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Tuesday, May 31, 2011

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, through FY2012. In March 2011, EPA reported the completion of 1,517 registration and reregistration decisions subject to PRIA during FY2010, for a total of 9,037 since the enactment of PRIA 1 in 2004. For FY2010, EPA reported expending $18.2 million of the $25.6 million received in the form of new registration fees collected in FY2010 ($18.6 million in net receipts) and carried forward from FY2009 ($7.0 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 FY2011. The FY2012 President’s budget request submitted to Congress February 1, 2011, included similar proposals to provide for the collection of additional pesticide fees. To date, there has been no specific legislation introduced regarding these current proposals.



Date of Report: May 13, 2011
Number of Pages: 31
Order Number: RL32218
Price: $29.95

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Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance


Robert Meltz
Legislative Attorney

Congressional inaction on climate change has led various entities to pursue climate change measures off Capitol Hill. Either in hopes of realizing substantive measures or to pressure Congress to act, such entities have looked to international forums, treaty negotiations, Environmental Protection Agency (EPA) action under the Clean Air Act, state and regional efforts, and—the topic here—lawsuits seeking to establish climate change impacts as a common law nuisance. If congressional efforts to block or delay EPA from addressing greenhouse gas (GHG) emissions are successful, that likely will give added importance to such nuisance suits. As background, a private nuisance is a substantial and unreasonable invasion of another’s interest in the private use and enjoyment of land, without involving trespass; a public nuisance is an unreasonable interference with a right common to the general public.

In litigating a climate-change/nuisance suit, several issues arise at the outset and, if resolved against the plaintiff, prevent a claim from proceeding. First, there is the question whether the federal common law of nuisance has been displaced yet by EPA regulation of GHG emissions under the Clean Air Act. A second threshold issue is standing to sue, which asks whether a given party is an appropriate one to invoke the jurisdiction of a federal court. As developed by the Supreme Court, the Constitution requires that for a plaintiff to have standing in federal court, he/she must show injury in fact, that the injury was caused by the defendant, and that the remedy sought likely will ameliorate the injury. Suits seeking relief based on climate change claims have run into difficulty with one or more of these requirements. A third threshold issue is the political question doctrine, which is designed to restrain the judiciary from inappropriately interfering in matters reposed in the other branches of government. For example, the defendants in one case argued that one indicium of a political question—the Constitution’s textual commitment of the issue to the executive or legislative branch—is displayed by climate change because using a nuisance case to reduce U.S. CO
2 emissions undermines the President’s constitutional authority to manage foreign relations—in particular, to induce other nations to reduce their CO2 emissions.

There are five common law/nuisance suits addressing climate change now or formerly active. Of the three no longer active, none were successful. Of the two still-active cases, one has recently leaped to center stage because the Supreme Court agreed to hear it. In Connecticut v. American Electric Power Co., Inc., eight states sued five utility companies alleged to be emitting the most GHGs in the nation through their coal-fired electric power plants. Following a Second Circuit decision, the Supreme Court agreed on December 6, 2010, to resolve threshold issues in this case.

The other active case is Native Village of Kivalina v. ExxonMobil Corp., in which a coastal Eskimo village sued 24 oil and energy companies. Plaintiffs claim that the large quantities of GHGs defendants emit contribute to climate change, which in turn has caused coastal ice to melt, which in turn has caused coastal erosion that will require relocating the village. This case is pending before the Ninth Circuit, where it has been stayed pending the Supreme Court’s ruling in Connecticut.

In early May 2011, the nuisance cases above were joined by 10 lawsuits (with more promised) seeking to address climate change by an entirely different common law theory: public trust doctrine. Given their recent filing, there have been no developments in these cases as yet.



Date of Report: May 9, 2011
Number of Pages: 15
Order Number: R41496
Price: $29.95

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Deepwater Horizon Oil Spill: Highlighted Actions and Issues


Curry L. Hagerty
Specialist in Energy and Natural Resources Policy

Jonathan L. Ramseur
Specialist in Environmental Policy


This report highlights actions taken and issues raised as a result of the April 20, 2010, explosion on the Deepwater Horizon offshore drilling rig, and the resulting oil spill in the Gulf of Mexico. Readers can access more extensive discussions in various CRS reports, identified at the end of this report.

