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Friday, May 28, 2010

Leaking Underground Storage Tanks (USTs): Prevention and Cleanup

Mary Tiemann
Specialist in Environmental Policy

To address a nationwide water pollution problem caused by leaking underground storage tanks (USTs), Congress authorized a leak prevention, detection, and cleanup program in 1984, under Subtitle I of the Solid Waste Disposal Act. In 1986, Congress established the Leaking Underground Storage Tank (LUST) Trust Fund to provide a source of funds to support the Environmental Protection Agency (EPA) and states in remediating leaks from petroleum USTs. The LUST Trust Fund is funded primarily through a 0.1 cent-per-gallon motor fuels tax. Historically, EPA and states primarily have used LUST fund appropriations to oversee LUST cleanup activities by responsible parties and to clean up sites where owners fail to do so. 

Since the program began, the frequency and severity of releases from USTs have declined markedly. Through FY2009, cleanup had been initiated or completed at nearly 80% of the 488,000 confirmed release sites, while a backlog of some 100,000 contaminated sites remained. 

Despite much progress in the program, challenges have remained. A key issue has been that state resources have not met the demands of administering the UST leak prevention program. States have long sought larger appropriations from the trust fund to support the LUST cleanup program, and some also sought flexibility to use fund resources to administer and enforce the UST leak prevention program. Another issue has concerned the detection of methyl tertiary butyl ether (MTBE) in groundwater at many LUST sites and in some drinking water supplies. This gas additive was used widely to meet Clean Air Act requirements to reduce auto emissions. However, MTBE is very water-soluble, and, once released, it is more likely to reach water supplies and often is more costly to remediate than conventional gasoline leaks. 

In the Energy Policy Act of 2005 (EPAct; P.L. 109-58), the 109th Congress expanded the leak prevention provisions in the UST program, imposed new program responsibilities on EPA and states, and authorized use of the LUST Trust Fund for prevention as well as cleanup purposes. The law also repealed the Clean Air Act oxygenated fuel requirement that had prompted the extensive use of MTBE. In the Energy Independence and Security Act of 2007 (EISA; P.L. 110- 140), the 110th Congress amended the Clean Air Act to authorize EPA to regulate fuels and fuel additives for the purpose of protecting water quality, as well as air quality. 

EISA also increased the renewable fuel standard (RFS), and an emerging issue concerns the compatibility of ethanol and biofuels with storage tank infrastructure. Ethanol is more corrosive than gasoline, and EPA estimates that half the tanks in the ground have not been tested for compatibility with ethanol blends greater than 10%. The RFS is likely to push blending beyond 10% in a few years. The concern is that a new wave of leaks could occur as the amount of ethanol in gasoline increases to meet the RFS. S. 1666 would direct EPA to allow the use of mid-level ethanol blends only after infrastructure compatibility and consumer safety issues are addressed. 

Congress has increased program funding since the enactment of EPAct. The American Recovery and Reinvestment Act (ARRA; P.L. 111-5) appropriated $200 million from the trust fund for the LUST cleanup program, and Congress provided another $112.6 million from the fund for cleanup and leak prevention and detection activities in regular FY2009 appropriations. For FY2010, in P.L. 111-88, Congress provided $113.1 million from the fund, including $78.7 million for LUST cleanup activities, and $34.4 million for UST leak prevention, detection, and other program responsibilities added by the EPAct. The Administration has requested similar amounts for FY2011. This report reviews UST and LUST programs and related issues and developments.


Date of Report: May 18, 2010
Number of Pages: 11
Order Number: RS21201
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EPA Regulation of Greenhouse Gases: Congressional Responses and Options

James E. McCarthy
Specialist in Environmental Policy

Larry Parker
Specialist in Energy and Environmental Policy

The Environmental Protection Agency's promulgation of an "endangerment finding" for greenhouse gas (GHG) emissions in December 2009, and its subsequent promulgation of GHG emission standards for new motor vehicles on April 1, 2010, have raised concerns among some in Congress that the agency will now proceed to control GHG emissions from stationary sources, including power plants, manufacturing facilities, and others. Stationary sources account for 69% of U.S. emissions of greenhouse gases. If the United States is to reduce its total GHG emissions, as President Obama has committed to do, it will be necessary to address these sources. 

EPA's regulations limiting GHG emissions from new cars and light trucks will trigger at least two other Clean Air Act (CAA) provisions affecting stationary sources of air pollution. First, effective January 2, 2011, new or modified major stationary sources will have to undergo New Source Review (NSR) with respect to their GHGs in addition to any other pollutants subject to regulation under the CAA that are emitted by the source. This review will require affected sources to install Best Available Control Technology (BACT) to address their GHG emissions. Second, all major sources of GHGs (existing and new) will have to obtain permits under Title V of the CAA (or have existing permits modified to include their GHG requirements). Beyond these permitting requirements, because stationary sources, particularly coal-fired power plants, are the largest sources of greenhouse gas emissions, EPA is likely to find itself compelled to issue endangerment findings under other parts of the act, resulting in New Source Performance Standards for stationary sources or emission standards under other sections of the act. 

EPA shares congressional concerns about the potentially broad scope of these regulations, primarily because a literal reading of the act might require as many as 6 million stationary sources to obtain permits. Thus, on May 13, 2010, the agency finalized a "Tailoring Rule" so that it can focus its resources on the largest emitters while deciding over a six-year period what to do about smaller sources. The agency is still in the process of developing recommendations on what the BACT requirements will be and expects to issue guidance on that in the fall of 2010. 

Many in Congress have suggested that EPA should delay taking action on these sources or should be prevented from doing so. Legislation has been introduced in both the House and Senate to achieve such results: four resolutions of disapproval under the Congressional Review Act (S.J.Res. 26, H.J.Res. 66, H.J.Res. 76, H.J.Res. 77) are aimed at EPA's determination under Section 202(a) of the Clean Air Act that GHGs cause or contribute to air pollution that endangers public health and welfare; five other bills would either require EPA to reevaluate its endangerment finding (H.Res. 974), amend the Clean Air Act to provide that greenhouse gases are not subject to the act (H.R. 4396), limit EPA's GHG authority to motor vehicle emissions (S. 1622), or suspend EPA actions regulating stationary source emissions of GHGs for two years (S. 3072, H.R. 4753). 

This report discusses elements of this controversy, providing background on stationary sources of greenhouse gas pollution and identifying options Congress has at its disposal should it decide to address the issue. The report discusses four sets of options: (1) resolutions of disapproval under the Congressional Review Act; (2) freestanding legislation delaying or prohibiting EPA action; (3) the use of appropriations bills as a vehicle to restrain EPA activity; and (4) amendments to the Clean Air Act, including legislation such as H.R. 2454 or S. 1733, which would establish a new GHG control regime.



Date of Report: May 18, 2010
Number of Pages: 17
Order Number: R41212
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Market-Based Greenhouse Gas Control: Selected Proposals in the 111th Congress

Larry Parker
Specialist in Energy and Environmental Policy

Brent D. Yacobucci
Specialist in Energy and Environmental Policy

Jonathan L. Ramseur
Specialist in Environmental Policy

As of the date of this report, Members in the 111th Congress have introduced nine stand-alone proposals that would control greenhouse gas (GHG) emissions. The proposals offered to date would employ market-based approaches—either a cap-and-trade or carbon tax system, or some combination thereof—to reduce GHG emissions. The legislative proposals are varied in their overall approaches in controlling GHG emissions. Some control emissions by setting a quantity (or cap); others control emissions by setting a price (or tax/fee). In addition, the proposals differ in their inclusion of particular design elements, such as whether or not to allow offsets (emission reduction opportunities from economic sectors not directly addressed by the primary approach). 

