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Tuesday, August 31, 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). EPA most recently revised the particulates NAAQS in October 2006, but is due to propose revised standards in December 2010 and promulgate them by August 2011.While currently much of the interest in the particulates NAAQS is focused on reviewing the NAAQS and speculation as to the degree of stringency of any new standards, implementing revised standards can take many years. EPA and states are in the early stages of implementing the 2006 revised standards, and have not finalized implementation of the standards promulgated in 1997 after years of litigation and other delays. This report outlines the implementation process for the 1997 PM2.5 NAAQS and describes issues raised as EPA and states developed and employed implementation strategies for achieving attainment. 

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. Notably, 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 December 23, 2008, 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. On August 2, 2010, EPA published a proposed "Transport Rule" intended to supersede the current CAIR. In addition, other promulgated and proposed EPA rulemakings that influence various aspects of regulating air quality, including EPA's 2006 changes to the particulates NAAQS, continue to impact the 1997 PM2.5 NAAQS implementation process. 

EPA and states have encountered similar issues in implementing the 2006 revised particulates NAAQS. Whatever the outcome of the current review of the particulates NAAQS, implementation of any changes to the standards in many regards will also likely mirror the experience of EPA and states following the promulgation of the PM2.5 NAAQS 13 years ago.



Date of Report: August 9, 2010
Number of Pages: 33
Order Number: RL32431
Price: $29.95

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Pesticide Registration and Tolerance Fees: An Overview

Robert Esworthy
Specialist in Environmental Policy

The U.S. Environmental Protection Agency (EPA) is responsible for regulating the sale, use, and distribution of pesticides under the authority of two statutes. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C.136-136y), a licensing statute, requires EPA to review and register the use of pesticide products. The Federal Food, Drug, and Cosmetic Act (FFDCA) (21 U.S.C. 346a) requires the establishment of maximum limits (tolerances) for pesticide residues on food in interstate commerce. EPA was also required to reevaluate older, registered pesticides (i.e., "reregistration" for pesticides registered prior to 1984, and more recently, registration review) and to reassess existing tolerances (i.e., tolerance reassessment) to ensure they meet current safety standards. Although U.S. Treasury revenues cover most costs for administering these acts, fees paid by pesticide manufacturers and other registrants have supplemented EPA appropriations for many years as a means of increasing the pace of the agency's activities under FIFRA and FFDCA. 

The Pesticide Registration Improvement Act (PRIA 1), included in the Consolidated Appropriations Act, 2004 (P.L. 108-199, Title V of Division G), enacted on January 23, 2004, amended FIFRA and modified the framework for collecting fees to enhance and accelerate the agency's pesticide licensing (registration) activities. The amendments included reauthorization of maintenance fees primarily to support activities related to existing registrations, and established registration service fees to be submitted with applications for new registrations. The Pesticide Registration Improvement Renewal Act, or PRIA 2 (P.L. 110-94), enacted October 9, 2007, reauthorized and revised these fee provisions, which would have expired at the end of FY2008. In February 2010, EPA reported the completion of 1,570 registration and reregistration decisions subject to PRIA during FY2009, for a total of 7,530 since the enactment of PRIA 1 in 2004. For FY2009, EPA reported expending $18.5 million of the $25.5 million received in the form of new registration fees collected in FY2009 ($16.1 million in net receipts) and carried forward from FY2008 ($9.4 million). 

Authority for collecting pesticide fees dates back to the 1954 FFDCA amendments (P.L. 518; July 22, 1954), which, as passed, required the collection of fees "sufficient to provide adequate service" for establishing maximum residue levels (tolerances) for pesticides on food. Authority to collect fees was expanded with the 1988 FIFRA amendments (P.L. 100-532). The 1996 amendments to FIFRA and FFDCA, or the Food Quality Protection Act (FQPA) (P.L. 104-170), extended EPA's authority to collect certain fees through FY2001. Congress extended this authority annually through appropriations legislation prior to the enactment of PRIA in 2004. 

The FY1998-FY2004 President's budget requests included proposals to modify existing fee structures to further increase revenues for pesticide activities. These proposals were not adopted in legislation and in some cases specifically prohibited by Congress. In each fiscal year budget request since PRIA was enacted in 2004, EPA has included proposals to further increase pesticide fees beyond those authorized. These proposals were not adopted by Congress in each year through FY2010. The FY2011 President's budget request included similar proposals to provide for the collection of additional pesticide fees.



