice of intent to prepare a supplemental environmental
impact statement (SEIS),” 74 Federal Register 62664-62668, November 30, 2009.
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4854, and H.R. 524/S. 830). For additional information, contact Claudia Copeland (7-7227,
ccopeland@crs.loc.gov).
Toxic Substances Control Act (TSCA)
11. Lead: Renovation, Repair, and Painting in Certain Public and Commercial Buildings
Rule.
EPA has revised a 2008 final rule implementing Section 402(c)(3) of the Toxic Substances
Control Act (TSCA; enacted as the Residential Lead-Based Paint Hazard Reduction Act of 1992).
The rule aims to reduce human health hazards associated with exposure to lead-based paint. It
established requirements for training and certifying workers and firms that remodel, repair, or
paint homes or child-occupied public or commercial buildings likely to contain lead-based paint
(generally built before 1978).47 Shortly after promulgation of the 2008 version of the rule, several
petitions were filed challenging it. The U.S. Court of Appeals for the District of Columbia Circuit
consolidated the petitions and, in August 2009, EPA signed a settlement agreement with the
petitioners. The agreement set legal deadlines for a number of EPA rulemaking actions; two rules
have been promulgated (see the Appendix), and a third is under development.
In 2010, EPA published an advanced notice of proposed rulemaking for a third rule responding to
the settlement agreement. It addresses renovations in public and commercial buildings that are not
child-occupied.48 In 2012, EPA published a notice in the Federal Register stating:
EPA is in the process of determining whether these activities [renovation, repair, and
painting of public and commercial buildings] create lead-based paint hazards, and, for those
that do, developing certification, training, and work practice requirements as directed by the
Toxic Substances Control Act (TSCA). This document opens a comment period to allow for
additional data and other information to be submitted by the public and interested
stakeholders. This document also provides advance notice of EPA’s plan to hold a public
meeting on June 26, 2013.49
The comment period for this phase of rulemaking was scheduled to end April 1, 2013, but was
extended to July 12, 2013.50 In the 113th Congress, H.R. 2093/S. 484 would have amended
provisions of TSCA to prohibit EPA from expanding its renovation requirements to public and
commercial buildings. For additional information, contact Jerry Yen (7-9113, jyen@crs.loc.gov).
Solid Waste/Underground Storage Tanks (RCRA)
12. Underground Storage Tanks. In 2011, EPA proposed revisions to the agency’s 1988
Underground Storage Tank (UST) technical regulations, financial responsibility requirements,
and state program approval regulations promulgated under Subtitle I of the Solid Waste Disposal

47 For a complete history of this rule, see EPA’s website “Lead Renovation, Repair, and Painting Program Rules” at
http://www2.epa.gov/lead/lead-renovation-repair-and-painting-program-rules.
48 U.S. Environmental Protection Agency, “Lead; Renovation, Repair, and Painting Program for Public and
Commercial Buildings; Proposed Rule,” 75 Federal Register 24848-24862, May 6, 2010.
49 U.S. Environmental Protection Agency, “Meetings: Lead; Renovation, Repair, and Painting Program for Public and
Commercial Buildings,” 77 Federal Register 76996, Dec. 31, 2012.
50 EPA, Lead; Renovation, Repair, and Painting Program for Public and Commercial Buildings,
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-0173-0162.
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Act (SWDA).51 The proposed revisions address changes made in the Energy Policy Act of 2005
(P.L. 109-58)52 and also update UST leak prevention and detection technologies and
requirements.53 The revisions are intended to improve leak prevention and detection of releases
from USTs, which EPA and states report as a leading source of groundwater contamination.
Proposed revisions to UST technical regulations include (1) secondary containment requirements
for new and replaced tanks and piping, (2) training requirements for UST owners and operators,
(3) new operation and maintenance requirements, (4) new release prevention and detection
technologies, and (5) updated codes of practice.
The Energy Policy Act of 2005 (EPAct) amended the SWDA to require states that receive federal
funding under Subtitle I to meet certain requirements (such as operator training and secondary
containment requirements). The proposed rule would expand on EPAct and further apply these
requirements in Indian country and in states that do not receive Subtitle I funds. EPA’s stated goal
is to make UST requirements similar in all states and in Indian country. Additionally, the
proposed rule would expand the scope of certain requirements beyond those established in law.
For example, EPAct requires states receiving Subtitle I money to require secondary containment
for new or replaced tanks if they are installed within 1,000 feet of a community water system or
drinking water well. EPA proposes to require secondary containment for new or replaced tanks in
all locations.
Among the updates to the 1988 UST rules, the proposal would modify the requirement that UST
systems must be compatible with stored substances, by adding options for owners and operators
to demonstrate that UST systems are compatible with fuel containing more than 10% ethanol
(E10) or 20% biodiesel (B20).54 The public comment period for the proposal closed on April 16,
2012. EPA plans to issue a final rule in February 2015. For additional information, contact Mary
Tiemann (7-5937, mtiemann@crs.loc.gov).

In Table 2, below, we identify major or controversial rules still under development at EPA that
were discussed in the previous section. The table includes rules not yet proposed, rules that have
been proposed but not yet promulgated, and in several cases rules already promulgated but now
being reconsidered by the agency. The Appendix to this report, describing economically
significant or controversial rules already promulgated by the agency, follows the table. While
these promulgated rules are generally thought to be in final form, many are still being challenged
by various stakeholders in court.

51 Environmental Protection Agency, “Revising Underground Storage Tank Regulations-Revisions to Existing
Requirements for Secondary Containment and Operator Training,” 76 Federal Register 71708, November 18, 2011.
The Solid Waste Disposal Act (SWDA) is commonly referred to as the Resource Conversation and Recovery Act.
52 P.L. 109-58, Title XV, Subtitle B, comprises the Underground Storage Tank Compliance Act (USTCA) which
broadly amended the UST leak prevention and provisions of SWDA Subtitle I (42 U.S.C. §6991-6991m).
53 Technical regulations are located at 40 C.F.R. §280. EPA also proposes to revise state program approval
requirements in 40 C.F.R. §281 to incorporate changes to the technical regulations.
54 A comparison of the key differences between the 1988 rule and the proposed rule is available at http://www.epa.gov/
oust/fedlaws/Crosswalk.pdf.
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Table 2. Major Rules and Modifications Under Development at EPA
Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
1.
Clean Air Act
Carbon Pol ution
EPA re-proposed
EPA was sued by
Primarily coal-fired
Standards (NSPS)
standards in the
numerous parties
electric generating
for New Power
January 8, 2014,
for its failure to
units, which generate
Plants
Federal Register. The
issue NSPS for
more than one-third of
Clean Air Act
GHG emissions
the nation’s electricity.
requires
from power
promulgation one
plants (State of
year after proposal.
New York v. EPA)
and signed a
consent
agreement to
issue standards.
Section 111(b) of
the Clean Air Act
requires NSPS for
a category of
sources if it
“causes, or
contributes
significantly to air
pollution which
may reasonably be
anticipated to
endanger public
health or
welfare.” EPA has
already concluded
that GHGs are
such air pollution.
2.
Clean Air Act
Carbon Pol ution
EPA proposed
Same as item 1,
Electric generating
Guidelines for
emission guidelines
above.
units of al types.
Existing Power
June 18, 2014. The
Plants
President has
directed the agency
to finalize guidelines
by June 1, 2015.
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Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
3.
Clean Air Act
Phase 2 Medium-
On February 18,
None Manufacturers
of
and Heavy-Duty
2014, President
trucks with a gross
Truck
Obama directed
vehicle weight of 8,500
Greenhouse Gas
EPA and NHTSA to
pounds or more.
Emission
develop a second
Standards
round of
greenhouse gas
emission and fuel
economy standards
for medium- and
heavy-duty trucks.
The standards,
which will affect
trucks beginning
with the 2019 model
year, are to be
proposed by March
2015 and finalized a
year later.
4.
Clean Air Act
Expanded
Standards for use of
Decisions
Petroleum refiners,
Renewable Fuel
cellulosic biofuels in
required under
biofuel producers.
Standard (RFS2)
2013 and 2014
the Energy
(revising downward
Independence and
the amount that
Security Act of
would otherwise be
2007.
required by statute)
were proposed
November 29, 2013.
5.
Clean Air Act
National Ambient Proposed January
Clean Air Act
EPA identified 358
Air Quality
19, 2010; withdrawn
required review
counties with monitors
Standard for
September 2, 2011.
of the 2008
that would violate the
Ozone
EPA is near
standards by
proposed standard if it
completion of its
March 2013. EPA
is set at 70 parts per
next review. The
was under court
billion and 558
agency proposed
order to propose
counties that would
changes in the
standards by
violate a 65 ppb
standards December December 1,
standard, using latest
17, 2014, and must
2014, and finalize
monitoring data.
promulgate
review by
Implementation of the
standards by
October 1, 2015.
proposed standard
October 1, 2015.
would require new
emission controls at a
projected cost of $3.9
billion to $15 billion
annual y in 2025, in
states other than
California, with
benefits exceeding
costs, according to
EPA.
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EPA Regulations: Too Much, Too Little, or On Track?

Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
6.
Clean Air Act
Brick and Clay
EPA released
D.C. Circuit
Brick and clay product
Product MACT
proposed standards
Court of Appeals
manufacturers.
on November 20,
vacated and
2014, and has
remanded
agreed to finalize
standards for this
standards by
category of
September 24, 2015. sources in 2007.
EPA reached a
consent
agreement in
November 2012
on a schedule for
replacement
standards.
7.
Clean Air Act
Wood Stove /
EPA proposed
The Clean Air Act Manufacturers of new
Wood Heater
standards for wood
requires final
wood stoves and wood
NSPS
stoves and wood
action on a
heaters.
heaters February 3,
proposed NSPS
2014.
within one year of
proposal.
8.
Clean Water Act Revised Steam
EPA proposed a rule Consent decree.
Proposal applies to
Electric Effluent
on April 19, 2013.
existing and new steam
Limitations
Final rule is due by
electric power plants.
Guidelines
Sept. 30, 2015.
9.
Clean Water Act “Waters of the
Rule developed by
None
Potentially affects a
United States”
EPA and Army
wide range of entities
Rulemaking
Corps was proposed
and activities subject to
April 21, 2014.
CWA requirements,
including permits.
10.
Clean Water Act Mountaintop
Various short-term
None
Surface coal mining
and Surface
Mining in
and long-term
operations in the
Mining Control
Appalachia
actions are
Appalachian region.
and Reclamation
underway by EPA
Act
and other agencies
to strengthen
environmental
reviews and revise
regulations.
11. Toxic
Substances
Lead Renovation,
An advanced notice
August 2009
Workers and firms
Control Act
Repair, and
of proposed
settlement
that remodel, repair,
Painting
rulemaking for work
agreement set
or paint homes and
in certain public and
numerous
some commercial
commercial buildings deadlines for
buildings.
is being revised as
revisions of a
announced Dec. 31,
2008 lead rule.
2012, and is
expected to be
finalized in 2015.
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EPA Regulations: Too Much, Too Little, or On Track?

Court or
Item
Statutory
Legislative
No.
Authority Rule
Status
Requirement? Affected
Entities
12. Resource
Underground
Proposed
Proposal
States and owners and
Conservation
Storage Tanks
November 18, 2011. addresses
operators of
and Recovery
EPA plans to issue a
provisions of the
underground storage
Act (RCRA)
final rule in February Energy Policy Act
tanks containing either
2015.
of 2005 (P.L. 109-
petroleum or
58).
hazardous chemicals.
Source: Compiled by CRS.
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Appendix. Major or Controversial Rules
Promulgated Since 2009

Climate Change
Greenhouse Gas Reporting Rule. In October 2009, in response to a congressional mandate in
EPA’s FY2008 appropriation (P.L. 110-161), EPA promulgated the Greenhouse Gas Reporting
Rule.55 The rule required 31 categories of sources to report their emissions of greenhouse gases to
EPA annually, beginning in 2011, if the sources emit 25,000 tons or more of carbon dioxide or the
equivalent amount of five other greenhouse gases (GHGs).56 (Eleven other categories of sources
have since been added to the rule.) By itself, the rule imposes little cost ($867 per facility,
according to EPA’s estimate) because it only requires reporting; but the sources who are required
to report are expected to be the focus of EPA efforts as the agency develops regulations to control
emissions of GHGs. The original reporting deadline was March 31, 2011. As that date
approached, EPA extended the deadline to September 30, 2011. The first data submitted under the
rule were released January 11, 2012. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
Greenhouse Gas Endangerment Finding. On December 15, 2009, EPA issued findings that six
greenhouse gases cause or contribute to air pollution that endangers public health and welfare.57
The action was taken in response to an April 2007 Supreme Court decision (Massachusetts v.
EPA
) that required the agency to decide the issue or to conclude that climate change science is so
uncertain as to preclude making such findings. These findings do not themselves impose any
requirements on industry or other entities. However, the action was a prerequisite to finalizing
EPA’s greenhouse gas emission standards for cars and light duty trucks, which were jointly
promulgated by EPA with fuel economy standards from the Department of Transportation, in May
2010. These, in turn, triggered permit requirements for stationary sources of GHGs, beginning
January 2, 2011. On December 10, 2010, the U.S. Court of Appeals for the D.C. Circuit denied
industry and state motions to stay the endangerment finding and related regulations, and on June
26, 2012, the court upheld the regulations. The court’s decision applied to 84 cases filed by a
variety of industry groups and states (Coalition for Responsible Regulation v. EPA). For
additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov) or Rob Meltz (7-
7891, rmeltz@crs.loc.gov).
Light Duty Motor Vehicle Greenhouse Gas Emission Standards, Model Years 2012-2016. On
May 7, 2010, EPA and the National Highway Traffic Safety Administration (NHTSA)
promulgated integrated GHG emission standards and corporate average fuel economy (CAFE)
standards for new cars and light trucks, a category that includes SUVs and minivans, as well as

55 U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases; Final Rule,” 74 Federal
Register
56260, October 30, 2009.
56 GHG emissions consist of carbon dioxide (CO2), methane, nitrous oxide (N2O), sulfur hexafluoride (SF6), and two
categories of gases—hydrofluorocarbons (HFCs) and perfluorocarbons (PFCs). Since each of these substances has a
different global warming potential, the emissions of each are converted to the equivalent amount of CO2 emissions,
based on how potent the substance is as compared to CO2, giving rise to the term “CO2-equivalent.”
57 U.S. Environmental Protection Agency, “Endangerment and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act,” 74 Federal Register 66496, December 15, 2009.
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pickup trucks.58 NHTSA is required by the Energy Independence and Security Act of 2007
(EISA, P.L. 110-140) to promulgate CAFE standards so that by 2020, new cars and light trucks
reach a combined average fuel economy of 35 miles per gallon (mpg). EPA simultaneously issued
vehicle greenhouse gas standards in response to directives from the Supreme Court in
Massachusetts v. EPA. The EPA regulations require a reduction in emissions to an estimated
combined emission level of 250 grams of CO2 per mile by model year 2016, about a 21%
reduction in emissions when fully implemented. The Administration estimates that complying
with the regulations will add $1,100 to the cost of an average vehicle, although this additional
purchase cost is expected to be paid back through lifetime fuel savings. The new standards are
being phased in beginning with the 2012 model year. EPA estimates that the additional lifetime
cost of 2012-2016 model year vehicles under the regulations will be about $52 billion; benefits
are expected to be approximately $240 billion. This rule was also upheld by the D.C. Circuit in
the June 26, 2012 Coalition for Responsible Regulation decision. For additional information,
contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
Light Duty Motor Vehicle Greenhouse Gas Emission Standards, Model Years 2017-2025.
Using the same authority described in Item 3 above, EPA and NHTSA promulgated joint
GHG/fuel economy rules for 2017-2025 model year vehicles, on October 15, 2012.59 Under these
standards, GHG emissions from new cars and light trucks will be reduced about 50% by 2025
compared to 2010 levels, to an expected fleet average of 163 grams per mile; average fuel
economy will rise to nearly 50 miles per gallon. The agencies estimated that the new technology
to comply with the standards will cost roughly $1,800 per vehicle in 2025, although lifetime fuel
savings would total roughly $5,700 to $7,400. For additional information, contact Brent
Yacobucci (7-9662, byacobucci@crs.loc.gov).
Greenhouse Gas Tailoring Rule. On June 3, 2010, EPA promulgated a rule that defined which
stationary sources would be required to obtain Clean Air Act permits for GHG emissions and how
the requirements would be phased in, a rule the agency referred to as the “Tailoring Rule.”60
Under the Clean Air Act, stationary sources of pollution (power plants, refineries, steel mills, etc.)
are required to obtain pre-construction and operating permits if they emit more than a threshold
amount of any air pollutant. The statutory threshold (generally 100 tons per year of any air
pollutant, but in some cases 250 tons) is not well-suited to carbon dioxide (CO2), the principal
greenhouse gas: requiring permits of facilities that emit more than 100 tons of CO2 would lead to
the “absurd result” that as many as 6 million sources of GHGs would need to apply for permits.
Out of administrative necessity, therefore, the agency set higher annual thresholds. The threshold
set by the Tailoring Rule (annual emissions of 75,000-100,000 tons of carbon dioxide
equivalents) limited which facilities were required to obtain permits for their GHG emissions:
from 2011 through 2016, the nation’s largest GHG emitters, including power plants, refineries,

58 U.S. Environmental Protection Agency, U.S. Department of Transportation, “Light-Duty Vehicle Greenhouse Gas
Emission Standards and Corporate Average Fuel Economy Standards; Final Rule,” 75 Federal Register 25324-25728,
May 7, 2010. Information on benefits and costs are summarized in an April 2010 EPA Fact Sheet, at
http://www.epa.gov/oms/climate/regulations/420f10014.pdf.
59 U.S. Environmental Protection Agency, U.S. Department of Transportation, “2017 and Later Model Year Light-Duty
Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards; Final Rule,” 77 Federal Register
62624, October 15, 2012. A link to the rule and other information, including a Fact Sheet, is available at
http://www.epa.gov/otaq/climate/regs-light-duty.htm#new1.
60 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.
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cement production facilities, and about two dozen other categories of sources (an estimated
17,000 facilities annually) were to be the only sources required to obtain permits. Of these, most
would have faced only an administrative requirement to provide an estimate of their GHG
emissions. A few (EPA estimated 1,600) new or modified facilities would need to address whether
they have the best available control technology for limiting emissions.61
The Tailoring Rule was effectively overturned by the Supreme Court on June 23, 2014. The Court
agreed that EPA could require permits for GHG emissions from sources that were treated as major
sources because of their emissions of conventional pollutants, and thus had to obtain CAA
permits anyway. But the Court ruled that EPA could not require sources to obtain permits based
solely on their GHG emissions. There is little practical effect from the Court’s decision, since
most of the sources that the Tailoring Rule would have required to obtain GHG permits are also in
the “anyway” category.
For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov) or Rob Meltz
(7-7891, rmeltz@crs.loc.gov).
Medium- and Heavy-Duty Vehicle Greenhouse Gas Rule. On September 15, 2011, EPA and
the National Highway Traffic Safety Administration (NHTSA) promulgated integrated GHG
emission standards and fuel economy standards for medium- and heavy-duty vehicles.62 EPA’s
endangerment finding (see above) specifically referenced medium- and heavy-duty trucks as
among the sources that contribute to the GHG emissions for which it found endangerment. In
addition, NHTSA was required by Section 102 of the Energy Independence and Security Act of
2007 (EISA, P.L. 110-140) to promulgate fuel economy standards for medium- and heavy-duty
trucks, reflecting the “maximum feasible improvement” in fuel efficiency. The standards will be
phased in between 2014 and 2018. When fully implemented, they will require an average per
vehicle reduction in GHG emissions of 17% for diesel trucks and 12% for gasoline-powered
trucks. The expected cost increase for the 2014-2018 vehicles affected by the rule is $8.1 billion.
EPA projects benefits of $57 billion over the trucks’ lifetimes, including $50 billion in fuel
savings. In the President’s June 25, 2013, Climate Action Plan, he committed to a second round of
fuel efficiency and GHG emission standards for post-2018 heavy duty vehicles. For additional
information, contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov).
Ambient Air Quality Standards
Particulate Matter (including “Farm Dust”) NAAQS. EPA considers particulate matter (PM)
to be among the most serious air pollutants, responsible for tens of thousands of premature deaths
annually. The current NAAQS sets standards for both “fine” particulates (PM2.5) and larger,
“coarse” particles (PM10). The PM2.5 standards affect far more people and far more counties than
the standard for PM10, and both sets of standards have affected mostly industrial, urban areas.

