James E. McCarthy
Specialist in Environmental Policy
On June 4, 2010, the U.S. Environmental Protection Agency (EPA) proposed Maximum Achievable Control Technology standards for boilers (the “boiler MACT”), as Congress required in the 1990 amendments to Section 112 of the Clean Air Act. Boilers are used as power sources throughout industry and for power or heat by large commercial and industrial establishments as well. Thus, there is widespread interest in the proposed rule’s requirements and their potential effects.
EPA proposed the regulations because it has found, based on emissions data, that boilers (including coal-fired and biomass-fired boilers) are major sources of hazardous air pollutants (HAPs). The Clean Air Act defines a major source as any facility that emits 10 tons or more of a single listed HAP or 25 tons of any combination of HAPs annually. The HAPs themselves (187 substances) were listed by Congress in the 1990 Clean Air Act Amendments.
The proposed rule would replace a rule promulgated September 13, 2004, and subsequently vacated and remanded to the agency by the D.C. Circuit Court of Appeals. EPA is under a court order to promulgate a replacement rule by January 16, 2011. Existing facilities would then have three years to comply with the standards, unless the courts intervene again.
EPA estimates that the rule would affect 13,555 boilers and process heaters, with capital costs of $9.5 billion; annualized costs, which spread the costs of capital over the expected life of the equipment and include operating and maintenance costs as well, are estimated at $2.9 billion per year. A majority of these costs would be borne by coal-fired and biomass-fired boilers, which together account for only 7.4% of all the existing units covered by the rule. In order to comply, the coal-fired and biomass-fired units may need to install fabric filters (also known as baghouses) to achieve control of mercury and particulate matter; wet scrubbers to meet limits on hydrogen chloride and other acid gases; replacement burners, tune-ups, and combustion controls for carbon monoxide and organic HAPs; and carbon injection for mercury, dioxins, and furans. Most boilers – 85% of those affected by the rule—are fueled by natural gas. Natural-gas-powered boilers would experience cost savings under the rule, according to the agency.
EPA estimates that the benefits – including the avoidance of 1,900 to 4,800 premature deaths – would outweigh the costs by at least $14 billion annually. Nevertheless, the affected industries have raised a number of objections to the proposal. Besides the potential economic impacts, one issue is whether EPA should have identified additional subcategories of the boiler universe, giving it greater flexibility to set less stringent standards. Others maintain that the agency should have exercised its authority to set less stringent standards for hydrogen chloride and other acid gases (which make up 61% of the total emissions of HAPs) under a subsection of the statute that gives the Administrator flexibility to set less stringent standards for HAPs that have a health threshold (i.e., substances that are not harmful if emitted in amounts below some threshold). Another issue is whether EPA’s method of identifying the emissions of the best performing existing units correctly interprets the agency’s authority under the statute. Each of these issues is discussed in this report.
Numerous congressional offices have written the EPA Administrator concerning the proposed rule. EPA must address these and other public comments when it promulgates the final version, expected in January. Following promulgation, interested parties have 60 days to file a petition for court review.
Date of Report: October 21, 2010
Number of Pages: 16
Order Number: R41459
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Jonathan L. Ramseur
Specialist in Environmental Policy
This report summarizes provisions of selected legislation—enacted and proposed—that address oil spill policy issues raised after the April 20, 2010, explosion and resulting oil spill at the Deepwater Horizon drilling platform in the Gulf of Mexico.
The 2010 Gulf oil spill has generated considerable interest in oil spill issues. The House of Representatives has conducted at least 33 hearings in 10 committees. The Senate has conducted at least 30 hearings in eight committees. Members have introduced over 150 legislative proposals that have included one or more provisions that would affect oil spill policy.
As of the date of this report, President Obama has signed two bills into law that include oil spill provisions. Provisions in these bills are generally short-term matters that will not have a lasting impact on oil spill governance. However, H.R. 3619, the Coast Guard Authorization Act for Fiscal Years 2010 and 2011, which was presented to the President for signature (October 4, 2010) includes more substantial changes.
In addition to the enacted legislation, the House has passed several bills, including H.R. 3534, the Consolidated Land, Energy, and Aquatic Resources Act (CLEAR Act), that include multiple oil spill policy provisions. The Senate has comparable bills on its Legislative Calendar, but has not voted on their passage.
This report focuses primarily on oil spill policy matters that concern prevention, preparedness, response, and the liability and compensation framework. For the most part, the underlying statutes for these provisions are found in either the Oil Pollution Act of 1990 (P.L. 101-380; 33 U.S.C. 2701 et seq.) or the Clean Water Act and its amendments (33 U.S.C. 1251 et seq.). In general, this report does not address legislation that would alter the organizational structure of the former Minerals Management Service (MMS) or legislation that would affect the offshore leasing process.