Date of Report: August 11, 2010
Number of Pages: 30
Order Number: RL32218
Price: $29.95

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Stormwater Permits: Status of EPA’s Regulatory Program

Claudia Copeland
Specialist in Resources and Environmental Policy


The Environmental Protection Agency (EPA) and states are implementing a federally mandated program for controlling stormwater discharges from industrial facilities and municipalities. Large cities and most industry sources are subject to rules issued in 1990, and EPA issued permit rules to cover smaller cities and other industrial sources and construction sites in 1999. Because of the large number of affected sources and deadline changes that led to confusion, numerous questions have arisen about this program. Impacts and costs of the program's requirements, especially on cities, are a continuing concern. 

The 109th Congress enacted omnibus energy legislation (P.L. 109-58, the Energy Policy Act of 2005) that included a provision giving the oil and gas industry regulatory relief from some stormwater control requirements. In May 2008, a federal court vacated an EPA rule implementing this provision; EPA intends to issue a revised rule that repeals the rule that was vacated by the court and codifies the statutory exemption in P.L. 109-58, but the agency does not have a specific schedule for doing so. In the 111th Congress, the House has passed a bill that includes a provision that would repeal the exemption in P.L. 109-158 (H.R. 3454). 

Congress often looks to federal agencies to lead or test new policy approaches, a fact reflected in legislation enacted in the 110th Congress. Section 438 of the Energy Independence and Security Act (EISA) requires federal agencies to implement strict stormwater runoff requirements for development or redevelopment projects involving a federal facility in order to reduce stormwater runoff and associated pollutant loadings. EPA has issued technical guidance for federal agencies to use in meeting these requirements. 

In 2008 the National Research Council issued a report calling for major changes to EPA's stormwater regulatory program which it criticized as being inconsistent nationally and failing to adequately control all sources of stormwater discharge that contribute to waterbody impairment. In response, EPA has initiated information-gathering and public dialogue activities as a prelude to possible changes to supplement or expand regulations and strengthen the current program.



Date of Report: August 19, 2010
Number of Pages: 12
Order Number: 97-290
Price: $29.95

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Lead-Based Paint Poisoning Prevention: Summary of Federal Mandates and Financial Assistance for Reducing Hazards in Housing

Linda-Jo Schierow
Specialist in Environmental Policy


Many U.S. children have unacceptably high levels of lead in their blood, which may result in reduced intellectual ability, learning disabilities, or other health concerns. A key source of lead exposure often is house dust containing lead-based paint (LBP) from deteriorated or abraded surfaces of walls, door jambs, and window sashes. The federal Lead-Based Paint Poisoning Prevention Act (LBPPPA), as amended, establishes requirements and authorizes funding for the detection and control of LBP hazards in federally assisted housing. The Residential Lead-Based Paint Hazard Reduction Act of 1992 (Housing and Community Development Act of 1992, Title X; P.L. 102-550) authorizes federal grants to state and local governments to provide assistance to private owners of other housing (i.e., not federally assisted) for low-income residents for LBP hazard reduction. The federal strategy to reduce childhood exposure to LBP promotes interim measures, rather than complete removal of LBP, to eliminate by 2010 hazards from housing units constructed prior to 1960. In 2000, President Clinton's Task Force on Environmental Health Risks and Safety Risks to Children suggested that the use of financial incentives, such as tax credits or deductions, might be explored to reduce LBP hazards in housing for additional low-income families not served by HUD grants and moderate-income families with young children. Legislation (S. 1245) to provide such incentives has been introduced into the 111h Congress.


Date of Report: August 17, 2010
Number of Pages: 8
Order Number: RS21688
Price: $19.95

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Monday, August 30, 2010

Regulating Coal Combustion Waste Disposal: Issues for Congress

Linda Luther
Analyst in Environmental Policy

Coal combustion waste (CCW) is inorganic material that remains after pulverized coal is burned for electricity production. A tremendous amount of the material is generated each year—industry estimates that as much as 136 millions tons was generated in 2008. On December 22, 2008, national attention was turned to issues regarding the waste when a breach in an impoundment pond at the Tennessee Valley Authority's (TVA's) Kingston, TN, power plant released 1.1 billion gallons of coal ash slurry. The cleanup cost has been estimated to reach $1.2 billion. 