61 EPA reported, however, that in the first 11 months of the program, only 68 permit applications were received. See
U.S. EPA, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule Step 3, GHG Plantwide
Applicability Limitations and GHG Synthetic Minor Limitations, Proposed Rule, 77 Federal Register 14233, March 8,
2012.
62 U.S. Environmental Protection Agency, U.S. Department of Transportation, “Greenhouse Gas Emissions Standards
and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles; Final Rules,” 76 Federal Register
57106, September 15, 2011.
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EPA completed a review of the PM NAAQS in 2006. The agency is required by the Clean Air Act
to review NAAQS at five-year intervals, so another review was due in 2011. As the review
process was getting underway, in February 2009, the D.C. Circuit Court of Appeals remanded the
2006 standard for PM2.5 to EPA, saying that the standard was “contrary to law and unsupported by
adequately reasoned decisionmaking.”63 As a result, EPA combined the statutory five-year review
of the standard and its response to the D.C. Circuit decision, completing a review of the PM
standard that served both purposes in January 2013.64 The review left the standard for coarse
particles unchanged, as well as the standard for 24-hour exposures to PM2.5. But it lowered the
standard for annual exposures to PM2.5, as suggested by the agency’s outside scientific advisers,
from 15 micrograms per cubic meter to 12.
Although this appears to be a significant strengthening of a standard that potentially affects a
wide array of mobile and stationary sources, EPA projects the incremental cost of the revision at a
relatively modest $53 million to $350 million annually. The cost of compliance with the PM
NAAQS is moderated by the fact that other EPA standards (for various emission sources) are
reducing exposures to PM2.5 even without a strengthening of the ambient standard. Annual
benefits of the more stringent NAAQS were estimated to range from $4.0 billion to $9.1 billion.
In the 112th Congress, attention to PM issues focused on the larger, coarse particles, PM10, even
though EPA did not propose to change them. Members of the House and Senators discussed the
need to prevent a supposed EPA plan to use the revision of the PM10 standard to impose controls
on “farm dust.” The House passed legislation to prevent EPA from tightening standards for PM10
for one year and to permanently limit EPA’s authority to regulate dust in rural areas. EPA stated
early in the PM review process that it did not intend to change the PM10 standard, and the final
revision made no change. For additional information, contact Rob Esworthy (7-7236,
resworthy@crs.loc.gov).
Ozone Ambient Air Quality Standards. On January 19, 2010, EPA proposed a revision of the
National Ambient Air Quality Standard (NAAQS) for ozone.65 At the President’s request, on
September 2, 2011, this proposal was withdrawn, leaving EPA to implement previously
promulgated ozone standards. The Clean Air Act requires EPA to review NAAQS every five
years, however, so (as discussed in the main body of this report) the agency is nearing completion
of the next regular review. The agency is under a court order to sign a final rule by October 1,
2015.
NAAQS are the cornerstone of the Clean Air Act, in effect defining what EPA considers to be
clean air for six widespread categories of air pollution. They do not directly limit emissions, but
they set in motion a process under which “nonattainment areas” are identified and states and EPA
develop plans and regulations to reduce pollution in those areas. Nonattainment designations may
also trigger statutory requirements, including that new major sources offset certain emissions by
reducing emissions from existing sources. Currently, there are NAAQS for six pollutants (ozone,
particulate matter, sulfur dioxide, carbon monoxide, nitrogen dioxide, and lead). Because EPA has

63 American Farm Bureau Fed'n v. EPA, 559 F.3d 512 (D.C. Cir. 2009).
64 U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Particulate Matter; Final
Rule,” 78 Federal Register 3086, January 15, 2013. A link to the standards and other supporting materials can be found
at http://www.epa.gov/pm/actions.html.
65 U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Ozone; Proposed Rule,” 75
Federal Register 2938, January 19, 2010.
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routinely failed to meet CAA requirements that these standards be reviewed every five years, all
of the standards have been under court-ordered deadlines for review. EPA last completed a review
of the ozone NAAQS in 2008, and made the standard more stringent; but the Obama
Administration’s EPA suspended implementation of the 2008 standard in 2009 in order to
consider further strengthening it.
The reconsidered ozone NAAQS that was proposed in January 2010 was among the most
controversial standards under consideration at EPA, because of its wide reach and potential cost.
In the 2010 proposal, EPA identified at least 515 counties that would violate the proposed
NAAQS if the most recent three years of data available at the time of proposal were used to
determine attainment (compared to 85 counties that violated the standard in effect at that time).
The agency estimated that the costs of implementing the reconsidered ozone NAAQS, as
proposed, would range from $19 billion to $25 billion annually in 2020, with benefits of roughly
the same amount.
On September 2, 2011, the White House announced that the President had requested that EPA
Administrator Jackson withdraw the draft ozone standards, since work was already underway to
update a review of the science that would result in the reconsideration of the ozone standard in
2013.66 That review is now nearing completion, as mentioned above. For additional information,
contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Sulfur Dioxide NAAQS. Three other NAAQS reviews (for sulfur dioxide,67 nitrogen dioxide,68
and carbon monoxide) were completed in 2010 and 2011. Of these, only the sulfur dioxide (SO2)
NAAQS is considered an economically significant rule.69 EPA estimated the cost of the more
stringent SO2 NAAQS at $1.5 billion annually, with benefits 9-24 times that amount. For
additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Electric Generating Units
Cross-State Air Pollution (Clean Air Transport) Rule. EPA’s major clean air initiative under
the Bush Administration, the Clean Air Interstate Rule (CAIR), was remanded to the agency by
the D.C. Circuit Court of Appeals in 2008. EPA promulgated a replacement, the Cross-State Air
Pollution Rule (CSAPR, pronounced “Casper”), August 8, 2011.70 The original CAIR rule,
designed to control emissions of air pollution that causes air quality problems in downwind states,
established cap-and-trade programs for sulfur dioxide and nitrogen oxide emissions from coal-
fired electric power plants in 28 eastern states, at an estimated annual cost of $3.6 billion in 2015.

66 The White House, Office of the Press Secretary, “Statement by the President on the Ozone National Ambient Air
Quality Standards,” September 2, 2011.
67 U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final
Rule,” 75 Federal Register 35520, June 22, 2010.
68 U.S. Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide;
Final Rule,” 75 Federal Register 6473, February 9, 2010.
69 The agency concluded that the nitrogen dioxide NAAQS, even though it was strengthened, would have no costs or
benefits, since the agency projected no areas to be nonattainment for the revised standard. The agency decided not to
change the carbon monoxide NAAQS, so there were no costs or benefits associated with that review, either.
70 U.S. Environmental Protection Agency, “Federal Implementation Plans: Interstate Transport of Fine Particulate
Matter and Ozone and Correction of SIP Approvals,” 76 Federal Register 48208, August 8, 2011. Explanatory material
can be found at http://www.epa.gov/crossstaterule/actions.html. The rule was generally referred to as the Clean Air
Transport Rule prior to being finalized.
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The replacement rule also applies to 28 states; it allows unlimited intrastate allowance trading,
but limits interstate trading in response to the D.C. Circuit decision; its annual compliance cost
was estimated at $800 million annually in 2014, on top of $1.6 billion already being spent to
comply with CAIR. EPA estimates the benefits of CSAPR at $120 billion to $280 billion
annually, chiefly the avoidance of 13,000 to 34,000 annual premature deaths.
Numerous parties petitioned the D.C. Circuit for review of CSAPR, and the court stayed its
implementation pending the completion of the court’s proceedings. On August 21, 2012, the court
vacated the standards and remanded them to EPA. In June 2014, however, the Supreme Court
overturned the D.C. Circuit decision and remanded the case to the D.C. Circuit for further action.
In light of the Supreme Court decision, EPA has requested that the stay on implementation of
CSAPR be lifted. Because of the earlier CAIR requirements, which remain in effect pending their
replacement and, more recently, because power companies have replaced substantial amounts of
coal-fired generation with cheaper (and cleaner) natural-gas-fired units, electric generators had
already (in 2012) achieved more than two-thirds of the pollution reductions necessary to comply
with the 2014 standards. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
Mercury and Air Toxics Standards / MACT for Electric Generating Units (“Utility
MACT”).
In 2005, EPA promulgated regulations establishing a cap-and-trade system to limit
emissions of mercury from coal-fired power plants. The rules were challenged, and the D.C.
Circuit Court of Appeals vacated them in 2008. Rather than appeal the ruling to the Supreme
Court, EPA agreed to propose and promulgate Maximum Achievable Control Technology
(MACT) standards by the end of 2011. EPA states that the standards for existing units,
promulgated February 16, 2012,71 can be met by 56% of coal- and oil-fired electric generating
units using pollution control equipment already installed; the other 44% would be required to
install technology that will reduce uncontrolled mercury and acid gas emissions by about 90%, at
an annual cost of $9.6 billion. Standards for new facilities are more stringent, and many
(including the industry that manufactures pollution control and monitoring equipment), doubted
whether compliance with the mercury portion of these standards could be measured. In response
to industry petitions, EPA reconsidered the mercury limit for new facilities, and announced
changes to the standards for new facilities on March 29, 2013.
EPA estimates that the annual benefits of the Utility MACT, including the avoidance of up to
11,000 premature deaths annually, will be between $37 billion and $90 billion. Existing power
plants will have until 2015, with a possible one-year extension, to meet the standards. About 20
states have already established mercury emission control standards for coal-fired power plants,
and other major sources have been controlled for as long as 15 years, reducing their emissions as
much as 95%. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).