H.R. 2454, the American Clean Energy and Security Act of 2009 (Waxman/Markey), and S. 1733, the Clean Energy Jobs and American Power Act (Kerry/Boxer), have been the primary energy and climate change legislative vehicles in the 111th Congress. On June 26, 2009, the House passed H.R. 2454. On November 5, the committee approved Senator Boxer's "Manager's Amendment" as a substitute, and ordered S. 1733 reported. In addition to establishing a cap-andtrade system to regulate GHG emissions, both H.R. 2454 and S. 1733 would address energy efficiency, renewable energy, and other energy topics. Other proposals—H.R. 1862 (Van Hollen) and H.R. 1666 (Doggett)—would control emissions by limiting quantity, but would differ in their structure and implementation. 

Three of the proposals—H.R. 594 (Stark), H.R. 1337 (Larson), and H.R. 2380 (Inglis)—would use a carbon tax approach to address carbon dioxide (CO2) emissions from fossil fuel combustion. 

Other proposals do not fit precisely into either a price or quantity control category. H.R. 1683 (McDermott) would establish a program that may be described as a dynamic carbon tax: its tax rate would be linked with annual emission allocations (or caps). S. 2877 (Cantwell) would establish a CO2 emission control program on fossil fuel producers and importers. Although the bill would limit the number of carbon shares auctioned each year, the auctions would include a price safety valve, allowing for the purchase of additional shares. To counter the emissions from these additional shares (above the cap), the price safety-valve revenues would be used to support mitigation efforts outside of the emission control program. 

On May 12, 2010, Senators Kerry and Lieberman released a draft of new climate change legislation. A comprehensive energy and climate change policy proposal, the draft would set GHG reduction goals similar to those of H.R. 2454. The proposal would employ a market-based cap-and-trade scheme for electric generators and industry with a separate set-price mechanism to allocate allowances to cover transportation fuels. 

A key element in GHG emission reduction bills is how, to whom, and for what purpose the value of emission allowances or carbon tax revenue would be distributed. The distribution strategy is a critical policy decision, because it would affect (1) the overall cost of the program and (2) how program costs are distributed throughout the economy. In the early years of the program, H.R. 2454 and S. 1733 would distribute allowances at no cost to both covered and non-covered entities to support various policy objectives. In addition, an increasing percentage of the allowances would be sold through auction. As with the distribution of no-cost allowances, auction revenues would be used to further various policy objectives. 
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Date of Report: May 18, 2010
Number of Pages: 29
Order Number: R40556
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Clean Air Issues in the 111th Congress

James E. McCarthy
Specialist in Environmental Policy

EPA regulatory actions on greenhouse gas (GHG) emissions using existing Clean Air Act authority have been the main focus of congressional interest in clean air issues in recent months. Although the agency and the Obama Administration have consistently said that they would prefer that Congress pass legislation to address climate change, EPA has begun to develop regulations using its existing authority. On December 15, 2009, the agency finalized an "endangerment finding" under Section 202 of the Clean Air Act, which permits it (in fact, requires it) to regulate pollutants for their effect as greenhouse gases for the first time. Relying on this finding, EPA finalized GHG emission standards for cars and light trucks, April 1. The implementation of these standards will, in turn, trigger permitting requirements and the imposition of Best Available Control Technology for new major stationary sources of GHGs in January 2011. 

It is the triggering of standards for stationary sources (power plants, manufacturing facilities, and others) that has raised the most concern in Congress: legislation has been introduced in both the House and Senate aimed at preventing EPA from implementing these requirements. The legislation has taken several forms, including the introduction of resolutions of disapproval for the endangerment finding itself under the Congressional Review Act, and stand-alone legislation that would forestall specific EPA regulatory actions. Meanwhile, EPA has itself proposed regulations and guidance that will limit the applicability of Clean Air Act GHG requirements, delaying the applicability of requirements for all stationary sources until 2011 through guidance published April 2, 2010, and focusing its regulatory efforts on the largest emitters while granting smaller sources at least a six-year reprieve through what it calls the Greenhouse Gas "Tailoring Rule." 

The endangerment finding and EPA's other actions, which were triggered by a 2007 Supreme Court decision, come as Congress continues to struggle with climate change legislation. On June 26, 2009, the House narrowly passed H.R. 2454, a 1,428-page bill addressing a number of interrelated energy and climate change issues. The bill would establish a cap-and-trade program for greenhouse gas (GHG) emissions, beginning in 2012. In the Senate, both the Environment and Public Works Committee and the Energy and Natural Resources Committee have reported bills (S. 1733 and S. 1462), but action subsequently bogged down, while a trio of Senators began negotiating a climate bill from scratch. As the clock winds down on the current Congress, it becomes less likely that climate legislation will be enacted, and more likely that EPA's actions will be the principal U.S. response to climate issues for now. 

Besides addressing climate change, EPA has taken action on a number of conventional air pollutants, generally in response to the courts. Several Bush Administration regulatory decisions were vacated or remanded to the agency: among them, the Clean Air Interstate Rule (CAIR)—a rule designed to control the long-range transport of sulfur dioxide and nitrogen oxides from power plants, by establishing a cap-and-trade program—and the Clean Air Mercury Rule, which would have established a cap-and-trade program for power plant mercury emissions. EPA will address these court decisions through new regulations—the agency expects to propose a replacement for CAIR in June. Congress could address these issues through legislation, an approach that might reduce the likelihood of further court challenges. The agency is also in the midst of reviewing ambient air quality standards for the six most widespread air pollutants. These standards serve as EPA's definition of clean air, and drive a wide range of regulatory controls. This report provides an overview of clean air legislative and regulatory issues. More detailed information on most of the issues can be found in other CRS reports, which are referenced throughout this report.


Date of Report: May 18, 2010
Number of Pages: 31
Order Number: R40145
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Sunday, May 23, 2010

Global Environment Facility (GEF):An Overview

Richard K. Lattanzio
Analyst in Environmental Policy

The Global Environment Facility (GEF) is an independent and international financial mechanism (i.e., a grant and lending institution) that promotes cooperation and fosters actions to protect the global environment. Established in 1991, it unites 180 member governments and partners with international institutions, nongovernmental organizations, and the private sector to assist developing countries with environmental projects related to six areas: biodiversity, climate change, international waters, the ozone layer, land degradation, and persistent organic pollutants. GEF receives funding from multiple donor countries—including the United States—and provides grants and concessional loans to cover the additional or "incremental" costs associated with transforming a project with national benefits into one with global environmental benefits. In this way, GEF funding is structured to "supplement" base project funding and provide for the environmental components in national development agendas. GEF partners with several international agencies, including the International Bank for Reconstruction and Development, the United Nations Development Program, and the United Nations Environment Program, among others. GEF is the primary fund administrator for four Rio (Earth Summit) Conventions, including the Convention on Biological Diversity (CBD), the United Nations Framework Convention on Climate Change (UNFCCC), the Stockholm Convention on Persistent Organic Pollutants (POPs), and the United Nations Convention to Combat Desertification (UNCCD). GEF also establishes operational guidance for international waters and ozone activities, the latter consistent with the Montreal Protocol on Substances that Deplete the Ozone Layer and its amendments. Since its inception, GEF has allocated $8.8 billion—supplemented by more than $38.7 billion in co-financing—for more than 2,400 projects in more than 165 countries. 