While the incident at Kingston drew national attention to the potential for a sudden catastrophic release of waste, it is not the primary risk attributed to CCW management. An April 2010 risk assessment by the Environmental Protection Agency (EPA) indicated that CCW disposal in unlined landfills and surface impoundments presents substantial risks to human health and the environment from releases of toxic constituents (particularly arsenic and selenium) into surface and groundwater. Those releases are largely prevented when the waste is disposed of in landfills and surface impoundments equipped with composite liners. In addition to potential risks, EPA has reported numerous cases of documented damages to surface and groundwater when CCW was deposited into unlined disposal units or used as construction fill. 

The disposal of CCW is essentially exempt from federal regulation. Instead, it is regulated in accordance with requirements established by individual states. Deficiencies in many state regulatory programs outlined by EPA in a May 2000 regulatory determination have not been addressed. Recently collected data regarding existing state regulatory programs are seen as calling into question the effectiveness of those programs in protecting human health and the environment. Many state regulatory CCW management programs do not include protections such as requirements for liners and groundwater monitoring. 

To establish national standards intended to address risks associated with potential CCW mismanagement, on June 21, 2010, EPA proposed two regulatory options to manage the waste. The first would draw on EPA's existing authority to identify a waste as hazardous and regulate it under the waste management standards established under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The second option would establish regulations applicable to CCW disposal units under RCRA's Subtitle D solid waste management requirements. Under Subtitle D, EPA does not have the authority to implement or enforce its proposed requirements. Instead, EPA would rely on states or citizen suits to enforce the new standards. 

Industry groups, environmental and citizen groups, state agency representatives, and some Members of Congress have expressed concern over EPA's proposal. The primary questions and concerns regarding the Subtitle C proposal relate to its ultimate impact on coal-producing states, energy prices, and CCW recycling opportunities. Concern about the Subtitle D proposal primarily relates to whether it would sufficiently protect human health and the environment, given EPA's lack of authority to enforce it. Commenters have proposed various legislative options in response to these varied concerns. Some suggest Congress should designate CCW as hazardous waste under Subtitle C. Alternatively, others suggest prohibiting EPA from regulating the material under Subtitle C and/or providing EPA with direct authority to develop criteria applicable to landfills and surface impoundments that receive CCW under Subtitle D. Congress might also consider a new subtitle under RCRA directing EPA to develop disposal facility criteria similar to those under Subtitle D, but providing EPA with federal enforcement authority similar to Subtitle C, without explicitly designating the material a hazardous waste.


Date of Report: August 9, 2010
Number of Pages: 23
Order Number: R41341
Price: $29.95

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Wednesday, August 25, 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. Medical devices and other more ubiquitous products, such as thermal paper coatings, also may contribute significantly to human exposure. 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, bottle manufacturers, and paper receipt producers 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 currently may not be 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.



Date of Report: August 13, 2010
Number of Pages: 13
Order Number: RS22869
Price: $29.95

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Sunday, August 22, 2010

Federal Civil and Criminal Penalties Possibly Applicable to Parties Responsible for the Gulf of Mexico Oil Spill

Robert Meltz
Legislative Attorney


Since the Deepwater Horizon oil spill began on April 20, 2010, Congress has given much attention to the compensatory liability provisions of the Oil Pollution Act and, to a lesser extent, those of the Jones Act and the Death on the High Seas Act. However, federal laws possibly relevant to the oil spill also impose civil and criminal money penalties, which may reach dollar amounts in connection with the Gulf spill greater than those for compensatory liability. This report summarizes selected federal civil and criminal penalty provisions that may be found violated in connection with the Gulf spill and related worker fatalities. It does not purport to be exhaustive. CRS stresses that it has no knowledge of the facts surrounding the Gulf spill other than what has been publicly reported; hence the provisions listed here are only an informed guess as to those that ultimately may be found violated

At the outset, the penalty ceilings in the program statutes listed in this report may not be the applicable ones. As for civil penalty ceilings, the Federal Civil Penalties Inflation Adjustment Act requires federal agencies to adjust at least once every four years the maximum (and minimum, if any) dollar amount on civil penalties within their jurisdiction to reflect movement in the Consumer Price Index. As for criminal penalty ceilings, the Criminal Fine Improvements Act often applies. Under this statute, the maximum criminal fine a court may impose may be up to the greater of the amount specified in the law setting forth the offense or various alternative ceilings in the Criminal Fine Improvements Act. 

For each statute listed, the report describes any civil administrative penalties, civil judicial penalties, and criminal penalties authorized by the statute that conceivably might be relevant to the Gulf spill. The program statutes covered are the Clean Water Act, Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act, Oil Pollution Act, Outer Continental Shelf Lands Act, and Occupational Safety and Health Act. In addition, the report lists several provisions in the federal penal code that are often used in the prosecution of environmental crimes—involving aiding and abetting, conspiracy, false statements to the federal government, mail fraud, wire fraud, and obstruction of justice
.