71 U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants from Coal and
Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility,
Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units,” 77
Federal Register 9304, February 16, 2012.
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Boilers and Incinerators
MACT and Area Source Standards for Boilers. EPA proposed Maximum Achievable Control
Technology standards to control emissions of toxic air pollutants from commercial and industrial
boilers in June 2010. A final rule was issued February 21, 2011, under a court order by the
Federal District Court for the District of Columbia.72 Because of voluminous comments and new
information received from industry during a public comment period, EPA had asked the court to
extend the deadline for promulgating final standards to April 2012. Having been denied that
extension, the agency initiated a reconsideration after it released the final rule, and it promulgated
changes to the rule on January 31, 2013.73 In addition to adjusting the rule’s emission standards,
the January 2013 rule reset the clock for compliance, effectively giving industry almost two
additional years to install control equipment.
Boilers are used throughout industry and in many commercial and institutional facilities. The
D.C. Circuit vacated EPA’s previous MACT rule for this category in 2007, saying EPA had
wrongly excluded many industrial boilers from the definition of solid waste incinerators, which
have more stringent emissions requirements under the Clean Air Act. The vacated rule had
estimated annual costs of $837 million, with a benefit-cost ratio of about 20 to 1. The January
2013 rule will set more stringent standards. It will affect about 14,000 boilers, according to the
agency, with annual costs estimated at $1.2 billion and benefits of $25 billion to $67 billion
annually, including the avoidance of 3,100 to 7,900 premature deaths.
EPA also promulgated what are called “area source” standards for smaller boilers at the same time
as the MACT.74 The area source standards would affect 183,000 boilers, most of which would
only be required to perform a tune-up every two to five years to comply with the regulations. EPA
estimated the net cost of the area source rule to be $490 million annually, with partial benefits
ranging from $210 million to $520 million annually. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
Commercial and Industrial Solid Waste Incinerator (CISWI) Standards. A third regulation
promulgated and reconsidered at the same time as the boiler MACT and area source boiler rules
sets standards for emissions from commercial and industrial solid waste incinerators.75 These
standards are related to the D.C. Circuit’s remand of the boiler rules in 2007; they also faced a
judicial deadline of February 21, 2011, and after being promulgated, were also reconsidered in
early 2013. As reconsidered, the rules would expand the number of existing facilities subject to
the more stringent CISWI standards from 20 to 106, with annual costs of $271 million, according

72 The final rule appeared in the Federal Register March 21, 2011. U.S. Environmental Protection Agency, “National
Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers
and Process Heaters; Final Rule,” 76 Federal Register 15608, March 21, 2011.
73 U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and Institutional Boilers; Final Rule; Notice of Final Action on Reconsideration,” 78
Federal Register 7138, January 31, 2013.
74 U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and Institutional Boilers; Final Rule,” 76 Federal Register 15554, March 21, 2011.
Final action on reconsideration appeared in the February 1, 2013, Federal Register (78 FR 7488).
75 The 2011 standards were: U.S. Environmental Protection Agency, “Standards of Performance for New Stationary
Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units;
Final Rule,” 76 Federal Register 15704, March 21, 2011. The notice of final action on reconsideration is at 78 Federal
Register
9112, February 7, 2013.
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to EPA, and benefits of $380 million-$1 billion annually. For additional information, contact Jim
McCarthy (7-7225, jmccarthy@crs.loc.gov).
Other Clean Air Act Rules
Tier 3 Emissions Standards for Passenger Cars and Light Trucks and Gasoline Standards.
In February 2011, EPA began to scope out new emissions standards for conventional pollutants
(i.e., non-greenhouse gases) from passenger cars and light trucks. In a May 2010 memorandum
from the White House to the EPA Administrator, President Obama had directed EPA to review the
adequacy of the current “Tier 2” emissions standards for these vehicles, which EPA finalized in
February 2000, and were phased in between MY2004 and MY2009.76 EPA proposed “Tier 3”
standards April 13, 2013, and released the final standards March 3, 2014. As with the Tier 2
standards, the proposed Tier 3 standards include changes to both vehicle emission limits and fuel
formulation rules, lowering allowable sulfur content to reduce the fouling of catalytic converters
on existing vehicles and facilitate the use of new technology. The proposal would lower allowable
sulfur from 30 parts per million to a maximum of 10, and would require reductions in vehicle
emissions of 60%-80%. In letters to the EPA Administrator, several Senators have asked EPA to
delay its rulemaking over concerns that the new fuel standards would raise the price of gasoline,77
but EPA maintains that the rule as proposed would add less than a penny a gallon to the price of
gasoline. The rules will be phased in, beginning in 2017. EPA estimates the cost of the rules at
$1.1 billion to $1.5 billion annually, with annual benefits ranging from $7 billion to $19 billion.
For additional information, contact Brent Yacobucci (7-9662, byacobucci@crs.loc.gov) or Rick
Lattanzio (7-1754, rlattanzio@crs.loc.gov).
Ethanol Blend Wall Waiver. Section 211(f) of the Clean Air Act effectively limits the amount of
oxygen in gasoline unless EPA issues a waiver. Since ethanol contains oxygen, an increase in the
ethanol content of gasoline offered for sale can only occur if EPA issues such a waiver. EPA may
issue a waiver if the agency determines that the fuel or fuel additive will not cause or contribute
to the failure of any emission control device or system used by vehicle manufacturers to achieve
compliance with emission standards under the act.
On March 6, 2009, Growth Energy (on behalf of 52 U.S. ethanol producers) applied to EPA for a
waiver from the then-current regulation limiting the ethanol content in gasoline to a maximum of
10% (E10). The application requested an increase in the maximum concentration to 15% (E15). A
complete waiver would allow the use of significantly more ethanol in gasoline than has been
permitted under the Clean Air Act. Limiting ethanol content to 10% leads to an upper bound of
roughly 15 billion gallons of ethanol in all U.S. gasoline. This “blend wall” could limit the fuel
industry’s ability to meet the Energy Independence and Security Act’s future requirements to use
increasing amounts of renewable fuels (including ethanol) in transportation.
On November 4, 2010, EPA granted a partial waiver allowing the use of E15 in Model Year (MY)
2007 vehicles and newer.78 The agency delayed a decision on MY2001-MY2006 vehicles until

76 For more information on the Tier 3 standards, see U.S. EPA, “Tier 3 Vehicle Emission and Fuel Standards Program,”
at http://www.epa.gov/otaq/tier3.htm.
77 Jeremy P. Jacobs, “Bipartisan Senate Group Seeks Delay in EPA Tailpipe Rules,” E&E News PM, January 12, 2012.
Also, “Four Democratic Senators Urge EPA to Issue Advance Notice on Proposed Rule for Tier 3,” Daily Environment
Report
, March 22, 2013.
78 U.S. Environmental Protection Agency, “Partial Grant and Partial Denial of Clean Air Act Waiver Application
(continued...)
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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.79 EPA
determined that data were insufficient to address concerns that had been raised over emissions
from MY2000 and older vehicles, as well as heavy-duty vehicles, motorcycles and nonroad
applications, and thus a waiver for these vehicles/engines was denied.
EPA has noted that granting the waiver eliminates only one impediment to the use of E15—other
factors, including retail and blending infrastructure, state and local laws and regulations, and
manufacturers’ warranties, would still need to be addressed. Because of concerns over potential
damage by E15 to equipment not designed for its use, this partial waiver has been challenged in
court by a group of vehicle and engine manufacturers, although that case was dismissed because
none of the petitioners had been injured in fact.80 On June 23, 2011, EPA issued final rules,
including new labeling requirements, to prevent the accidental use of E15 in vehicles and engines
not approved for its use.
Because of various factors, expansion of E15 supply has been slow. As of late March 2013, only
13 stations in three states (Iowa, Kansas, and Nebraska) had begun selling E15 for use in
conventional vehicles. Further, only three automakers have affirmed that E15 may be used in their
vehicles without voiding warranties.81
In the first quarter of 2013, prices for RFS blending credits (Renewable Identification Numbers,
or RINs) increased dramatically (from roughly $0.08 per gallon in early January to over $1.00 per
gallon in mid-March). The causes of this increase are unclear, but may be driven in part by
concerns from fuel suppliers that the industry is approaching the blend wall and that RINs may be
in short supply. After the mid-March high, RIN prices dropped somewhat, to roughly $0.70 per
gallon in early April. For additional information, contact Brent Yacobucci (7-9662,
byacobucci@crs.loc.gov).
Oil and Natural Gas Air Pollution Standards. In February 2010, EPA signed a consent
agreement under which it was to promulgate revisions of the New Source Performance Standards
and Hazardous Air Pollutant standards for oil and gas production by November 30, 2011. The
agency promulgated these rules on August 16, 2012.82 Under the CAA, EPA is required to review
New Source Performance Standards every eight years; the revisions update NSPS rules for VOCs
and SO2 that were promulgated in 1985. Similarly, EPA had a statutory obligation to review
hazardous air pollutant standards for oil and natural gas production, which were issued in 1999,