GEF is one mechanism in a larger network of international programs designed to address environmental issues. Each year, billions of dollars in environmental aid flow from developed country governments—including the United States—to developing ones. While the efficiency and the effectiveness of these programs are of concern to donor country governments, a full analysis of the purposes, intents, results, and consequences behind these financial flows has yet to be conducted. International relations, comparative politics, and developmental economics can often collide with environmental agendas. Critics contend that the existing system has had limited impact in addressing major environmental concerns—specifically climate change and tropical deforestation—and has been unsuccessful in delivering global transformational change. A desire to achieve more immediate impacts has led to a restructuring of the Multilateral Development Banks' role in environmental finance and the introduction of many new bilateral and multilateral funding initiatives. The effectiveness of GEF depends on how the fund addresses its programmatic issues, reacts to recent developments in the financial landscape, and responds to emerging opportunities. The future of GEF remains in the hands of the donor countries that can choose to broaden the mandate and strengthen its institutional arrangements or to reduce and replace it by other bilateral or multilateral funding mechanisms. 
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Date of Report: May 17, 2010
Number of Pages: 26
Order Number: R41165
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Methane Capture: Options for Greenhouse Gas Emission Reduction

Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

Jonathan L. Ramseur
Specialist in Environmental Policy

James E. McCarthy
Specialist in Environmental Policy

Peter Folger
Specialist in Energy and Natural Resources Policy

Donald J. Marples
Specialist in Public Finance

Research on climate change has identified a wide array of sources that emit greenhouse gases (GHGs). Among the six gases that have generally been the primary focus of concern, methane is the second-most abundant, accounting for approximately 8% of total U.S. GHG emissions in 2008. Methane is emitted from a number of sources. The most significant are agriculture (both animal digestive systems and manure management); landfills; oil and gas production, refining, and distribution; and coal mining. 

As Congress considers legislation to address climate change by capping or reducing GHG emissions, methane capture projects offer an array of possible reduction opportunities, many of which utilize proven technologies. Methane capture projects (e.g., landfill gas projects, anaerobic digestion systems) restrict the release of methane into the atmosphere. The methane captured can be used for energy or flared. Methane capture challenges differ depending on the source. Most methane capture technologies face obstacles to implementation, including marginal economics in many cases, restricted pipeline access, and various legal issues. 

Some of the leading methane capture options under discussion include market-based emission control programs, carbon offsets, emission performance standards, and maintaining existing programs and incentives. At present, methane capture technologies are supported by tax incentives in some cases, by research and demonstration programs in others, by regulation in the case of the largest landfills, and by voluntary programs. Congress could decide to address methane capture in a number of different ways, including (1) determining the role of methane capture in climate change legislation; (2) determining whether methane capture should be addressed on an industry-by-industry basis; and (3) determining if current methane capture initiatives will be further advanced with legislative action regardless of other facets of the climate change policy debate. What role methane capture would play in prospective legislation to control GHGs—whether methane sources would be included among those covered by a cap-and-trade system, for example, whether they would be a source of emission offsets from sources not covered by cap-and-trade, or whether their emissions might be subject to regulation—is among the issues that Congress faces. 

A few government programs have supported the capture of methane to mitigate climate change. The Methane-to-Markets Partnership, administered by the Environmental Protection Agency (EPA), is an international initiative to reduce global methane emissions. EPA also oversees a variety of voluntary programs related to the Methane-to-Markets initiative (e.g., Coalbed Methane Outreach Program, Natural Gas STAR Program, Landfill Methane Outreach Program, AgSTAR Program). 

This report discusses legislative alternatives for addressing methane capture, sources of methane, opportunities and challenges for methane capture, and current federal programs that support methane recovery. 
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Date of Report: May 10, 2010
Number of Pages: 24
Order Number: R40813
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Monday, May 17, 2010

Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile Sources

James E. McCarthy
Specialist in Environmental Policy

As Congress and the Administration consider new legislation to reduce the greenhouse gas (GHG) emissions that contribute to climate change, the Environmental Protection Agency has simultaneously begun to exercise its existing authority under the Clean Air Act to set standards for GHG emissions. The Administration has made clear that its preference would be for Congress to address the climate issue through new legislation. Nevertheless, it is moving forward on several fronts to define how the Clean Air Act will be used and to promulgate regulations. 

On April 1, 2010, EPA used existing authority under Section 202 of the act to set the first national GHG emission standards: the standards will control emissions from new cars and light trucks beginning in model year 2012. The standards will require cars, SUVs, minivans, and other light trucks to meet combined emissions levels that the agency estimates will average 250 grams/mile of carbon dioxide (CO2) in model year 2016, about a 30% reduction in emissions compared to current levels. The standards will be gradually phased in, with the first reduction targets set for model year 2012. As part of an agreement brokered by the White House, EPA's standards were issued jointly with fuel economy (CAFE) standards developed by the National Highway Traffic Safety Administration, and the state of California agreed to harmonize state-level GHG emission standards, so that the auto industry would have a single national set of standards to meet. 

The key to using the Clean Air Act's authority to control greenhouse gases was for the EPA Administrator to find that GHG emissions are air pollutants that endanger public health or welfare. Administrator Jackson promulgated such an endangerment finding in December 2009. With the endangerment finding finalized, the agency can proceed to regulate emissions from motor vehicles of all kinds. Medium- and heavy-duty trucks are next in line: EPA expects to propose GHG emission standards for them in the summer of 2010. 

EPA has received 10 petitions asking that it make endangerment findings and proceed to regulate emissions of greenhouse gases. Nine of the 10 petitions address mobile sources: besides motor vehicles, the petitions cover aircraft, ships, nonroad vehicles and engines, and fuels, all of which are covered by Title II of the Clean Air Act. In addition to describing the motor vehicle regulations, this report discusses the range of EPA's authority under Title II and provides information regarding other mobile sources that might be regulated under this authority. 

Regulation of GHGs from mobile sources will lead the agency to establish controls for stationary sources, such as electric power plants, as well. Stationary source options, the authority for which comes from different parts of the Clean Air Act, are addressed in CRS Report R40585,
Climate Change: Potential Regulation of Stationary Greenhouse Gas Sources Under the Clean Air Act and CRS Report R41212, EPA Regulation of Greenhouse Gases: Congressional Responses and Options.


Date of Report: May 4, 2010
Number of Pages: 20
Order Number: R40506
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Clean Air Issues in the 111th Congress

James E. McCarthy
Specialist in Environmental Policy

EPA regulatory actions on greenhouse gas (GHG) emissions using existing Clean Air Act authority have been the main focus of congressional interest in clean air issues in recent months. Although the agency and the Obama Administration have consistently said that they would prefer that Congress pass legislation to address climate change, EPA has begun to develop regulations using its existing authority. On December 15, 2009, the agency finalized an "endangerment finding" under Section 202 of the Clean Air Act, which permits it (in fact, requires it) to regulate pollutants for their effect as greenhouse gases for the first time. Relying on this finding, EPA promulgated GHG emission standards for cars and light trucks, April 1. The implementation of these standards will, in turn, trigger permitting requirements and the imposition of Best Available Control Technology for new major stationary sources of GHGs in January 2011. 