Date of Report: August 16, 2010
Number of Pages: 13
Order Number: R41370
Price: $29.95

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Thursday, August 19, 2010

Proposed Amendments to the Toxic Substances Control Act (TSCA):A Side-by-Side Comparison with Current Law

Linda-Jo Schierow
Specialist in Environmental Policy


The Toxic Substances Control Act (TSCA) was signed in 1976 by President Gerald R. Ford. Thirty-five years of experience with TSCA implementation and enforcement have demonstrated the strengths and weaknesses of the law and led many to propose legislative changes to TSCA's core provisions. On April 15, 2010, Senator Lautenberg introduced comprehensive legislation (S. 3209) to amend TSCA Title I, and Representatives Waxman and Rush posted draft TSCA reform legislation on the home page of the House Committee on Energy and Commerce. This report compares key provisions of S. 3209, as introduced, the House draft of April 16, 2010, and current law (15 U.S.C. 2601 et seq.). 

Both proposals would amend TSCA to shift the burden of demonstrating safety from the U.S. Environmental Protection Agency (EPA) to manufacturers and processors of chemicals, and would prohibit manufacture, processing, and distribution of any chemical substance or mixture for which safety has not been demonstrated to EPA's satisfaction. Although they propose somewhat different safety standards for EPA to enforce, both proposals suggest a health-based standard. In contrast, current law requires that a chemical not pose "an unreasonable risk of injury to health or the environment," and that regulation should control any unreasonable risk to the extent necessary using the "least burdensome" means of available control. This TSCA standard has been interpreted to require cost-benefit balancing. To facilitate safety assessment, the proposals would require data development and submission to EPA for all chemicals in commerce. TSCA amendments would direct EPA to target chemicals with particular characteristics (for example, persistence in the environment) for earlier evaluation and possible risk management. Any regulatory action would be expedited, for example, by allowing EPA to issue orders rather than rules. 

The proposals differ in many details and in several noteworthy ways. For example, for all existing chemicals that have not been placed on a priority list, data sets must be submitted within 14 years of the date of enactment of S. 3209, but within five years of enactment of the House draft. The proposals also treat the identification of chemicals of highest concern differently. The House draft directs EPA to expedite action for 31 specified chemicals and chemical groups, while S. 3209 leaves identification of such chemicals to the Administrator's discretion. These and other provisions of the two legislative proposals are compared with current law in Tables 1 through 6
.


Date of Report: July 28, 2010
Number of Pages: 60
Order Number: R41335
Price: $29.95

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The Deepwater Horizon Oil Spill: Coastal Wetland and Wildlife Impacts and Response

M. Lynne Corn
Specialist in Natural Resources Policy

Claudia Copeland
Specialist in Resources and Environmental Policy

The explosion of the Deepwater Horizon drilling rig in the Gulf of Mexico on April 20, 2010, and the resulting oil spill began a cascade of effects on the coastal areas of the Gulf and on the wealth of species that inhabit those areas. These wetlands, like those elsewhere, have value for water quality, flood control, shoreline protection, and recreation. They serve as nurseries for many species, including fish and shellfish of commercial significance, waterfowl, and a host of resident and migratory species. They also have cultural importance to the people of the Gulf. The effects of the spill come on top of historic wetland losses due to subsidence, drainage, and saltwater intrusion, along with rising sea levels, coastal erosion, and global climate change. 

Impacts of oil spills on wetland ecosystems depend on multiple factors, including the type of oil, exposure of the oil to weathering factors before it reaches the shore, the season in which the spill occurs, etc. Estimating wildlife impacts is particularly difficult in this case because the spill occurred far offshore, and the initial wildlife mortality came far out in the Gulf, where animals sank without reaching the shore. With the arrival of oil closer to the shore, more animals could be counted. Moreover, because the Gulf wetlands host many species of birds during seasonal migrations, impacts of the spill could be felt in areas well away from the Gulf. Mitigation and cleanup of damage to wetlands is far from an exact science and involves many tradeoffs: there is no single, best solution. This report describes a range of options from mechanical recovery and use of dispersants to doing nothing. 