(...continued)
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.
79 U.S. Environmental Protection Agency, “Partial Grant of Clean Air Act Waiver Application Submitted by Growth
Energy to Increase the Allowable Ethanol Content of Gasoline to 15 Percent; Decision of the Administrator,” 76
Federal Register 4662, January 26, 2011.
80 Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169 (D.C. Cir. 2012).
81 For example, General Motors has approved the use of E15 in its model year (MY) 2012 and later vehicles, while
Ford has approved E15 for MY2013 and later vehicles. Porsche approves the use of E15 in MY2001 and later cars.
Robert L. Darbelnet, President and CEO, American Automobile Association, “Suspend Sale of E15 Gasoline,” The
Hill
, December 13, 2012.
82 U.S. Environmental Protection Agency, “Oil and Natural Gas Sector: New Source Performance Standards and
National Emission Standards for Hazardous Air Pollutants Reviews; Final Rule,” 77 Federal Register 49490, August
16, 2012. For information, see http://www.epa.gov/airquality/oilandgas/actions.html.
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by 2007. Additionally, the 2012 rules are the first regulations to address emissions from natural
gas wells that use hydraulic fracturing (“fracking”). The new standards, which will be fully
implemented by 2015, will require companies to capture natural gas and volatile organic
compounds (VOCs) that escape when hydraulically fractured gas wells are prepared for
production. The rules affect production, processing, transmission, and storage, but not distribution
to customers. EPA estimates that the rules will result in the capture of 95% of the VOCs otherwise
emitted. Although there are costs associated with the use of equipment to capture the emissions,
EPA estimates that the rules will produce a net annual savings of $11 million to $19 million for
the industry, because the captured gas and condensate can be sold. Some states already require
similar measures, and EPA estimates that about half of fracked natural gas wells already meet the
standards. In 2013, EPA promulgated updates to the storage tank portions of the rules in response
to petitions for reconsideration. The updates would provide additional time for compliance and an
alternative emissions limit.83 Industry groups have filed lawsuits challenging both the 2012
standards and the 2013 updates. For additional information, contact Rick Lattanzio (7-1754,
rlattanzio@crs.loc.gov).
Portland Cement Manufacturing. On September 9, 2010, EPA promulgated New Source
Performance Standards (NSPS) for conventional pollutants from new cement kilns and Maximum
Achievable Control Technology (MACT) standards for hazardous air pollutants from both
existing and new cement kilns.84 When fully implemented in late 2013, the standards would have
required a 92% reduction in emissions of both particulate matter and mercury and a 97%
reduction in emissions of acid gases, according to EPA, as well as controlling other pollutants.
EPA had previously issued emission standards for this industry in 1999, but the standards were
challenged in court and remanded to the agency by the D.C. Circuit Court of Appeals. The new
rules reflect EPA’s reconsideration of the standards.
The agency estimated that it would cost the industry $350 million annually to comply with the
2010 standards, but that benefits (including the avoidance of 960 to 2,500 premature deaths in
people with heart disease) would be worth $6.7 billion to $18 billion annually. The trade
association representing the industry said the standards would cause some facilities to close. In
2011, the D.C. Circuit Court of Appeals remanded the 2010 standards to EPA for the agency to
reconsider emission standards for kilns that use solid waste as fuel. The court did not stay
implementation of the 2010 standards, but EPA, in proposing changes to the particulate portion of
the standards in 2012, announced its intention to give the industry an additional two years to
comply, with a third year available if needed. The changes are estimated to reduce industry costs
by $52 million annually, compared to the 2010 rule. EPA finalized these changes February 12,
2013.85
Further regulation of this industry, which is the third highest stationary U.S. source of carbon
dioxide emissions, has been under consideration: when EPA promulgated the rule in September
2010, it stated in the rule’s preamble to the rule that it is “working towards a proposal for GHG
standards” for these plants.86 It is uncertain when such a rule might be proposed: action on these

83 U.S. Environmental Protection Agency, “Oil and Natural Gas Sector: Reconsideration of Certain Provisions of New
Source Performance Standards,” 78 Federal Register 58416-58448, September 23, 2013.
84 U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants from the
Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants; Final Rule,” 75
Federal Register 54970, September 9, 2010.
85 78 Federal Register 10006, February 12, 2013.
86 Ibid., p. 54997.
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standards was not mentioned in the President’s June 2013 Climate Action Plan. For additional
information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Stationary Internal Combustion Engines. EPA set standards for both compression-ignition87
(generally diesel) and spark ignition (generally gasoline) stationary engines88 in 2010. The agency
subsequently amended the rules on January 30, 2013.89 The regulations would affect stationary
engines, such as emergency power generators used by hospitals and other sources and electric
power generators used for compressors and pumps by a wide array of industrial, agricultural, and
oil and gas industry sources. The rules are referred to as the RICE (Reciprocating Internal
Combustion Engine) rules. They apply to engines that meet specific siting, age, and size criteria
(generally engines of 500 horsepower or less). EPA estimates that more than 1.2 million engines
will be affected by the regulations. Depending on the type of engine, owners will have to install
pollution control equipment or follow certain work practice standards, such as burning low sulfur
fuel or performing oil changes and inspections. EPA estimated that the health benefits of the two
rules will be between $1.45 billion and $3.5 billion annually in 2013. Annualized costs for the
rules were estimated to be $626 million in 2013. EPA states that the 2013 amendments will
reduce the annualized costs by $139 million (to $487 million). The amendments were issued in
response to a suit by the Engine Manufacturers Association. The most controversial of the
amendments allows backup generators to operate for up to 100 hours per year during emergency
or peak power use periods without being subject to emission limits, although they will need to use
low sulfur fuel beginning in 2015. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).
Ocean-Going Ships. EPA took two steps to control emissions from ocean-going ships in 2009
and 2010. It promulgated emission standards for new marine engines90 and it proposed the
establishment of Emission Control Areas (ECAs) extending 200 nautical miles off most U.S.
shores.91 In the ECAs, which received final approval in March 2010, both U.S. and foreign ships
were required to use low sulfur fuel, beginning in 2012. In both cases, the actions reflect
international standards that the United States and other maritime nations have agreed to under the
International Convention for the Prevention of Pollution from Ships (MARPOL). EPA estimated
the cost of these two initiatives at over $3 billion annually by 2030, mostly attributable to the
cleaner fuel requirement. The agency also estimated that monetized benefits of the requirements
will exceed costs by more than 30 to 1. The ECAs and the new standards were supported by both
industry and environmental groups, and have been extended to cover the U.S. Caribbean,
beginning in 2014. In July 2012, however, controversy arose over the requirement that ships in
Alaskan waters use low sulfur fuel, with the state of Alaska filing suit to block implementation of
the fuel requirement. For additional information, contact Jim McCarthy (7-7225,
jmccarthy@crs.loc.gov).

87 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.
88 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.
89 78 Federal Register 6674, January 30, 2013.
90 U.S. Environmental Protection Agency, “Control of Emissions from New Marine Compression-Ignition Engines at
or Above 30 Liters per Cylinder; Final Rule,” 75 Federal Register 22896, April 30, 2010.
91 International Maritime Organization, Marine Environmental Protection Committee, “Proposal to Designate an
Emission Control Area for Nitrogen Oxides, Sulphur Oxides and Particulate Matter, Submitted by the United States
and Canada,” April 2, 2009, at http://www.epa.gov/oms/regs/nonroad/marine/ci/mepc-59-eca-proposal.pdf.
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Flares and Process Heaters at Petroleum Refineries. On September 12, 2012, EPA
promulgated amendments to New Source Performance Standards for flares and process heaters at
petroleum refineries.92 The amendments are the result of the agency’s reconsideration of
standards it promulgated on June 24, 2008. The agency estimates that the reconsidered rules will
have capital costs of $460 million, but will result in savings to the industry of $79 million per
year, while resulting in monetized benefits of $240 million to $580 million annually, principally
from the avoided health impacts caused by reduced emissions of sulfur dioxide and nitrogen
oxides. For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Mercury Cell Chlor-Alkali MACT Standards. In December 2003, EPA promulgated MACT
standards for emissions of hazardous air pollutants from plants that manufacture chlorine using
the mercury cell chlor-alkali process. This is an old technology that has been phased out by 95%
of the chlorine industry. At the time of the rule’s promulgation, there were 12 plants still using the
technology; but as of late 2012, there were only four, two of which were expected to close by
early 2013.
EPA was asked to reconsider the 2003 standards by the Natural Resources Defense Council
(NRDC), and it agreed to do so. NRDC argues that EPA should have required the remaining
chlor-alkali plants to switch to newer technology that does not use mercury. After developing new
data on the costs of converting plants to non-mercury technology, EPA proposed revised
standards on June 11, 2008. The revised standards would not have required the technology
switch, but would have required more stringent work practice requirements.
As a result of comments on the June 2008 proposal, the agency proposed a supplement to that
proposal on March 14, 2011.93 The 2011 supplement contains two options: the first would require
the elimination of mercury emissions, effectively requiring conversion to non-mercury-cell
technology. The second option would require a strengthening of work practices (as proposed in
2008) to reduce (but not eliminate) emissions. EPA estimated the annual compliance costs of
Option 1 at $13 million, with benefits ranging from $21 million to $43 million, but it conceded
that there is still uncertainty regarding numerous facets of the cost analysis, and it requested
further comments. Option 2 was estimated to have annual costs of $25,000, with no monetized
benefits. For additional information, contact Jim McCarthy (7-7225, jmccarthy@crs.loc.gov).
Clean Water Act
Pesticide Application General Permit. EPA has developed a Clean Water Act (CWA) general
permit to control pesticides that are applied to waters of the United States, such as aerial
application of insecticide to control mosquitoes. The general permit was issued on October 31,
2011, in response to a 2009 federal court decision that invalidated a 2006 EPA rule, which had
codified the agency’s long-standing view that pesticide applications that comply with federal
pesticides law do not require CWA permits.94 The estimated universe of affected activities is