It is the triggering of standards for stationary sources (power plants, manufacturing facilities, and others) that has raised the most concern in Congress: legislation has been introduced in both the House and Senate aimed at preventing EPA from implementing these requirements. The legislation has taken several forms, including the introduction of resolutions of disapproval for the endangerment finding itself under the Congressional Review Act, and stand-alone legislation that would forestall specific EPA regulatory actions. Meanwhile, EPA has itself proposed regulations and guidance that will limit the applicability of Clean Air Act GHG requirements, delaying the applicability of requirements for all stationary sources until 2011, focusing its regulatory efforts on the largest emitters, and granting smaller sources at least a six-year reprieve. 

The endangerment finding and EPA's other actions, which were triggered by a 2007 Supreme Court decision, come as Congress continues to struggle with climate change legislation. On June 26, 2009, the House narrowly passed H.R. 2454, a 1,428-page bill addressing a number of interrelated energy and climate change issues. The bill would establish a cap-and-trade program for greenhouse gas (GHG) emissions, beginning in 2012. In the Senate, both the Environment and Public Works Committee and the Energy and Natural Resources Committee have reported bills (S. 1733 and S. 1462), but action subsequently bogged down, while a trio of Senators began negotiating a climate bill from scratch. As the clock winds down on the current Congress, it becomes less likely that climate legislation will be enacted, and more likely that EPA's actions will be the principal U.S. response to climate issues for now. 

Besides addressing climate change, EPA has taken action on a number of conventional air pollutants, generally in response to the courts. Several Bush Administration regulatory decisions were vacated or remanded to the agency: among them, the Clean Air Interstate Rule (CAIR)—a rule designed to control the long-range transport of sulfur dioxide and nitrogen oxides from power plants, by establishing a cap-and-trade program—and the Clean Air Mercury Rule, which would have established a cap-and-trade program for power plant mercury emissions. EPA will address these court decisions through new regulations—the agency expects to propose a replacement for CAIR in May or June. Congress could also address these issues through legislation, an approach that might reduce the likelihood of further court challenges. The agency is also in the midst of reviewing ambient air quality standards for the six most widespread air pollutants. These standards serve as EPA's definition of clean air, and drive a wide range of regulatory controls. 

This report provides an overview of clean air legislative and regulatory issues. More detailed information on most of the issues can be found in other CRS reports, which are referenced throughout this report.


Date of Report: May 5, 2010
Number of Pages: 31
Order Number: R40145
Price: $29.95

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Water Quality Issues in the 111th Congress: Oversight and Implementation

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 issues discussed in this report that also could be of interest in the 111th Congress include implementation of current programs to manage nonpoint sources of pollution, as these are major contributors to water quality impairments across the country; and implementation of EPA rules governing discharges of wastes from large animal feeding operations


Date of Report: May 6, 2010
Number of Pages: 31
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Friday, May 14, 2010

Potential Stafford Act Declarations for the Gulf Coast Oil Spill: Issues for Congress

Francis X. McCarthy
Analyst in Emergency Management Policy

The Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288, presents several options, and could provide a number of programs, to address the Gulf Coast oil spill. That spill is currently being addressed by a law fashioned for that purpose, the Oil Pollution Act of 1990, P.L. 101-380. 

An emergency declaration under the Stafford Act would appear a potential approach to the current situation since it is intended to lessen the impact of an imminent disaster. A major disaster declaration would open up more Stafford Act programs that might be especially appropriate for the needs generated by the spill. FEMA assistance can be rapid and flexible, but it also would need to be carefully delineated to avoid duplication of benefits and general confusion when working in the milieu of P.L. 101-380. Under that law, which provides both authorities and a fund for compensation, the incident is currently being addressed and the federal response coordinated. 

During the previous large spill, the Exxon Valdez in 1989, the President turned down the Governor of Alaska's two requests for an emergency declaration. The rationale for the turndowns was that a declaration by the President would hinder the government's litigation against Exxon that promised substantial compensation for the incident. 

Using a Stafford Act declaration, either an emergency or a major disaster declaration, for Gulf Coast states that are now approaching the fifth anniversary of the Hurricane Katrina landfall would present not only a reminder of difficult, lingering issues from that disaster in 2005 but also an opportunity for a second chance at long-term recovery assistance. Managing public expectations is difficult even in the smallest disaster event. Working with a region that is aware of the potential aid under Stafford and mistrustful of its delivery is a hard challenge. Since FEMA would be attempting to work in coordination with another set of authorities being carried out by other agencies and departments, the complexity would only increase. 

Although FEMA has new leadership, it has compiled a mixed record over the last few years, from an accelerated response to Hurricanes Gustav and Ike to an arbitration process on large projects from the Katrina recovery, that has called into question the judgment and accuracy of its processes. Also, any additional work would add to the imbalance in the largely depleted Disaster Relief Fund (DRF). The DRF is currently awaiting congressional action on the President's request for $5.1 billion in supplemental funds, which was made months before the oil spill occurred. 

Disasters can be complex events, raising thorny issues that resist the simplest solutions. When several federal authorities are at work, those issues could multiply as questions of compensation for individuals and communities are considered. It could be argued that the absence of increased federal involvement could serve to simplify the response. At least one area, long-term recovery, is not directly addressed in P.L. 101-380. Some might argue it is also an area that the federal government did not address in the aftermath of Katrina. In response to congressional direction, FEMA has published a draft National Disaster Recovery Framework (NDRF). Perhaps amidst the current complications of overlapping authorities and funds, implementing that framework could provide a viable and limited option for the use of Stafford Act authorities.


Date of Report: May 13, 2010
Number of Pages: 14
Order Number: R41234
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Tuesday, May 11, 2010

Warranted but Precluded: What That Means Under the Endangered Species Act (ESA)

Kristina Alexander
Legislative Attorney

On March 5, 2010, the U.S. Fish and Wildlife Service (FWS) announced that the sage grouse (sometimes called the greater sage grouse) was facing risks to its population such that a listing under the Endangered Species Act (ESA) was warranted. However, in that same determination, FWS found that the sage grouse listing was precluded because listing other species was a priority. The agency made the same warranted but precluded determination regarding a distinct population segment of the sage grouse, the Mono Basin sage grouse (sometimes referred to as the Bi-State population). 

This report analyzes the process behind a warranted but precluded determination under the ESA. It also discusses what impact a warranted but precluded determination has on federal actions that may affect a species, with a particular analysis of impacts on the sage grouse. In the case of the sage grouse, whose habitat covers so much of the western United States, agency decisions, such as oil and gas leasing, will have to take into account this listing decision. Both the Bureau of Land Management (BLM) and the Forest Service have existing policies addressing how land management planning must consider species for which this determination was made.


Date of Report: April 30, 2010
Number of Pages: 11
Order Number: R41100
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Monday, May 10, 2010

Legislative Approaches to Defining “Waters of the United States”

Claudia Copeland
Specialist in Resources and Environmental Policy

In the 111th Congress, legislation has been introduced that seeks to clarify the scope of the Clean Water Act (CWA) in the wake of Supreme Court decisions in 2001 and 2006 that interpreted the law's jurisdiction more narrowly than prior case law. The Court's narrow interpretation involved jurisdiction over some geographically isolated wetlands, intermittent streams, and other waters. The two cases are Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) and Rapanos v. United States

Bills to nullify the Court's rulings have been introduced repeatedly since the 107th Congress, but none had advanced until the 111th Congress. In June 2009, a Senate committee approved S. 787, the Clean Water Restoration Act. Companion legislation in the House, H.R. 5088 (America's Commitment to Clean Water Act), was introduced in April 2010. 