Among other issues is a seemingly simple question: who decides what to do? But the answer is complex. The organizational structure for deciding how to respond to oil spills is specified in the National Contingency Plan (NCP), which was created administratively and has been broadened by the Clean Water Act, the Superfund law, and the Oil Pollution Act. Under the NCP structure, the Coast Guard is the lead federal agency for overseeing response and cleanup. Oil has reached more than 10% of Gulf shoreline, but until oil from the well stopped flowing, very little cleanup of wetlands was occurring, because of both the ongoing risk of greater harm from cleanup and the potential for re-oiling. As cleanup proceeds, a number of questions arise. To cite only two, what factors will determine cleanup strategies, and how are needs to improve scientific understanding of the spill's impacts being considered? 

Decisions about cleanup of wildlife are no easier. Cleanup of individual animals is laborintensive, and some scientists argue that the survival of an animal that has been cleaned is so uncertain as to call into question whether treatment is, in fact, humane. Rescue groups are dedicated to salvaging those that can still be saved. The effects on a species as a whole vary markedly from one species to another, depending on that species' abundance and ecological needs; appropriate responses at the species level are unclear. 

Additionally, the advent of hurricane season poses new risks to areas that may not otherwise be affected directly by the spill. History, particularly from the relatively well-studied Exxon Valdez spill of 1989, offers insight into the future of Gulf resources as well. First, some cleanup efforts might do more harm than good in the long run. Second, it is not possible to predict all of the ramifications for the complex Gulf ecosystem in the decades to come, but history suggests that at least some effects will continue for decades. Finally, litigation could play a major role in disseminating—or not disseminating—scientific information about the spill and its effects.



Date of Report: August 5, 2010
Number of Pages: 29
Order Number: R41311
Price: $29.95

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Deepwater Horizon Oil Spill: Selected Issues for Congress

Curry L. Hagerty, Coordinator
Specialist in Energy and Natural Resources Policy

Jonathan L. Ramseur, Coordinator
Specialist in Environmental Policy

On April 20, 2010, an explosion and fire occurred on the Deepwater Horizon drilling rig in the Gulf of Mexico. This resulted in 11 worker fatalities, a massive oil release, and a national response effort in the Gulf of Mexico region by the federal and state governments as well as BP. Based on estimates from the Flow Rate Technical Group, which is led by the U.S. Geological Survey, the 2010 Gulf spill is the largest oil spill in U.S. waters. The oil spill has damaged natural resources and has had regional economic impacts. In addition, questions have been raised as to whether offshore regulation of oil exploration has kept pace with the increasingly complex technologies needed to explore and develop deeper waters. 

Crude oil has been washing into marshes and estuaries and onto beaches in Louisiana, Mississippi, and Alabama. Oil has killed wildlife, and efforts are underway to save oil-coated birds. The most immediate economic impact of the oil spill has been on the Gulf fishing industry: commercial and recreational fishing have faced extensive prohibitions within the federal waters of the Gulf exclusive economic zone. The fishing industry, including seafood processing and related wholesale and retail businesses, supports over 200,000 jobs with related economic activity of $5.5 billion. Other immediate economic impacts include a decline in tourism. On the other hand, jobs related to cleanup activities could mitigate some of the losses in the fishing and tourism industry. 

The Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE), formerly known as the Minerals Management Service (MMS), and the U.S. Coast Guard are the primary regulators of drilling activity. The Coast Guard generally overseas the safety of systems at the platform level of a mobile offshore drilling unit. The Environmental Protection Agency (EPA) has multiple responsibilities, with a representative serving as the vice-chair of the National Response Team and Regional Response Teams. The Federal Emergency Management Administration (FEMA) has responsibilities with respect to the economic impacts of the spill; its role so far has been primarily that of an observer, but that may change once the scope of impacts can be better understood. 

BOEMRE/MMS is also the lead regulatory authority for offshore oil and gas leasing, including collection of royalty payments. Its regulations generally require that a company with leasing obligations demonstrate that proposed oil and gas activity conforms to federal laws and regulations, is safe, prevents waste, does not unreasonably interfere with other uses of the outer continental shelf, and does not cause impermissible harm or damage to the human, marine, or coastal environments. Further attention to the internal organization of BOEMRE/MMS is an ongoing legislative and regulatory focus. 

Several issues are developing for Congress as a result of the Deepwater Horizon incident. Questions include: What lessons should be drawn from the incident? What technological and regulatory changes may be needed to meet risks peculiar to drilling in deeper water? How should Congress distribute costs associated with a catastrophic oil spill? What interventions may be necessary to ensure recovery of Gulf resources and amenities? What does the Deepwater Horizon incident imply for national energy policy, and the trade-offs between energy needs, risks of deepwater drilling, and protection of natural resources and amenities? This report provides an overview of selected issues related to the Deepwater Horizon incident and is not intended to be comprehensive.