92 U.S. Environmental Protection Agency, “Standards of Performance for Petroleum Refineries; Performance Standards
for Petroleum Refineries for Which Construction, Reconstruction, or Modification Began After May 14, 2007,” 77
Federal Register, 56422, September 12, 2012.
93 U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants: Mercury
Emissions from Mercury Cell Chlor-Alkali Plants; Supplemental Proposed Rule,” 76 Federal Register 13852, March
14, 2011.
94 U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination System (NPDES) General
(continued...)
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approximately 5.6 million applications annually, which are performed by 365,000 applicators, in
four use patterns: mosquito and other flying insect pest control, aquatic weed and algae control,
aquatic nuisance animal control, and forest canopy pest control. The permit requires all operators
covered by the permit to minimize pesticide discharges to waters by practices such as using the
lowest amount of pesticide product that is optimal for controlling the target pest. It also requires
operators to prepare plans to document their pest management practices. Under OMB’s criteria,
the permit is not a significant rule, but is “economically significant.”95 Meanwhile, in the 113th
Congress, legislation intended to overturn the court’s 2009 ruling by exempting aerial pesticide
application activities from clean water permit requirements was introduced (H.R. 935, S. 175, and
S. 802); the House passed H.R. 935.96 For additional information, contact Claudia Copeland (7-
7227, ccopeland@crs.loc.gov).
Florida Nutrient Water Quality Standards. The CWA directs states to adopt water quality
standards for their waters and authorizes EPA to promulgate new or revised standards if a state’s
actions fail to meet CWA requirements. Water quality standards consist of designated uses,
criteria to protect the designated uses, and an antidegradation statement. They serve as the
framework for pollution control measures specified for individual sources. Because of severe
water quality impairment of Florida waters by nutrients (nitrogen and phosphorus) from diverse
sources including agriculture and livestock, municipal and industrial wastewater discharges, and
urban stormwater runoff, EPA determined in 2009 that Florida’s existing narrative water quality
standards for nutrients must be revised in the form of numeric criteria that will enable Florida to
better control nutrient pollution. In 2009 EPA entered into a consent decree with environmental
litigants requiring the agency to promulgate numeric nutrient water quality standards for Florida.
To meet the legal deadline, EPA promulgated the first phase of these standards, called the “inland
waters rule,” in December 2010. Water quality standards do not have the force of law until the
state translates them into permit limits or otherwise imposes pollution control requirements on
dischargers. The rule would not establish any requirements directly applicable to regulated
entities or other sources of nutrient pollution.
The 2010 rule did not go into effect, because, in response to criticism of the standards, EPA
delayed the effective date of the rule to allow local governments, businesses, and the state of
Florida time to review the standards and develop implementation strategies. While few dispute
the need to reduce nutrients in Florida’s waters, EPA’s 2010 rule has been controversial, involving
disputes about the data underlying the proposal, potential costs of complying with numeric
standards when they are incorporated by the state into discharge permit limitations, and disputes
over administrative flexibility. EPA has said all along that it prefers that Florida implement its
own numeric nutrient water quality criteria, and in June 2012 the state submitted revised
standards with numeric nutrient criteria. In response, EPA indicated to the state that the agency

(...continued)
Permit for Point Source Discharges from the Application of Pesticides; Notice of final permit,” 76 Federal Register
68750-68756, November 7, 2011.
95 “Significant” rules are a broader OMB category that includes not only the economically significant (i.e., primarily
those with an annual effect on the economy of $100 million or more), but also rules that “create a serious inconsistency
or otherwise interfere with an action taken or planned by another agency”; “materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof”; or “raise novel
legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth” in Executive
Order 12866.
96 For additional information, see CRS Report RL32884, Pesticide Use and Water Quality: Are the Laws
Complementary or in Conflict?
, by Claudia Copeland.
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likely would approve the standards, at which time the agency would initiate administrative action
to repeal the 2010 federal rule. EPA’s deadline for issuing the second phase of standards, for
estuaries, coastal waters, and flowing waters in the South Florida Region, also was extended
several times to allow the state to develop its own standards.
In March 2013, EPA and the state reached agreement in principle on steps that will put the state in
charge of determining numeric limits on nutrient pollution in Florida waterways. Under that
agreement, Florida pledged to move forward with rulemaking and legislation to complete the job
of setting numeric nutrient criteria for Florida waterways. In response to the state’s actions, EPA
approved the state’s implementation plan for controlling nutrient pollution in Florida waters and
petitioned the federal court in Florida to allow it to approve the state’s water quality standards,
although they lack numeric criteria for all waters. In January 2014, the court agreed to amend the
2009 consent decree in light of the adoption of new nutrient criteria, thus lifting the requirement
for EPA to issue numeric nutrient standards under the second phase of rulemaking, and in
September 2014, EPA finalized a rule withdrawing the overlapping federally promulgated water
quality standards to allow Florida to implement its standards to address nutrient pollution.97
Environmental groups have criticized EPA’s approval of the standards that Florida has adopted,
saying that EPA’s actions are inconsistent with its 2009 determination that numeric criteria are
necessary to protect Florida’s waters. Their legal challenge to the plan was rejected by the court’s
January 2014 ruling, but the groups have appealed the ruling. EPA’s actions have drawn
congressional attention. A bill in the 113th Congress (H.R. 1948) would have restricted EPA’s
oversight of state water quality standards. For additional information, contact Claudia Copeland
(7-7227, ccopeland@crs.loc.gov).
Chesapeake Bay TMDL. Pursuant to a court-ordered schedule, EPA has developed a plan, called
a Total Maximum Daily Limit (TMDL), to restore nutrient-impaired waters of the Chesapeake
Bay. The TMDL is required because jurisdictions in the Chesapeake Bay watershed have failed to
meet deadlines to attain water quality goals for the Bay, thus triggering Clean Water Act
requirements that the federal government must develop a plan to do so. The TMDL is not a
regulation. A TMDL represents the maximum amount of a pollutant that a body of water may
receive and still meet its water quality standards.98 Individual actions needed to meet the overall
pollutant limits specified in the TMDL, such as discharge permit limits or other controls, are to be
developed by the Chesapeake Bay jurisdictions in Watershed Implementation Plans. The
Chesapeake Bay TMDL is the largest ever developed by EPA or any state, since it will apply to
all impaired waters of the 64,000 square miles of the six states in the Bay watershed. On
December 29, 2010, EPA issued the TMDL.99 Pursuant to the schedule of steps in the TMDL,
jurisdictions are now developing specific plans called Watershed Implementation Plans (WIPs),
which outline the types of controls and best management practices that will be used to reduce
pollution in the Bay. EPA approved the first phase WIPs in December 2010, and also has
reviewed the jurisdictions’ Phase II WIPs, which provide greater detail about pollutant reductions
planned through the year 2017. The TMDL has been controversial with agricultural and other
groups that are concerned about the likely mandatory nature of many of EPA’s and states’