Under current law, the key CWA phrase which sets the act's reach is the phrase "navigable waters," defined to mean "the waters of the United States, including the territorial seas." Proponents of the current legislation contend that the Court misread Congress' intent when it enacted the CWA, and consequently the Court's ruling unduly restricted the scope of the act's water quality protections. Both S. 787 and H.R. 5088 would replace the phrase "navigable waters" in the CWA with "waters of the United States" and would install a definition of "waters of the United States," not found in the law now. The bills differ in how they would define the phrase. The Senate committee bill includes a definition drawn from one paragraph of existing federal regulatory text, while H.R. 5088 includes a longer definition based on the same regulatory language, but with some modifications. Both bills also include provisions affirming the constitutional basis for the act's jurisdiction. These provisions address the concern that the Court's rulings, while decided on statutory grounds, raised related questions about the outer limits of Congress's power to regulate waters with little or no connection to traditional navigable waters under the Commerce Clause of the Constitution. 

Proponents of the current legislation, including many states and environmental advocacy groups, contend that the Court's ruling in these cases, and subsequent regulatory guidance by federal agencies, have unsettled several decades' worth of case law, misreading or ignoring congressional intent, and thus reinterpreting and narrowing the jurisdictional scope of the act. Supporters say that the intention is to return to the CWA regulatory jurisdiction that prevailed before the Court's rulings. On the other hand, critics, including many industry groups and development and home builder organizations, contend that the legislation would greatly expand federal regulatory jurisdiction of the CWA beyond interpretations that existed before the two Supreme Court rulings, not simply reaffirm congressional intent. They are concerned that the legislation has the potential to be interpreted far more broadly than what was previously understood to be jurisdictional—thus causing more uncertainty, rather than clarifying the issue. 

Between proponents and critics, there is wide disagreement whether the new statutory definition proposed in either bill, coupled with other changes, will achieve the objective of clarity and certainty that is broadly desired. In light of the differing views on the issues, future prospects for either bill are uncertain. The legal and policy questions associated with the SWANCC and Rapanos cases—concerning the outer geographic limits of CWA jurisdiction and consequences of restricting that scope—have challenged regulators, landowners and developers, and policymakers for more than 35 years.


Date of Report: April 30, 2010
Number of Pages: 18
Order Number: R41225
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Wednesday, May 5, 2010

Estimating Offset Supply in a Cap-and-Trade Program

Jonathan L. Ramseur
Specialist in Environmental Policy

If allowed as a compliance option in a greenhouse gas (GHG) emission reduction program (e.g., a cap-and-trade system), offsets have the potential to provide considerable cost savings and other benefits. However, offsets have generated considerable controversy, primarily over the concern that illegitimate offsets could undermine the ultimate objective of a cap-and-trade program: emission reduction. 

An offset is a measurable reduction, avoidance, or sequestration of GHG emissions from a source not covered by an emission reduction program. An estimate of the quantity and type of offset projects that might be available as a compliance option would provide for a more informed debate over the design elements of a cap-and-trade program. It is difficult to estimate the supply of offsets that might be available in a cap-and-trade system, because the supply is determined by many variables, including: 

Mitigation potential.
Mitigation potential estimates are the raw data that feed into models estimating offset use in a cap-and-trade program. Recent estimates contain considerable uncertainty. 

Policy choices.
The design of the cap-and-trade system would be critical to offset supply. Particularly relevant design choices include which sources are covered; which types of offset projects are allowed; whether or not offset use is limited; and the degree to which set-aside allowances are allotted to activities that may otherwise qualify as offsets. Policymakers' treatment of international offsets would play a major role. 

Economic factors.
The development and market penetration of low- and/or zero-carbon technologies would likely have substantial effects. These technologies could lower the costs of the cap-and-trade program, making fewer offset projects cost effective. 

Emission allowance price.
The allowance price would determine the supply and type of offsets that would be economically competitive in a cap-and-trade system. As the price increases, more (and different types of) projects would become cost effective. Allowance price estimates are difficult to predict, as they are dependent on numerous variables, including offset treatment. 

Other factors.
Non-market factors, such as social acceptance, may influence offset use. In addition, information dissemination would likely be an issue, because some of the offset opportunities exist at smaller operations, such as family farms. 

Although economic models have generated estimates of offsets that would be developed and used in a cap-and-trade system, the estimates are rife with uncertainty. This report examines the multiple variables that would help shape offset supply.


Date of Report: April 16, 2010
Number of Pages: 14
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Federal Pollution Control Laws: How Are They Enforced?

Robert Esworthy  
Specialist in Environmental Policy

As a result of enforcement actions and settlements for noncompliance with federal pollution control requirements, the U.S. Environmental Protection Agency (EPA) reported that, for FY2009, regulated entities committed to invest an estimated $45.0 billion for judicially mandated controls and cleanup, and for implementing mutually agreed upon (supplemental) environmentally beneficial projects. EPA estimates that these efforts achieved commitments to reduce 580 million pounds of pollutants in the environment, primarily from air and water. EPA also assessed more than $96.0 million in civil and criminal fines and restitution during FY2009. Nevertheless, noncompliance with federal pollution control laws remains a continuing concern. The overall effectiveness of the enforcement organizational framework, the balance between state autonomy and federal oversight, and the adequacy of funding are long-standing congressional concerns. 

This report provides an overview of the statutory framework, key players, infrastructure, resources, tools, and operations associated with enforcement and compliance of the major pollution control laws and regulations administered by EPA. It also outlines the roles of federal (including regional offices) and state regulators, as well as the regulated community. Understanding the many facets of how all federal pollution control laws are enforced, and the responsible parties involved, can be challenging. Enforcement of the considerable body of these laws involves a complex framework and organizational setting. 

The array of enforcement/compliance tools employed to achieve and maintain compliance includes monitoring, investigation, administrative and judicial (civil and criminal) actions and penalties, and compliance assistance and incentive approaches. Most compliance violations are resolved administratively by the states and EPA. EPA concluded 1,916 final administrative penalty orders in FY2009. Civil judicial actions, which may be filed by states or EPA, are the next most frequent enforcement action. EPA may refer civil cases to the Department of Justice (DOJ), referring 277 civil cases in FY2009. The U.S. Attorney General's Office and DOJ's Environmental Crimes Section, or the State Attorneys General, in coordination with EPA criminal investigators and general counsel, may prosecute criminal violations against individuals or entities who knowingly disregard environmental laws or are criminally negligent. 

Federal appropriations for environmental enforcement and compliance activities have remained relatively constant in recent fiscal years. Congress appropriated $596.7 million for EPA's enforcement activities for FY2010, an increase above the $568.9 million enacted for FY2009, and $553.5 million for FY2008. Many contend that overall funding for enforcement activities has not kept pace with inflation or with the increasingly complex federal pollution control requirements.