Date of Report: October 15, 2010
Number of Pages: 28
Order Number: R41453
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Randy Schnepf
Specialist in Agricultural Policy
Brent D. Yacobucci
Specialist in Energy and Environmental Policy
Federal policy has played a key role in the emergence of the U.S. biofuels industry. Policy measures include minimum renewable fuel usage requirements, blending and production tax credits, an import tariff, loans and loan guarantees, and research grants. This report focuses on the mandated minimum usage requirements—referred to as the Renewable Fuel Standard (RFS)— whereby a minimum volume of biofuels is to be used in the national transportation fuel supply each year. It describes the general nature of the RFS mandate and its implementation, and outlines some emerging issues related to the sustainability of the continued growth in U.S. biofuels production needed to fulfill the expanding RFS mandate, as well as the emergence of potential unintended consequences of this rapid expansion.
Congress first established an RFS with the enactment of the Energy Policy Act of 2005 (EPAct, P.L. 109-58). This initial RFS (referred to as RFS1) mandated that a minimum of 4 billion gallons be used in 2006, and that this minimum usage volume rise to 7.5 billion gallons by 2012. Two years later, the Energy Independence and Security Act of 2007 (EISA, P.L. 110-140) superseded and greatly expanded the biofuels blending mandate. The expanded RFS (referred to as RFS2) required the annual use of 9 billion gallons of biofuels in 2008 and expanded the mandate to 36 billion gallons annually in 2022, of which no more than 15 billion gallons can be ethanol from corn starch, and no less than 16 billion must be from cellulosic biofuels. In addition, EISA carved out specific requirements for “other advanced biofuels” and biomass-based biodiesel.
The Environmental Protection Agency (EPA) is responsible for establishing and implementing regulations to ensure that the nation’s transportation fuel supply contains the mandated biofuels volumes. EPA’s initial regulations for administering RFS1 (issued in April 2007) established detailed compliance standards for fuel suppliers, a tracking system based on renewable identification numbers (RINs) with credit verification and trading, special treatment of small refineries, and general waiver provisions. EPA rules for administering RFS2 (issued in February 2010) built upon the earlier RFS1 regulations; however, there are four major distinctions. First, mandated volumes are greatly expanded and the time frame over which the volumes ramp up is extended through at least 2022. Second, the total renewable fuel requirement is divided into four separate, but nested categories—total renewable fuels, advanced biofuels, biomass-based diesel, and cellulosic ethanol—each with its own volume requirement. Third, biofuels qualifying under each category must achieve certain minimum thresholds of lifecycle green house gas (GHG) emission reductions, with certain exceptions applicable to existing facilities. Fourth, all renewable fuel must be made from feedstocks that meet a new definition of renewable biomass, including certain land use restrictions.
In the long term, the expanded RFS is likely to play a dominant role in the development of the U.S. biofuels sector, but with considerable uncertainty regarding potential spillover effects in other markets and on other important policy goals. Emerging resource constraints related to the rapid expansion of U.S. corn ethanol production have provoked questions about its long-run sustainability and the possibility of unintended consequences in other markets as well as on the environment. Questions also exist about the ability of the U.S. biofuels industry to meet the expanding mandate for biofuels from non-corn sources such as cellulosic biomass materials, whose production capacity has been slow to develop, or biomass-based biodiesel, which remains expensive to produce owing to the relatively high prices of its feedstocks. Finally, considerable uncertainty remains regarding the development of the infrastructure capacity (e.g., trucks, pipelines, pumps, etc.) needed to deliver the expanding biofuels mandate to consumers.
Date of Report: October 14, 2010
Number of Pages: 33
Order Number: R40155
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Claudia Copeland
Specialist in Resources and Environmental Policy
Although much progress has been made in achieving the ambitious goals that Congress established more than 35 years ago in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters, long-standing problems persist, and new problems have emerged. Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from factories and sewage treatment plants.
There is little agreement among stakeholders about what solutions are needed and whether new legislation is required to address the nation’s remaining water pollution problems. For some time, efforts to comprehensively amend the CWA have stalled as interests have debated whether and exactly how to change the law. Congress has instead focused legislative attention on enacting narrow bills to extend or modify selected CWA programs, but not any comprehensive proposals.