97 For additional information, see http://water.epa.gov/lawsregs/rulesregs/florida_index.cfm.
98 For additional information, see CRS Report R42752, Clean Water Act and Pollutant Total Maximum Daily Loads
(TMDLs)
, by Claudia Copeland.
99 Notice of the TMDL appeared in the Federal Register January 5, 2011. U.S. Environmental Protection Agency,
“Clean Water Act Section 303(d): Notice for the Establishment of the Total Maximum Daily Load (TMDL) for the
Chesapeake Bay,” 76 Federal Register 549-550, January 5, 2011.
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upcoming actions. In September 2013, a federal court upheld the TMDL, in a lawsuit filed by the
American Farm Bureau Federation that had challenged EPA’s authority to set pollution limits in
the multistate plan. That ruling has been appealed. For additional information, contact Claudia
Copeland (7-7227, ccopeland@crs.loc.gov).
Airport Deicing Effluent Limitations Guidelines and New Source Performance Standards.
In April 2012, EPA promulgated regulations under the CWA to limit water pollution from aircraft
and airport runway deicing operations.100 The rule is intended to limit runoff of deicing fluid,
because it contains urea and other contaminants that contribute to low oxygen levels in streams,
which can cause fish kills, algal blooms, and contamination of surface water or groundwater. The
rule, which had been under development for several years and was proposed in 2009, is part of
ongoing EPA activities under the CWA to regulate wastewater discharges from categories of
industries through new and revised effluent limitations guidelines. EPA estimated that the final
rule will reduce the volume of deicing-related pollutants by 16.4 million pounds at a cost of $3.5
million annually. Those estimates are substantially less than the 44.6 million pounds of pollutants
estimated in the proposed rule, which was projected to cost the industry $91.3 million annually.
EPA estimated that the final rule will apply to 198 existing airports. For additional information,
contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
Construction Site Effluent Limitations Guidelines. On December 1, 2009, EPA promulgated
regulations under the Clean Water Act (CWA), called effluent limitations guidelines (ELGs), to
limit pollution from stormwater runoff at construction sites.101 The rule, called the Construction
and Development, or C&D, ELG, took effect February 1, 2010. OMB determined that it is an
economically significant rule. It requires construction sites that disturb one or more acres of land
to use erosion and sediment control best management practices to ensure that soil disturbed
during construction activity does not pollute nearby waterbodies. For construction sites disturbing
10 acres or more, the rule established, for the first time, enforceable numeric limits on stormwater
runoff pollution. EPA issued the rule in response to a 2004 lawsuit filed by an environmental
group; in 2006, a federal court ordered EPA to issue a final rule by December 1, 2009. The rule
affects about 82,000 firms nationwide involved in residential, commercial, highway, street, and
bridge construction. EPA has issued effluent guidelines for 56 industries that include many types
of discharges, such as manufacturing and service industries. These guidelines are implemented in
discharge permits issued by states and EPA. Several industry groups challenged the C&D ELG. In
response, EPA examined the data set underlying a portion of the rule and concluded that it
improperly interpreted the data. In August 2010, a federal appeals court granted EPA’s request for
remand of a portion of the rule to conduct a rulemaking to correct the numeric effluent limitation.
In November 2010, EPA promulgated a direct final rule to stay the effectiveness of the numeric
turbidity limit in the 2009 rule; other portions of the rule remain in effect.102 To resolve industry
challenges to the 2009 rule, in March 2014, EPA finalized modifications of the 2009 rule,
including withdrawal of the numeric turbidity effluent limitations in the 2009 rule, which had
been controversial, and changes specific to the non-numeric portions of the rule. The effluent
limits in the 2014 rule emphasize best practices to manage erosion and stabilize soils during

100 U.S. Environmental Protection Agency, “Effluent Limitations Guidelines and New Source Performance Standards
for the Airport Deicing Category; Final rule,” 77 Federal Register 29168-29205, May 16, 2012.
101 U.S. Environmental Protection Agency, “Effluent Limitation Guidelines for the Construction and Development
Point Source Category,” 74 Federal Register 62996-63058, December 1, 2009.
102 U.S. Environmental Protection Agency, “Direct Final Rule Staying Numeric Limitation for the Construction and
Development Point Source Category,” 75 Federal Register 68215-68217, November 5, 2010.
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construction. If more data on numeric discharge standards for construction sites become
available, EPA could initiate a new rulemaking in the future.103 For additional information,
contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
“Post-Construction” Stormwater Rule. For some time, EPA has explored options to strengthen
the existing regulatory program for managing stormwater, which is a significant source of water
quality impairments nationwide. Under the current program, large cities and most industry
sources are subject to CWA rules issued in 1990; smaller cities, other industrial sources, and
construction sites are covered by rules issued in 1999. Among the options that EPA considered to
strengthen stormwater regulations was establishing rules containing post-construction
requirements for stormwater discharges from new development and redevelopment, which
currently are not regulated, focusing on stormwater discharges from developed or post-
construction sites such as subdivisions, roadways, industrial facilities and commercial buildings,
or shopping centers. Under a consent agreement with environmental groups, EPA was expected to
propose a rule in 2013, and to issue a final rule by December 2014. EPA’s efforts to develop the
stormwater rule were controversial and, apparently, technically challenging, and the agency
missed the 2013 deadline to propose a rule. In March 2014 EPA announced that it is deferring
action on the stormwater rule and instead will provide incentives, technical assistance, and other
approaches for cities and towns to address stormwater runoff themselves.104 For additional
information, contact Claudia Copeland (7-7227, ccopeland@crs.loc.gov).
Revised Cooling Water Intake Rule. Thermoelectric generating plants and manufacturing
facilities withdraw large volumes of water for production and, especially, to absorb heat from
their industrial processes. Water withdrawals by power producers and manufacturers represent
more than one-half of water withdrawn daily for various uses in the United States. Although
water withdrawal is a necessity for these facilities, it also presents special problems for aquatic
resources. In particular, the process of drawing surface water into the plant through cooling water
intake structures (CWIS) can simultaneously pull in fish, shellfish, and tiny organisms, injuring or
killing them. On May 19, 2014, EPA promulgated a CWA rule to protect fish from entrainment by
cooling water intake structures at existing power plants and certain other industrial facilities. The
final rule applies to approximately 1,065 existing electric generating and manufacturing plants.105
The proposed CWIS rule was highly controversial. Many in industry had feared, while
environmental groups had hoped, that EPA would require installation of technology that most
effectively minimizes impacts of cooling water intake structures, but also is the most costly
option. The EPA proposal declined to mandate such technology universally and instead favored a
less costly, more flexible regulatory option. In the 2014 final rule, EPA again declined to mandate
closed-cycle cooling as a uniform requirement and provided several compliance options that are
more flexible and less costly than the proposal.106 Legal challenges to the final rule have been

103 U.S. Environmental Protection Agency, “Effluent Limitations Guidelines and Standards for the Construction and
Development Point Source Category, Final rule,” 79 Federal Register 12661-12667, March 6, 2014.
104 For additional information, see CRS Report 97-290, Stormwater Permits: Status of EPA’s Regulatory Program, by
Claudia Copeland
105 U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System—Final Regulations to
Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I
Facilities; Final Rule,” 79 Federal Register 48300-48439, August 15, 2014.
106 For more information, see CRS Report R41786, Cooling Water Intake Structures: Summary of the EPA Rule, by
Claudia Copeland.
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filed by industry and environmental groups. For additional information, contact Claudia Copeland
(7-7227, ccopeland@crs.loc.gov).
Oil Spill Prevention, Control, and Countermeasure Requirements, including deadline
extension for farms and exemption for milk storage.
To prevent the discharge of oil from
onshore and offshore facilities, EPA issued CWA regulations for spill prevention control and
countermeasure (SPCC) plans in 1973.107 SPCC plans apply to owners or operators of certain
non-transportation-related facilities. In general, SPCC plans focus on oil spill prevention,
requiring, for example, secondary containment (e.g., dikes or berms) for oil-storage equipment.
Following the passage of the Oil Pollution Act of 1990, the agency proposed substantial changes
and clarifications that were not made final until July 2002.108 However, EPA has both extended
the 2002 rule’s compliance date (on multiple occasions) and made further amendments to the
2002 rule. On one occasion, amendments offered by the Bush Administration’s EPA in 2008 were
eliminated by the Obama Administration’s EPA the following year.109
For most types of facilities subject to SPCC requirements, the deadline for complying with the
changes made in 2002 was November 10, 2011.110 However, in a November 2011 rulemaking,
EPA extended the compliance date for farms to May 10, 2013.111
Pursuant to the CWA definition of oil, the SPCC requirements apply to petroleum-based and non-
petroleum-based oil.112 In a 1975 Federal Register notice, EPA clarified that its 1973 SPCC
regulations apply to oils from animal and vegetable sources.113 EPA subsequently stated that
“milk typically contains a percentage of animal fat, which is a non-petroleum oil” and is thus
potentially subject to SPCC provisions.114 However, in January 2009, EPA proposed a conditional
exemption from SPCC requirements for milk storage units.115 EPA issued a final rule April 18,
2011, exempting all milk and milk product containers and associated piping from the SPCC
requirements. EPA’s rationale for the exemption is that these units are subject to industry
standards for sanitation and may be regulated by other agencies, including the U.S. Department of
Agriculture.116 In addition, the final rule states that exempted milk storage units are not included
in a facility’s overall oil storage volume, a primary factor for SPCC applicability. For additional
information, contact Jonathan Ramseur (7-7919, jramseur@crs.loc.gov).