Date of Report: April 20, 2010
Number of Pages: 47
Order Number: RL34384
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Oil Spills in U.S. Coastal Waters: Background, Governance, and Issues for Congress

Jonathan L. Ramseur
Specialist in Environmental Policy

During the past two decades, while U.S. oil imports and consumption have steadily risen, oil spill incidents and the volume of oil spilled have not followed a similar course. In general, the annual number and volume of oil spills have shown declines—in some cases, dramatic declines. The 1989 Exxon Valdez spill in Alaskan waters played a large role in stimulating actions that contributed to this trend, particularly the decrease in the annual spill volumes. The Exxon Valdez spill highlighted the need for stronger legislation, inflamed public sentiment, and spurred Congress to enact comprehensive oil spill legislation, resulting in the Oil Pollution Act of 1990 (P.L. 101-380). This law expanded and clarified the authority of the federal government and created new oil spill prevention and preparedness requirements. Moreover, the 1990 legislation strengthened existing liability provisions, providing a greater deterrent against spills. After 1990, spill volume from oil tankers, the vessels that carry and have spilled the most oil, decreased significantly. 

Considering that U.S. oil consumption and oil imports have increased in recent decades, the trend of declining spill incidents and volume in past years is noteworthy. However, the risk of a major oil spill remains. Although recent Energy Information Administration (EIA) projections indicate that oil imports are expected to level off in coming years, the United States is expected to continue importing a substantial percentage of the oil it consumes. The threat of oil spills raises the question of whether U.S. officials have the necessary resources at hand to respond to a major spill. There is some concern that the favorable U.S. spill record has resulted in a loss of experienced personnel, capable of responding quickly and effectively to a major oil spill. 

Prior to actions by the 109th and 110th Congresses, the Oil Spill Liability Trust Fund was particularly vulnerable to a large and costly spill: Fund managers had projected the fund would be completely depleted by FY2009. Recent legislative developments have increased the oil spill liability limits and raised the tax rate that feeds into the trust fund. With these changes in effect, the most recent projection indicates that the fund will reach almost $1.5 billion by the end of FY2009 and crest $3.5 billion by FY2016. Although the trust fund is now less vulnerable to a major spill, some degree of exposure still remains, thus raising a central policy debate: How should policymakers allocate the costs associated with a major, accidental oil spill? For example, what share of costs should be borne by the responsible party (e.g., oil vessel owner/operators), the oil industry, and the general treasury? 

No oil spill is entirely benign. Even a relatively minor spill, depending on the timing and location, can cause significant harm to individual organisms and entire populations. Marine mammals, birds, bottom-dwelling and intertidal species, and organisms in early developmental stages—eggs or larvae—are especially vulnerable to a nearby spill. However, the effects of oil spills can vary greatly. Oil spills can cause impacts over a range of time scales, from only a few days to several years, or even decades in some cases. 

This report reviews the history and trends of oil spills in the United States; identifies the legal authorities governing oil spill prevention, response, and cleanup; and examines the threats of future oil spills in U.S. coastal waters. 
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Date of Report: April 30, 2010
Number of Pages: 38
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Tuesday, May 4, 2010

Particulate Matter (PM2.5): Implementation of the 1997 National Ambient Air Quality Standards (NAAQS)

Robert Esworthy
Specialist in Environmental Policy

Particulate matter (PM), including fine particulate matter (PM2.5) and larger, but still inhalable particles (PM10), is one of the six principal pollutants for which the U.S. Environmental Protection Agency (EPA) has set National Ambient Air Quality Standards (NAAQS) under the Clean Air Act (CAA). Primary NAAQS are designed to protect human health, with an adequate margin of safety. After years of litigation and other delays, EPA is implementing the NAAQS for PM2.5 promulgated in 1997. This report outlines the implementation process for the 1997 PM2.5 NAAQS and describes issues raised as EPA and states develop implementation strategies. 

The EPA's final designation of 39 areas, consisting of 205 counties in 20 states and the District of Columbia, as "nonattainment" (out of compliance) areas for the 1997 PM2.5 NAAQS became effective in April 2005. A combined population of almost 90 million resides in these areas. States with PM2.5 nonattainment areas are required to develop comprehensive implementation plans, referred to as State Implementation Plans (SIPs), demonstrating how attainment will be reached by a designated deadline. SIPs include pollution control measures that rely on models of the impact on air quality of projected emission reductions to demonstrate attainment. States were required to submit SIPs for the 1997 PM2.5 NAAQS by April 2008, but EPA did not begin receiving most submissions until July 2008. On November 27, 2009, EPA published its findings that three states failed to meet the deadline for submitting complete SIPs. For the remaining designated areas, states either submitted a complete SIP or EPA made a final approval that the area attained the 1997 PM2.5 NAAQS based on 2006-2008 air quality data. States must be in compliance by 2010, unless they are granted an extension. 

A number of issues will continue to be debated as the implementation of the 1997 PM2.5 NAAQS progresses. Although its decision was modified on December 23, 2008, the U.S. Court of Appeals for the D.C. Circuit's July 11, 2008, decision (North Carolina v. EPA) to vacate the Clean Air Interstate Rule (CAIR) introduced new concerns and disruptions with respect to the implementation of the 1997 PM2.5 NAAQS. Implementation of CAIR would have assisted states in addressing the interstate transport (upwind state) emission contributions in achieving attainment. The court's modified decision allows CAIR to remain in effect, but only temporarily until EPA promulgates a replacement rule, which could have future implications for implementing the PM2.5 NAAQS. EPA has projected July 2010 for proposing a replacement rule. 

In addition, other promulgated and proposed EPA rulemakings that influence various aspects of regulating air quality, including EPA's changes to the particulates NAAQS, could affect the 1997 PM2.5 NAAQS implementation process. As required under the CAA, EPA reviewed the PM2.5 and PM10 NAAQS, and on October 17, 2006, promulgated final revisions that included a strengthening of the 1997 PM2.5 standards. On November 13, 2009, EPA published its final designations for the 2006 PM2.5 NAAQS that include 120 counties and portions of counties in 18 states as nonattainment areas. EPA has initiated the next round of the periodic review of the particulates NAAQS and announced its intention to accelerate that review. 

As implementation of the 1997 NAAQS moves forward, its effects on states and tribes will be a continuing issue of interest to Congress. Although EPA has reported that 19 of the 39 nonattainment areas are currently meeting the 1997 PM2.5 standard according to the most recent air monitoring data, many questions and concerns remain. These include, for example, whether special provisions can be made for meeting attainment deadlines for areas affected by upwind pollution, and what impact the implementation of the 2006 particulates NAAQS will have.


Date of Report: April 16, 2010
Number of Pages: 32
Order Number: RL32431
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Monday, May 3, 2010

Bisphenol A (BPA) in Plastics and Possible Human Health Effects

Linda-Jo Schierow
Specialist in Environmental Policy

Sarah A. Lister
Specialist in Public Health and Epidemiology

Bisphenol A (BPA) is used to produce certain types of plastic that are used in thousands of formulations for myriad products. Containers made with these plastics may expose people to small amounts of BPA in food and water. Some animal experiments have found that fetal and infant development may be harmed by small amounts of BPA, but scientists disagree about the value of the animal studies for predicting harmful effects in people. 

In the United States and elsewhere, scientific disagreement about the possibility of human health effects that may result from BPA exposure has led to conflicting regulatory decisions regarding the safety of food containers, especially those intended for use by infants and children. In the United States, a conclusion by the Food and Drug Administration (FDA) that BPA use is safe conflicted with earlier findings by one panel of scientific advisors, and was later challenged by a second panel. These events prompted some to question FDA's process for the assessment of health risks such as this, and others to question the agency's fundamental ability to conduct such assessments competently. Recently, FDA expressed concern about possible health effects from BPA exposure and announced that it was conducting new studies on the matter, pending possible changes in its regulatory approach. 