Members in the 112
th Congress continue to express concerns regarding various oil spill-related policy matters. At least three committees in both the House and the Senate have held hearings on issues associated with the Deepwater Horizon oil spill. Members have introduced multiple proposals that would address various issues, including: 
  • the regulatory regime for outer continental shelf (OCS) oil exploration and development activities; 
  • the liability and compensation framework created by the 1990 Oil Pollution Act; 
  • technological challenges involved with deepwater activities; 
  • response activities (e.g., the use of chemical dispersants) and decision-making. 
However, some argue that, in response to the Deepwater Horizon incident, the Administration has adopted less than optimal policies toward offshore oil exploration and development. Expressing this viewpoint, some Members have offered proposals that seek to spur offshore oil exploration and development. In recent days, the House passed three such bills: H.R. 1230 (May 5, 2011), H.R. 1229 (May 11, 2011), and H.R. 1231 (May 12, 2011).

Future congressional activity may be influenced by several factors, including conditions in the Gulf region, independent inquiries, judicial actions, and the availability of data for further study.

Multiple executive branch agencies continue to respond to the incident within the framework of the National Contingency Plan. For example, the U.S. Coast Guard plays a key role in response efforts, because the spill occurred in the coastal zone. In addition, the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE), formerly known as the Minerals Management Service (MMS), initiated internal procedures for safety inspections and other regulatory functions for offshore operations.

As a responsible party for the spill, BP worked to control the well and the spill and continues to perform cleanup measures at the direction of the federal government. According to BP’s recent financial statements, the total costs of the 2010 Gulf spill are projected to dwarf those of the Exxon Valdez. In its 2010 financial statement, BP estimated the combined oil spill costs— cleanup, natural resource and economic damages, potential Clean Water Act (CWA) penalties, and other obligations—will be approximately $41 billion.



Date of Report: May 13, 2011
Number of Pages: 11
Order Number: R41407
Price: $29.95

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Friday, May 27, 2011

EPA’s Proposal to Regulate 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 approximately 135 million tons were generated in 2009. 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. That risk is largely eliminated 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 actual surface and groundwater contamination when CCW was deposited into unlined disposal units or used as construction fill.

CCW disposal is essentially exempt from federal regulation. Instead, it is regulated in accordance with individual state requirements. Inconsistencies among state regulatory programs were identified by EPA in a May 2000 regulatory determination as one reason that national standards to regulate CCW were needed. More recently, EPA called into question the effectiveness of some state regulatory programs in protecting human health and the environment. For example, EPA cited state survey data that showed that over 60% of states do not require liners or groundwater monitoring for surface impoundments (the disposal units with the highest potential for contaminant spread).

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 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.

The proposal generated comment from industry groups, environmental and citizen groups, state agency representatives, individual citizens, and some Members of Congress. Concerns regarding the Subtitle C proposal relate to its ultimate impact on energy prices, state program implementation costs, 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 the varied concerns over EPA’s existing regulatory options. Suggested legislative options include an explicit directive to EPA to regulate or prohibit CCW regulation under Subtitle C; expansion of EPA’s authority to regulate CCW under Subtitle D; or creation of a new subtitle under RCRA that requires EPA to develop an entirely new set of disposal criteria specific to CCW management. To date, two bills (H.R. 1391 and H.R. 1405) have been proposed that would prohibit EPA from regulating CCW under Subtitle C.



Date of Report: May 20, 2011
Number of Pages: 26
Order Number: R41341
Price: $29.95

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Thursday, May 26, 2011

Persistent Organic Pollutants (POPs): Fact Sheet on Three International Agreements


Linda-Jo Schierow
Specialist in Environmental Policy

Persistent organic pollutants (POPs) are chemicals that do not break down easily in the environment, tend to accumulate as they move up the food chain, and may be harmful to people and wildlife. Between 1998 and 2001, the United States signed two international treaties and one executive agreement to reduce the production and use of POPs and to regulate the trade and disposal of them. President Bush signed and submitted the two treaties to the Senate for advice and consent. If the Senate consents by a two-thirds majority, and if Congress passes legislation that would be needed to implement the treaties and the executive agreement in the United States, then the treaties could be ratified and the agreements would become binding U.S. law. Two U.S. statutes are inconsistent with the agreements: the Toxic Substances Control Act (TSCA), which governs production and use of chemicals in U.S. commerce, and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which regulates the sale and use of pesticides within the United States. Proposals to amend these statutes were considered but not enacted in the 107th, 108th, 109th, and 111th Congresses. S. 847 in the 112th Congress would revise TSCA to permit implementation of the agreement, but treaty implementation is one relatively small provision in a bill that would comprehensively amend TSCA.


Date of Report: May 16, 2011
Number of Pages: 4
Order Number: RS22379
Price: $29.95

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