107 38 Federal Register 34164, December 11, 1973.
108 67 Federal Register 47041, July 17, 2002.
109 A November 13, 2009 rule (74 Federal Register 58784) eliminated specific exclusions/exemptions made by a
December 5, 2008 rulemaking (73 Federal Register 74236).
110 U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure
Rule Compliance Date Amendment,” 75 Federal Register 63093, October 14, 2010.
111 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.
112 See CWA Section 311(a) (33 U.S.C. 1321(a)).
113 40 Federal Register 28849, July 9, 1975.
114 74 Federal Register 2461, January 15, 2009.
115 U.S. Environmental Protection Agency, “Oil Pollution Prevention: Spill Prevention, Control, and Countermeasure
Rule Requirements—Amendments,” 74 Federal Register 2461, January 15, 2009.
116 76 Federal Register 21652, April 18, 2011.
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Toxic Substances Control Act
Lead: Renovation, Repair, and Painting Program Rules. EPA has revised a 2008 final rule
implementing Section 402(c)(3) of the Toxic Substances Control Act (TSCA; enacted as the
Residential Lead-Based Paint Hazard Reduction Act of 1992.) The rule aims to reduce human
health hazards associated with exposure to lead-based paint. It established requirements for
training and certifying workers and firms that remodel, repair, or paint homes or child-occupied
public or commercial buildings likely to contain lead-based paint (generally built before 1978).117
Shortly after promulgation of the 2008 version of the rule, several petitions were filed challenging
it. The U.S. Court of Appeals for the District of Columbia Circuit consolidated the petitions and,
in August 2009, EPA signed a settlement agreement with the petitioners. The agreement set legal
deadlines for a number of EPA rulemaking actions; two rules have been promulgated; one rule
remains under development (see previous discussion of “Toxic Substances Control Act (TSCA)”).
Amendments to the rule promulgated May 6, 2010, eliminated an opt-out provision that would
have exempted a renovation firm from training and work practice requirements if certification
were obtained from the property owner that no child under age 6 or pregnant woman resides in a
facility and no children spend significant amounts of time there.118 The amendment also revised
recordkeeping and disclosure provisions. In 2010, Congress included a provision in P.L. 111-212,
a supplemental appropriations act, which prohibited the use of “funds made available by this Act”
to levy fines or to hold any person liable for work performed under the rule. However, P.L. 111-
212 provided no funds to EPA for those purposes, so the provision had no effect on EPA’s use of
existing funds that had been appropriated in P.L. 111-88 to enforce the rule.119 In June 2010, on its
own initiative, EPA published a memorandum informing enforcement division directors in the
regional offices that the Agency would not enforce certain requirements for certification of firms
or for individual training until after October 1, 2010. However, individual renovators must have
been enrolled in required training classes before that date and all must have completed required
training prior to December 31, 2010, according to the memorandum. In the 113th Congress, H.R.
2093/S. 484 would have amended provisions of TSCA to restore the opt-out provision.
A second rule responding to the 2009 settlement agreement was proposed in May 2010. It
addressed the testing requirements after renovations are complete.120 That rule was revised and
promulgated July 15, 2011, effective October 4, 2011.121 EPA decided not to promulgate dust
wipe testing and clearance requirements as proposed. Instead it “promulgated several other
revisions to the rule, including a provision allowing a certified renovator to collect a paint chip
sample and send it to a recognized laboratory for analysis in lieu of using a lead test kit.”122 In the
113th Congress, H.R. 2093/S. 484 would have amended provisions of TSCA to prohibit EPA

117 For a complete history of this rule, see EPA’s website “Lead Renovation, Repair, and Painting Program Rules” at
http://www2.epa.gov/lead/lead-renovation-repair-and-painting-program-rules.
118 U.S. Environmental Protection Agency, “Amendment to the Opt-out and Recordkeeping Provisions in the
Renovation, Repair, and Painting Program: Lead; Final Rule,” 75 Federal Register 24802-24819, May 6, 2010.
119 Sven-Erik Kaiser, EPA Congressional Liaison, personal communication, September 14, 2011.
120 U.S. Environmental Protection Agency, “Clearance and Clearance Testing Requirements for the Renovation,
Repair, and Painting Program: Lead; Proposed Rule,” 75 Federal Register 25038-25073, May 6, 2010.
121 U.S. Environmental Protection Agency, “Lead: Clearance and Clearance Testing Requirements for the Renovation,
Repair, and Painting Program,” Final Rule, 76 Federal Register 47918-47946, July 15, 2011.
122 EPA, “Lead; Clearance and Clearance Testig Requirements for the Renovation, Repair and Painting Program,”
http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2005-0049-1434.
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enforcement of the renovation rule until the Administrator has identified a test kit for lead in paint
samples. For additional information, contact Jerry Yen (7-9113, jyen@crs.loc.gov).
Solid Waste (RCRA)
Coal Combustion Waste. In 2012, coal-fired power plants accounted for 37% of U.S. electric
power, resulting in approximately 110 million tons of coal combustion waste (CCW). On
December 22, 2008, national attention was turned to risks associated with managing CCW when
a breach in a surface impoundment pond at the Tennessee Valley Authority’s Kingston, TN, plant
released 1.1 billion gallons of coal ash slurry, covering hundreds of acres and damaging or
destroying homes and property. In addition to the risk of a sudden, catastrophic release such as
that at Kingston, EPA has determined that CCW disposal in unlined landfills and surface
impoundments presents substantial risks to human health and the environment from releases of
toxic constituents (particularly arsenic and selenium) into surface and groundwater. To establish
national standards intended to address risks associated with potential CCW mismanagement, on
June 21, 2010, EPA proposed two regulatory options to manage the waste.123 The first option
would have drawn on EPA’s existing authority to identify a waste as hazardous and would have
regulated it under the waste management standards established under Subtitle C of the Resource
Conservation and Recovery Act (RCRA). The second option would have established national
standards for landfills and surface impoundments that receive coal combustion residuals under
RCRA’s Subtitle D solid waste management requirements. Under Subtitle D, EPA does not have
the authority to implement or enforce its proposed requirements. Instead, EPA would rely on
states or citizen suits to enforce new standards. In its Regulatory Impact Analysis, EPA estimated
the average annualized regulatory costs to be approximately $1.5 billion a year under the Subtitle
C option or $587 million a year under the Subtitle D option, but there could be additional costs or
benefits depending on how the rule affects the recycling of coal ash.
Under a consent decree,124 EPA finalized the rule on December 19, 2014, choosing to regulate
CCW under the Subtitle D option.125 For additional information, contact Linda Luther (7-6852,
lluther@crs.loc.gov).
Identification of Non-Hazardous Materials That Are Solid Wastes When Burned. In
conjunction with emission standards for boilers and solid waste incinerators (see discussion of
“Boilers and Incinerators” in this Appendix), in February 2011, EPA finalized regulations
intended to clarify when certain materials burned as fuel in a combustion unit would be
considered a “solid waste.”126 The definition of solid waste plays an important role in
implementing the emission standards for both boilers and solid waste incinerators. The 2007 D.C.
Circuit Court of Appeals decision that vacated EPA’s previous emission standards for boilers also
vacated EPA’s definition of terms under its “CISWI Definitions Rule.”127 The D.C. Circuit

123 U.S. Environmental Protection Agency, “Hazardous and Solid Waste Management System; Identification and
Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities,” 75 Federal Register
35127-35264, June 21, 2010.
124 Appalachian Voices et al. v. Gina McCarthy, Case No. 1:12-cv-00523 (D.D.C.), January 29, 2014.
125 A prepublication version of the final rule is available at http://www2.epa.gov/sites/production/files/2014-12/
documents/ccr_finalrule_prepub.pdf.
126 Environmental Protection Agency, Final Rule, “Identification of Non-Hazardous Secondary Materials That Are
Solid Waste,” 76 Federal Register 15455, March 21, 2011.
127 Environmental Protection Agency, Final Rule, “Standards of Performance for New Stationary Sources and Emission
(continued...)
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concluded that EPA erred in defining “commercial and industrial solid waste” to exclude solid
waste that is burned at a facility in a combustion unit whose design provides for energy recovery
or which operates with energy recovery. Instead, the D.C. Circuit stated that the Clean Air Act
“requires any unit that combusts ‘any solid waste material at all’—regardless of whether the
material is being burned for energy recovery—to be regulated as a ‘solid waste incineration
unit.’”128
The 2011 final rule addresses issues brought up by the D.C. Circuit and, in doing so, significantly
narrows the current universe of non-hazardous secondary materials that could be burned in
boilers.129 EPA anticipates that boiler operators that burn materials newly identified as a solid
waste would switch to a non-waste fuel, rather than being subject to the more stringent emission
standards applicable to solid waste incinerators. The final rule also addresses a host of concerns
raised by various stakeholders during the public comment period for the proposed rule, including
those of several Members of Congress. In particular, the final rule clarifies that the definition of
solid waste would not affect current used oil recycling regulations (which allows burning used oil
in space heaters, under certain conditions) and explicitly excludes from the definition of solid
waste “scrap tires used in a combustion unit that are … managed under the oversight of
established tire collection programs.” EPA states that this regulatory action would not directly
invoke any costs or benefits. Instead, any costs or benefits would be related to the Boiler MACT
and CISWI Standards (discussed above). On February 7, 2013, EPA amended the 2011 rule to
clarify specific elements of the regulations. The amendments were jointly promulgated with
EPA’s reconsideration of the CISWI proposed rule (discussed above). For additional information,
contact Linda Luther (7-6852, lluther@crs.loc.gov).

Author Contact Information

James E. McCarthy
Claudia Copeland
Specialist in Environmental Policy
Specialist in Resources and Environmental Policy
jmccarthy@crs.loc.gov, 7-7225
ccopeland@crs.loc.gov, 7-7227

Key Policy and Legal Staff
CRS analysts, listed below, contributed to this report.

(...continued)
Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units,” 70 Federal Register
55568, September 22, 2005.
128 This and related court finding are discussed in the final rule at 76 Federal Register 15461.
129 See EPA’s web page “Identification of Non-Hazardous Materials That Are Solid Waste: Final Rulemaking” at
http://www.epa.gov/epawaste/nonhaz/define/index.htm.
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Area of Expertise
Name
Phone
Email
Regulatory reform
Maeve Carey
7-7775
mcarey@crs.loc.gov
Clean Water Act
Claudia Copeland
7-7227
ccopeland@crs.loc.gov
Clean Air Act, oil and natural gas
Rick Lattanzio
7-1754
rlattanzio@crs.loc.gov
Solid Waste
Linda Luther
7-6852
l uther@crs.loc.gov
Clean Air Act
Jim McCarthy
7-7225
jmccarthy@crs.loc.gov
Environmental law
Rob Meltz
7-7891
rmeltz@crs.loc.gov
Oil Spill Prevention
Jonathan Ramseur
7-7919
jramseur@crs.loc.gov
Safe Drinking Water Act and
Mary Tiemann
7-5937
mtiemann@crs.loc.gov
underground storage tanks
Clean Air Act, mobile sources, CAFE
Brent Yacobucci
7-9662
byacobucci@crs.loc.gov
Toxic Substances Control Act
Jerry Yen
7-9113
jyen@crs.loc.gov

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