In March 2010, the U.S. Environmental Protection Agency (EPA) released a "chemical action plan" for BPA that proposes to list BPA as a chemical of concern that may present an unreasonable risk to certain aquatic species at concentrations similar to those found in the environment, to consider rulemaking to gather additional data relevant to environmental effects, and to initiate collaborative alternatives assessment activities under its Design for the Environment (DfE) program to encourage reductions in BPA releases and exposures. 

Some food companies and bottle manufacturers have voluntarily changed to BPA-free products. It is reported that some companies are exploring alternatives to BPA-containing food cans. However, others have said that for some types of canned foods, alternatives that preserve the safety and quality of the food may not be currently available. 

In the 111th Congress, companion bills (S. 593/H.R. 1523) have been introduced that would prohibit the use of BPA in food and beverage containers regulated by the FDA. The Senate bill may be proposed as an amendment to pending food safety legislation (S. 510). A different approach to BPA regulation would be taken by a second pair of bills (S. 753/H.R. 4456) that would require Consumer Product Safety Commission (CPSC) prohibition of BPA use in children's food and beverage containers under the Federal Hazardous Substances Act. The House acted July 30, 2009, on a third approach when it approved H.R. 2749, the Food Safety Enhancement Act of 2009. Section 215 of the bill would require FDA to determine whether there was "a reasonable certainty of no harm for infants, young children, pregnant women, and adults, for approved uses of polycarbonate plastic and epoxy resin made with bisphenol A in food and beverage containers ... under the conditions of use prescribed in current [FDA] regulations." FDA would be required to notify Congress about any uses of BPA for which a determination could not be made and how the agency was planning to regulate to protect the public health. Finally, a fourth bill, H.R. 4341, would require a warning label on any food container containing BPA. 
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Date of Report: April 15, 2010
Number of Pages: 13
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues

Mary Tiemann
Specialist in Environmental Policy

Much progress has been made in assuring the quality of public water supplies since the Safe Drinking Water Act (SDWA) was first enacted in 1974. Public water systems must meet extensive regulations, and water utility management has become a much more complex and professional endeavor. The Environmental Protection Agency (EPA) has regulated some 91 drinking water contaminants, and more regulations are pending. In 2007, the number of community water systems reporting no violations of drinking water standards was 89.5%. Despite nationwide progress in providing safe drinking water, an array of issues and challenges remain. 

Recent issues have involved infrastructure funding needs, regulatory compliance issues, and concerns caused by detections of unregulated contaminants in drinking water, such as perchlorate and pharmaceuticals and personal care products (PPCPs). Another issue involves the adequacy of existing regulations (such as trichloroethylene (TCE)) and EPA's pace in reviewing and potentially revising older standards. Congress last reauthorized SDWA in 1996. Although funding authority for most SDWA programs expired in FY2003, Congress continues to appropriate funds annually for these programs. No broad reauthorization bills have been proposed, as EPA, states, and water systems continue efforts to implement current statutory programs and regulatory requirements. A long-standing and overarching SDWA issue concerns the cumulative cost and complexity of drinking water standards and the ability of water systems, especially small systems, to comply with standards. The issue of the affordability of drinking water regulations, such as those for arsenic, radium, and disinfection by-products, has merged with the larger debate over what is the appropriate federal role in assisting communities with financing drinking water projects needed for SDWA compliance, and for water infrastructure improvement generally. 

Water infrastructure financing legislation has been offered repeatedly in recent Congresses to authorize higher funding levels for the Drinking Water State Revolving Fund (DWSRF) program, and also to provide grants and other compliance assistance to small communities. In the 111th Congress, this issue found early focus in the economic stimulus debate, and the American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5) included $2 billion for the DWSRF program. The Omnibus Appropriations Act, 2009, provided $829 million for this program, and the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 (P.L. 111-88), included an additional $1.387 billion. The Senate Environment and Public Works Committee has reported S. 1005, a drinking water and wastewater infrastructure financing bill, and a bill to establish a water infrastructure trust fund, H.R. 3202, was introduced in the House. 

A newer SDWA issue concerns proposals and research regarding the underground injection of carbon dioxide (CO2) for long-term storage as a means of reducing greenhouse gas emissions. EPA has proposed regulations under SDWA to provide a national permitting framework for managing the underground injection of CO2 for commercial-scale sequestration projects. In August 2009, EPA published a notice of data availability and requested additional comment on the proposed rule. The Energy Independence and Security Act of 2007 (EISA; P.L. 110-140) included carbon sequestration research and development provisions, and specified that geologic sequestration activities shall be subject to SDWA provisions related to protecting underground drinking water sources. Another underground injection issue concerns the increasing use of hydraulic fracturing to produce natural gas from unconventional geologic formations. Bills have been introduced to authorize regulation of this practice under the SDWA underground injection control program.


Date of Report: April 22, 2010
Number of Pages: 27
Order Number: RL34201
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Fluoride in Drinking Water: A Review of Fluoridation and Regulation Issues


Mary Tiemann
Specialist in Environmental Policy

According to the Centers for Disease Control and Prevention (CDC), 67% of the 246 million people in the United States who receive their water from a public water system received fluoridated water in 2000. One of the CDC's national health goals is to increase the proportion of the U.S. population served by community water systems with "optimally" fluoridated drinking water to 75% by 2010. The decision to add fluoride to a water supply is made by local or state governments. The U.S. Public Health Service (PHS) has recommended an optimal fluoridation level in the range of 0.7 to 1.2 milligrams per liter (mg/L) for the prevention of tooth decay. The fluoridation of drinking water often generates both strong support and opposition within communities. This practice is controversial because fluoride has been found to have beneficial effects at low levels and is intentionally added to many public water supplies; however, at higher concentrations, it is known to have toxic effects. The Environmental Protection Agency (EPA) regulates the amount of fluoride that may be present in public water supplies to protect against fluoride's adverse health effects. Fluoridation opponents have expressed concern regarding potential adverse health effects of fluoride ingestion, and some view the practice as an undemocratic infringement on individual freedom. The medical and public health communities generally have recommended water fluoridation, citing it as a safe, effective, and equitable way to provide dental health protection community-wide.

Because the use of fluoridated dental products and the consumption of food and beverages made with fluoridated water have increased since the PHS recommended optimal levels for fluoridation, many people now may be exposed to more fluoride than had been anticipated. Consequently, questions have emerged as to whether current water fluoridation practices and levels offer the most appropriate ways to provide the expected beneficial effects of fluoride while avoiding adverse effects (most commonly, tooth mottling or pitting—dental fluorosis) that may result from ingestion of too much fluoride when teeth are developing. Also, scientific uncertainty regarding the health effects of exposure to higher levels of fluoride adds controversy to decisions regarding water fluoridation.