Date of Report: July 30, 2010
Number of Pages: 53
Order Number: R41262
Price: $29.95

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Monday, August 16, 2010

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. 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. Two bills to revise and reauthorize the DWSRF have been approved by committee: S. 1005 (which also would revise the clean water SRF) and H.R. 5320, the Assistance, Quality, and Affordability (AQUA) Act. Taking a different approach, H.R. 3202 would establish a water infrastructure trust fund supported by specified product and corporate taxes rather than appropriations. 

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. Two bills (H.R. 2766 and S. 1215), referred to as the FRAC Act, have been introduced to explicitly authorize regulation of this practice under the SDWA underground injection control program. 
.


Date of Report: July 27, 2010
Number of Pages: 29
Order Number: RL34201
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Animal Waste and Hazardous Substances: Current Laws and Legislative Issues

Claudia Copeland
Specialist in Resources and Environmental Policy


The animal sector of agriculture has undergone major changes in the last several decades: organizational changes within the industry to enhance economic efficiency have resulted in larger confined production facilities that often are geographically concentrated. These changes, in turn, have given rise to concerns over the management of animal wastes and potential impacts on environmental quality. 

Federal environmental law does not regulate all agricultural activities, but certain large animal feeding operations (AFOs) where animals are housed and raised in confinement are subject to regulation. The issue of applicability of these laws to livestock and poultry operations— especially the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, the Superfund law) and the Emergency Planning and Community Right-to-Know Act (EPCRA)—has been controversial and has drawn congressional attention. 

Both Superfund and EPCRA have reporting requirements that are triggered when specified quantities of certain substances are released to the environment. In addition, Superfund authorizes federal cleanup of releases of hazardous substances, pollutants, or contaminants and imposes strict liability for cleanup and injuries to natural resources from releases of hazardous substances. 

Superfund and EPCRA include citizen suit provisions that have been used to sue poultry producers and swine operations for violations of those laws. In two cases, environmental advocates claimed that AFO operators had failed to report ammonia emissions, in violation of Superfund and EPCRA. In both cases, federal courts supported broad interpretation of key terms defining applicability of the laws' reporting requirements. Three other cases not dealing with reporting violations also have attracted attention, in part because of questions of whether animal wastes contain hazardous substances that can create cleanup and natural resource damage liability under Superfund. Two of these cases were settled; the third, brought by the Oklahoma Attorney General against poultry operations in Arkansas, is pending. 

These lawsuits testing the applicability of Superfund and EPCRA to poultry and livestock operations have led to congressional interest in these issues. In the 109th and 110th Congresses, legislation was introduced that would have amended CERCLA to clarify that manure is not a hazardous substance, pollutant, or contaminant under that act and that the laws' notification requirements would not apply to releases of manure. Proponents argued that Congress did not intend that either of these laws apply to agriculture and that enforcement and regulatory mechanisms under other laws are adequate to address environmental releases from animal agriculture. Opponents responded that enacting an exemption would severely hamper the ability of government and citizens to know about and respond to releases of hazardous substances caused by an animal agriculture operation. 

In December 2008, EPA issued a rule to exempt animal waste emissions to the air from most CERCLA and EPCRA reporting requirements. The Obama Administration has told a federal court that it intends to revise the rule, which has been challenged by environmental groups and some in industry.



Date of Report: July 26, 2010
Number of Pages: 13
Order Number: RL33691
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Friday, August 13, 2010

U.S. Global Climate Change Policy: Evolving Views on Cost, Competitiveness, and Comprehensiveness

Larry Parker
Specialist in Energy and Environmental Policy

John Blodgett
Specialist in Environmental Policy

Brent D. Yacobucci
Specialist in Energy and Environmental Policy

The nature of greenhouse gas (GHG) emissions (particularly carbon dioxide (CO2) emissions) makes their control difficult to integrate with the U.S economy and traditional U.S. energy policy. Despite the obvious interrelationship between energy policy and greenhouse gas (GHG) emissions, the United States has struggled to integrate the two. For a country that has traditionally used its relatively cheap supply of energy to substitute for more expensive labor and capital costs to compete internationally, this linkage is particularly strong, as witnessed by the nation's high GHG emissions per capita. In the face of this economic reality, along with continuing scientific uncertainty, debate over a greenhouse gas (GHG) reduction program can be categorized by three inter-related Cs: Cost, Competitiveness, and Comprehensiveness. 