For several years, the most prominent legislative water quality issue has concerned financial assistance for municipal wastewater treatment projects. House and Senate committees have approved bills on several occasions, but, for various reasons, no legislation has been enacted. At issue is how the federal government will assist states and cities in meeting needs to rebuild, repair, and upgrade wastewater treatment plants, especially in light of capital costs that are projected to be as much as $390 billion. In the 111th Congress, interest in increased investment in public works infrastructure—including wastewater—in order to stimulate the faltering U.S. economy has brought greater attention to water infrastructure issues. Acting quickly, in early February, Congress passed and the President signed the American Recovery and Reinvestment Act (P.L. 111-5). Among its provisions, the legislation appropriates $4.0 billion in additional CWA assistance for wastewater projects. In addition, in March 2009, the House passed legislation to reauthorize the CWA’s State Revolving Fund (SRF) program to finance wastewater infrastructure and several related provisions of the act (H.R. 1262). A companion bill was approved by the Senate Environment and Public Works Committee in May 2009 (S. 1005).
Also of interest are programs that regulate activities in wetlands, especially CWA Section 404, which has been criticized by landowners for intruding on private land-use decisions and imposing excessive economic burdens. Environmentalists view this regulatory program as essential for maintaining the health of wetland ecosystems, and they are concerned about court rulings that narrowed regulatory protection of wetlands and about related administrative actions. Many stakeholders desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are appropriate. In the 110th Congress, committees held hearings on legislation intended to provide that clarification, but no further action occurred. In the 111th Congress, the Senate Environment and Public Works Committee has approved a bill that seeks to clarify but not expand the CWA’s geographic scope (the Clean Water Restoration Act, S. 787). A companion bill has been introduced in the House (America’s Commitment to Clean Water Act, H.R. 5088).
Other topics discussed in this report that also could be of interest in the 111th Congress include efforts to restore the impaired waters of Chesapeake Bay, and several issues related to the applicability of CWA permit requirements to a number of varied activities.
Date of Report: October 13, 2010
Number of Pages: 33
Order Number: R40098
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Claudia Copeland
Specialist in Resources and Environmental Policy
This report provides background on the emerging conflict over interpretation and implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA). For the more than 30 years since they were enacted, there had been little apparent conflict between them. But their relationship has recently been challenged in several arenas, including the federal courts and regulatory proceedings of the Environmental Protection Agency (EPA). In this report, a brief discussion of the two laws is followed by a review of the major litigation of interest. EPA’s efforts to clarify its policy in this area are discussed, including a regulation issued in 2006 that was subsequently vacated by a federal court, as well as possible options for EPA and Congress to address the issues further.
FIFRA governs the labeling, distribution, sale, and use of pesticides, including insecticides and herbicides. Its objective is to protect human health and the environment from unreasonable adverse effects of pesticides. It establishes a nationally uniform labeling system requiring the registration of all pesticides sold in the United States, and requiring users to comply with the national label. The CWA creates a comprehensive regulatory scheme to control the discharge of pollutants into the nation’s waters; the discharge of pollutants without a permit violates the act.
Several federal court cases testing the relationship between FIFRA and the CWA have drawn attention since 2001. In two cases concerning pesticide applications by agriculture and natural resources managers, the U.S. Ninth Circuit Court of Appeals held that CWA permits are required for at least some discharges of FIFRA-regulated pesticides over, into, or near U.S. waters. It held in a third case that no permit was required for the specific pesticide in question. Most recently, the U.S. Second Circuit Court of Appeals ruled in March that a CWA discharge permit for mosquito control activities is not required before April 2011, when EPA is expected to issue a CWA general permit covering such activities.
Several of the rulings alarmed a range of stakeholders who fear that requiring CWA permits for pesticide application activities would present significant costs, operational difficulties, and delays. Pressed to clarify its long-standing principle that CWA permits are not required for using FIFRA-approved products, EPA in 2006 issued a rule to formalize that principle in regulations. Environmental activists strongly opposed EPA’s actions, arguing that FIFRA does not protect water quality from harmful pollutant discharges, as the CWA is intended to do. Other stakeholders, such as pesticide applicators, endorsed the rule, although some would like to see its application broadened to include pesticide drift. The EPA rule was challenged, and in January 2009 a federal court vacated the regulation. Several industry groups petitioned for a rehearing by the full Sixth Circuit Court of Appeals, while the federal government asked the court to stay the order vacating the exemption for two years (until April 2011), to provide time for working with states to develop a general permit for pesticide applications covered by the decision. The court denied the request for rehearing and granted the government’s request for a two-year delay. EPA proposed a draft general permit in June 2010. The Supreme Court declined to review the case.
Some believe that the controversy will only be resolved by congressional action to clarify the intersecting scope of the Clean Water Act and FIFRA. Legislation intended to nullify the 2009 federal court ruling has been introduced in the 111th Congress (H.R. 6087/S. 3735 and a third bill, H.R. 6273).
Date of Report: October 13, 2010
Number of Pages: 18
Order Number: RL32884
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