Although fluoride is added to water to strengthen teeth, some communities must treat their water to remove excess amounts of fluoride that is present either naturally or from pollution. In 1986, EPA issued a drinking water regulation for fluoride that includes an enforceable standard—a maximum contaminant level (MCL)—and an MCL goal (MCLG) of 4 mg/L to protect against adverse effects on bone structure. EPA acknowledged that the standard did not protect infants and young children against dental fluorosis, which EPA considered a cosmetic effect rather than a health effect. To address this concern, EPA included in the regulation a secondary (advisory) standard of 2 mg/L to protect children against dental fluorosis and adverse health effects. As part of its review of the fluoride regulation, EPA asked the National Research Council (NRC) to review the health risk data for fluoride and to assess the adequacy of EPA's standards. In March 2006, the NRC released its study and concluded that EPA's 4 mg/L MCLG should be lowered. EPA currently is developing a dose-response assessment and updating the relative contribution assessment for fluoride. Once these assessments have been completed and peer reviewed, EPA will be able to determine whether revisions to the drinking water standards would be appropriate.


Date of Report: April 21, 2010
Number of Pages: 22
Order Number: RL33280
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EPA Regulation of Greenhouse Gases: Congressional Responses and Options

James E. McCarthy
Specialist in Environmental Policy

Larry Parker
Specialist in Energy and Environmental Policy

The Environmental Protection Agency's promulgation of an "endangerment finding" for greenhouse gas (GHG) emissions in December 2009, and its subsequent promulgation of GHG emission standards for new motor vehicles on April 1, 2010, have raised concerns among some in Congress that the agency will now proceed to control GHG emissions from stationary sources, including power plants, manufacturing facilities, and others. Stationary sources account for 69% of U.S. emissions of greenhouse gases. If the United States is to reduce its total GHG emissions, as President Obama has committed to do, it will be necessary to address these sources. 

EPA's regulations limiting GHG emissions from new cars and light trucks will trigger at least two other Clean Air Act (CAA) provisions affecting stationary sources of air pollution. First, effective January 2, 2011, new or modified major stationary sources will have to undergo New Source Review (NSR) with respect to their GHGs in addition to any other pollutants subject to regulation under the CAA that are emitted by the source. This review will require affected sources to install Best Available Control Technology (BACT) to address their GHG emissions. Second, all major sources of GHGs (existing and new) will have to obtain permits under Title V of the CAA (or have existing permits modified to include their GHG requirements). Beyond these permitting requirements, because stationary sources, particularly coal-fired power plants, are a major source of greenhouse gas emissions, EPA is likely to find itself compelled to issue endangerment findings under other parts of the Act, resulting in New Source Performance Standards for stationary sources or emission standards under other sections of the Act. 

EPA shares congressional concerns about the potentially broad scope of these regulations, primarily because a literal reading of the act might require as many as 6,000,000 stationary sources to obtain permits. Thus, the agency has drafted a proposed "Tailoring Rule" so that it can focus its resources on the largest emitters while deciding over a six-year period what to do about smaller sources. Many of the specifics remain undecided: the agency is still in the process of determining both what the permit/BACT requirements will be and in what order sources would be subject to them. 

Many in Congress have suggested that EPA should delay taking action on these sources or should be prevented from doing so. Legislation has been introduced in both the House and Senate to achieve such results: four resolutions of disapproval under the Congressional Review Act (S.J.Res. 26, H.J.Res. 66, H.J.Res. 76, H.J.Res. 77) are aimed at EPA's determination under Section 202(a) of the Clean Air Act that GHGs cause or contribute to air pollution that endangers public health and welfare; five other bills would either require EPA to reevaluate its endangerment finding (H.Res. 974), amend the Clean Air Act to provide that greenhouse gases are not subject to the Act (H.R. 4396), limit EPA's GHG authority to motor vehicle emissions (S. 1622), or suspend EPA actions regulating stationary source emissions of GHGs for two years (S. 3072, H.R. 4753). 

This report discusses elements of this controversy, providing background on stationary sources of greenhouse gas pollution and identifying options Congress has at its disposal should it decide to address the issue. The report discusses four sets of options: (1) resolutions of disapproval under the Congressional Review Act; (2) freestanding legislation delaying or prohibiting EPA action; (3) the use of appropriations bills as a vehicle to restrain EPA activity; and (4) amendments to the Clean Air Act, including legislation such as H.R. 2454 or S. 1733, which would establish a new GHG control regime.


Date of Report: April 28, 2010
Number of Pages: 16
Order Number: R41212
Price: $29.95

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Sunday, May 2, 2010

2006 National Ambient Air Quality Standards (NAAQS) for Fine Particulate Matter (PM2.5): Designating Nonattainment Areas

Robert Esworthy
Specialist in Environmental Policy

The Environmental Protection Agency (EPA) published its final revisions to the National Ambient Air Quality Standards (NAAQS) for particulate matter (particulates, or PM) on October 17, 2006. EPA's actions leading up to and following promulgation of the 2006 standard have been the subject of considerable congressional oversight. EPA's ongoing implementation of the standard, beginning with the designation of those geographical areas not in compliance, will likewise be an area of concern and debate among many Members of Congress, states, and other stakeholders for some time. 

Promulgation of NAAQS sets in motion a process under which the states and the EPA identify areas that exceed the standard ("nonattainment areas") using multi-year air quality monitoring data and other criteria, requiring states to take steps to reduce pollutant concentrations in order to achieve it. On November 13, 2009, EPA published its final designations for the 2006 PM NAAQS that include 120 counties and portions of counties in 18 states as nonattainment areas based on 2006 through 2008 air quality monitoring data. The final designations, which include tribal land of 22 tribes, were effective as of December 14, 2009. States have three years from the effective date to submit State Implementation Plans (SIPs), which identify specific regulations and emission control requirements that would bring an area into compliance. 

In December of 2008 EPA had identified 211 counties and portions of counties (58 areas) in 25 states for designation as nonattainment for the 2006 PM NAAQS based on 2005 through 2007 data. The publication of these designations—and thus the effective date of the final designations—was delayed pending review by the current Administration. The review was initiated, in part, in response to a White House January 20, 2009, memorandum regarding regulatory review. This review and the availability of more current air quality monitoring data resulted in the final designations published in November 2009. 

The 2006 NAAQS strengthened the pre-existing (1997) standard for "fine" particulate matter 2.5 micrometers or less in diameter (PM2.5) by lowering the allowable daily concentration of PM2.5 in the air. The daily standard averaged over 24-hour periods is reduced from 65 micrograms per cubic meter (μg/m3) to 35 μg/m3. However, the annual PM2.5 standard, which addresses human health effects from chronic exposures to the pollutants, is unchanged from the 1997 standard of 15 μg/m3. The 2006 NAAQS did not substantially modify the daily standard for slightly larger, but still inhalable, particles less than or equal to 10 micrometers (PM10), retaining the 24-hour standard but revoking the annual standard for PM10. 

EPA's final nonattainment designations are only for the revised 2006 24-hour PM2.5 standard. The EPA did not require new nonattainment designations for PM10. The final designations for the 2006 PM2.5 NAAQS include a few areas designated nonattainment for PM2.5 for the first time, but, as expected, the majority of the counties identified overlap with EPA's final nonattainment designations for the 1997 PM2.5 NAAQS. EPA's designations for the 1997 PM2.5 NAAQS included all or part of 204 counties in 20 states and the District of Columbia. Most of them were only exceeding the annual standard; only 12 counties were exceeding both the 24-hour and the annual standards. Thus, the 2006 tightening of the 24-hour standard resulted in an increased number of areas being designated nonattainment based on exceedances of both the 24-hour and the annual standards. EPA's next round of the periodic review of the particulates NAAQS is under way, and the agency announced its intention to accelerate the review.


Date of Report: April 21, 2010
Number of Pages: 37
Order Number: R40096
Price: $29.95

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