Cost
typically refers to some monetary estimate of what a GHG reduction program would require, often expressed as a gross dollar amount or as a percentage reduction in gross domestic product for some period of time. Competitiveness, at the simplest level, reflects concerns about what firms would be disadvantaged by cost increases as a result of GHG reduction requirements. Comprehensiveness concerns the extent to which all nations have to meet comparable GHG reduction requirements—in contrast to the current situation in which developing nations, such as China, have no obligation to actually reduce emissions. 

Fundamental policy assumptions regarding each of the three Cs have changed between the U.S. ratification of the 1992 UNFCCC and key events of the first decade of the 21st century—the George W. Bush Administration's 2001 decision to abandon the Kyoto Protocol process and the 2009 negotiations at Copenhagen. 

First, the ratification of the UNFCCC was based at least partially on the premise that significant reductions could be achieved at little or no cost. This assumption helped to reduce concern some had that the treaty could have deleterious effects on U.S. competitiveness. Further ameliorating this concern, compliance with the treaty was voluntary. But the assumption has never lacked critics; and their views—and to some extent, experience based on alternative energy costs—have rendered the "low cost" assumption tenuous in the eyes of many. 

Second, the UNFCCC was approved at a time when salient competitiveness issues were focused as much or more on developing nations, rather than developing ones. But the competitiveness issue has increasingly refocused on the rapidly growing economies, especially of India and China—shifting the competitiveness concern to countries that have been absolved from mandatory reduction requirements while they grow their economies. 

And third, the UNFCCC was approved at a time when the developed nations dominated GHG emissions, and it was assumed comprehensiveness could be subordinated temporarily to the imperative for developing nations to grow their economies. But by 2005 China had passed the United States to become the world's largest emitter. 

The Copenhagen Agreement tried to preserve the twin goals of economic development and emissions reductions by allowing each nation to determine the costs it would accept; and also by establishing a mechanism by which the developed nations would provide funds for greenhouse gas reduction actions by developing nations. What remains to be seen is whether any voluntary program can successfully reduce emissions sufficiently to meet the UNFCCC goal of holding the increase in global temperatures to 2 degrees C
.


Date of Report: June 25, 2010
Number of Pages: 18
Order Number: RL30024
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The Deepwater Horizon Oil Spill: Coastal Wetland and Wildlife Impacts and Response

M. Lynne Corn
Specialist in Natural Resources Policy

Claudia Copeland
Specialist in Resources and Environmental Policy

The explosion of the Deepwater Horizon drilling rig in the Gulf of Mexico on April 20, 2010, and the resulting oil spill began a cascade of effects on the coastal areas of the Gulf and on the wealth of species that inhabit those areas. These wetlands, like those elsewhere, have value for water quality, flood control, shoreline protection, and recreation. They serve as nurseries for many species, including fish and shellfish of commercial significance, waterfowl, and a host of resident and migratory species. They also have cultural importance to the people of the Gulf. The effects of the spill come on top of historic wetland losses due to subsidence, drainage, and saltwater intrusion, along with rising sea levels, coastal erosion, and global climate change. 

Impacts of oil spills on wetland ecosystems depend on multiple factors, including the type of oil, exposure of the oil to weathering factors before it reaches the shore, the season in which the spill occurs, etc. Estimating wildlife impacts is particularly difficult in this case because the spill occurred far offshore, and the initial wildlife mortality came far out in the Gulf, where animals sank without reaching the shore. With the arrival of oil closer to the shore, more animals could be counted. Moreover, because the Gulf wetlands host many species of birds during seasonal migrations, impacts of the spill could be felt in areas well away from the Gulf. Mitigation and cleanup of damage to wetlands is far from an exact science and involves many tradeoffs: there is no single, best solution. This report describes a range of options from mechanical recovery and use of dispersants to doing nothing. 

Among other issues is a seemingly simple question: who decides what to do? But the answer is complex. The organizational structure for deciding how to respond to oil spills is specified in the National Contingency Plan (NCP), which was created administratively and has been broadened by the Clean Water Act, the Superfund law, and the Oil Pollution Act. Under the NCP structure, the Coast Guard is the lead federal agency for overseeing response and cleanup. Oil has reached more than 10% of Gulf shoreline, but until oil from the well stops flowing, very little cleanup of wetlands is occurring, because of both the ongoing risk of greater harm from cleanup and the potential for re-oiling. As cleanup proceeds, a number of questions arise. To cite only two, what factors will determine cleanup strategies, and how are needs to improve scientific understanding of the spill's impacts being considered? 

Decisions about cleanup of wildlife are no easier. Cleanup of individual animals is laborintensive, and some scientists argue that the survival of an animal that has been cleaned is so uncertain as to call into question whether treatment is, in fact, humane. Rescue groups are dedicated to salvaging those that can still be saved. The effects on a species as a whole vary markedly from one species to another, depending on that species' abundance and ecological needs; appropriate responses at the species level are unclear. 

Additionally, the advent of hurricane season poses new risks to areas that may not otherwise be affected directly by the spill. History, particularly from the relatively well-studied Exxon Valdez spill of 1989, offers insight into the future of Gulf resources as well. First, some cleanup efforts might do more harm than good in the long run. Second, it is not possible to predict all of the ramifications for the complex Gulf ecosystem in the decades to come, but history suggests that at least some effects will continue for decades. Finally, litigation could play a major role in disseminating—or not disseminating—scientific information about the spill and its effects
.


Date of Report: July 7, 2010
Number of Pages: 29
Order Number: R41311
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Monday, August 2, 2010

Regulating Coal Combustion Waste Disposal: Issues for Congress


Linda Luther
Analyst in Environmental Policy


Coal combustion waste (CCW) is inorganic material that remains after pulverized coal is burned for electricity production. A tremendous amount of the material is generated each year—industry estimates that as much as 136 millions tons was generated in 2008. On December 22, 2008, national attention was turned to issues regarding the waste when a breach in an impoundment pond at the Tennessee Valley Authority's (TVA's) Kingston, Tennessee, power plant released 1.1 billion gallons of coal ash slurry. The cleanup cost has been estimated to reach $1.2 billion.

While the incident at Kingston drew national attention to the potential for a sudden catastrophic release of waste, it is not the primary risk attributed to CCW management. An April 2010 risk assessment by the Environmental Protection Agency (EPA) indicated that CCW disposal in unlined landfills and surface impoundments presents substantial risks to human health and the environment from releases of toxic constituents (particularly arsenic and selenium) into surface and groundwater. Those releases are largely prevented when the waste is disposed of in landfills and surface impoundments equipped with composite liners. In addition to potential risks, EPA has reported numerous cases of documented damages to surface and groundwater when CCW was deposited into unlined disposal units or used as construction fill.

The disposal of CCW is essentially exempt from federal regulation. Instead, it is regulated in accordance with requirements established by individual states. Deficiencies in many state regulatory programs outlined by EPA in a May 2000 regulatory determination have not been addressed. Recently collected data regarding existing state regulatory programs are seen as calling into question the effectiveness of those programs in protecting human health and the environment. Many state regulatory CCW management programs do not include protections such as requirements for liners and groundwater monitoring.

To establish national standards intended to address risks associated with potential CCW mismanagement, on June 21, 2010, EPA proposed two regulatory options to manage the waste. The first would draw on EPA's existing authority to identify a waste as hazardous and regulate it under the waste management standards established under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The second option would establish regulations applicable to CCW disposal units under RCRA's Subtitle D solid waste management requirements. Under Subtitle D, EPA does not have the authority to implement or enforce its proposed requirements. Instead, EPA would rely on states or citizen suits to enforce the new standards.

Industry groups, environmental and citizen groups, state agency representatives, and some Members of Congress have expressed concern over EPA's proposal. The primary questions and concerns regarding the Subtitle C proposal relate to its ultimate impact on coal-producing states, energy prices, and CCW recycling opportunities. Concern about the Subtitle D proposal primarily relates to whether it would sufficiently protect human health and the environment, given EPA's limited authority to enforce it. Commenters have proposed various legislative options in response to these varied concerns. Some suggest Congress should designate CCW as hazardous waste under Subtitle C. Alternatively, others suggest prohibiting EPA from regulating the material under Subtitle C and/or providing EPA with the authority to develop criteria applicable to landfills and surface impoundments that receive CCW under Subtitle D. Congress might also consider a new subtitle under RCRA directing EPA to develop disposal facility criteria similar to those under Subtitle D, but providing EPA with federal enforcement authority similar to Subtitle C, without explicitly designating the material a hazardous waste.



Date of Report: July 26, 2010
Number of Pages: 22
Order Number: R41341
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