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Friday, June 22, 2012

Proposals to Amend RCRA: Analysis of Pending Legislation Applicable to the Management of Coal Combustion Residuals

Linda Luther
Analyst in Environmental Policy

On April 24, 2012, the House and Senate began the conference process to reconcile legislation passed in both houses that would extend authorization for Department of Transportation programs. Title V in the House-passed legislation (H.R. 4348), Highway and Infrastructure Safety Through the Protection of Coal Combustion Residual Recycling, would amend the Resource Conservation and Recovery Act (RCRA) to add Section 4011. Largely identical to the Coal Residuals Reuse and Management Act passed in the House (H.R. 2273) and introduced in the Senate (S. 1751), the proposed Section 4011 would create a state-based permit program for the management and disposal of coal combustion residuals (CCRs). 

Concern over CCR Management 

CCRs are the inorganic materials that remain after pulverized coal is burned for power production. Generally, more than 100 million tons of CCRs are generated annually in the United States, the majority of which is accumulated in landfills or surface impoundment ponds at individual power plants. The Environmental Protection Agency (EPA) has determined that accumulation in unlined units, particularly surface impoundments, poses a substantial risk of contaminant leaching (particularly selenium and arsenic) to surface and groundwater. EPA found that use of a composite liner largely eliminated that risk. While new units are likely to be built with liners, EPA has determined that the majority in use today are older and unlikely to have liners. 

Administration and Congressional Proposals to Manage CCRs 

CCR management is regulated by individual states, which EPA has found to be inconsistent in its requirements for protective measures (e.g., liners and groundwater monitoring systems). Concerns regarding the risks of improper management and inconsistent state regulations led EPA to propose national standards for CCR disposal. In June 2010, EPA released for public comment two regulatory options—one proposed under its existing authority to regulate hazardous wastes, under Subtitle C of RCRA, the other under its authority to promulgate standards applicable to “sanitary landfills,” under Subtitle D of RCRA. EPA is authorized to enforce its proposed Subtitle C standards, but could only encourage states to adopt and enforce the Subtitle D standards.

In contrast to EPA’s proposals, the proposed amendment to RCRA would create a state-based permit program for the management and disposal of CCRs. Established entirely in statute, Congress would create a program unique among environmental laws. That is, the permit program would be created with no directive to EPA to promulgate regulations applicable to the program or to CCR landfills and surface impoundments. Instead, existing regulations applicable to municipal solid waste (MSW) landfills and elements of EPA’s June 2010 proposal would apply to the program.

Stakeholders in favor of the legislative approach include industry groups concerned that implementing EPA’s Subtitle C option would stigmatize CCRs by labeling the materials “hazardous waste,” potentially reducing markets for reuse and recycling (e.g., as a component in concrete or roadbed materials). States support this approach, as it would allow them to regulate CCRs as they deem necessary. Stakeholders opposed to this approach argue that the flexibility allowed to states in deciding whether or when facilities may be required to obtain a permit, as well as the proposed amendment’s lack of federally enforceable standards applicable to CCR landfills and surface impoundments, would likely result in few changes to current state programs. 

Scope and Purpose of This Report 

This report provides background to understand the legislative proposals to amend Subtitle D of RCRA and identifies potential challenges to implementing the proposed permit program. Considering their influence on program implementation, the report discusses the regulatory standards on which the permit program would be based. In particular, it summarizes EPA’s existing (MSW) and proposed (CCR) standards relevant to the proposed CCR permit program. This report also summarizes provisions in the proposed Section 4011 of RCRA; identifies potential challenges to implementing a statutory permit program; and compares regulations applicable to MSW landfills to comparable elements of the proposed CCR permit program.

Date of Report: June 19, 2012
Number of Pages: 40
Order Number: R42570
Price: $29.95

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Wednesday, June 20, 2012

Cooling Water Intake Structures: Summary of EPA’s Proposed Rule

Claudia Copeland
Specialist in Resources and Environmental Policy

Thermoelectric generating plants and manufacturing facilities withdraw large volumes of water for production and, especially, to absorb heat from their industrial processes. Water withdrawals by power producers and manufacturers represent more than one-half of water withdrawn daily for various uses in the United States. Although water withdrawal is a necessity for these facilities, it also presents special problems for aquatic resources. In particular, the process of drawing surface water into the plant through cooling water intake structures (CWIS) can simultaneously pull in fish, shellfish, and tiny organisms, injuring or killing them. Congress enacted Section 316(b) of the Clean Water Act (CWA) specifically to address CWIS.

Regulatory efforts by the Environmental Protection Agency (EPA) to implement Section 316(b) have a long and complicated history over 35 years, including legal challenges at every step by industry groups and environmental advocates. Currently most new facilities are regulated under rules issued in 2001, while rules for existing facilities were challenged and remanded to EPA for revisions. In response to the remands, in March 2011 EPA proposed national requirements affecting approximately 1,150 existing electric powerplants and manufacturing facilities. EPA is under a court-ordered schedule to issue a final CWIS rule by July 27, 2012. Even before release, the proposed regulations were highly controversial among stakeholders and some Members of Congress. The issue for Congress has been whether a stringent and costly environmental mandate could jeopardize reliability of electricity supply in the United States. Many in industry feared, while environmental groups hoped, that EPA would require installation of technology called closed-cycle cooling that most effectively minimizes the adverse environmental impacts of CWIS, but also is the most costly technology option.

The EPA proposal declined to mandate closed-cycle cooling universally and instead favors a less costly, more flexible regulatory option. EPA’s recommended approach would essentially codify current CWIS permitting procedures for existing facilities, which are based on site-specific determinations and have been in place administratively for some time because of legal challenges to previous rules. EPA acknowledges that closed-cycle systems reduce the adverse effects of CWIS to a greater extent than other technologies, but in the proposed rule it rejected closed-cycle cooling as a uniform requirement at existing facilities. The agency based that conclusion on four factors: additional energy needed by electricity and manufacturing facilities to operate cooling equipment and adverse consequences to reliability of energy delivery (i.e., energy penalty), additional air pollutants that would be emitted because fossil-fueled facilities would need to burn more fuel as compensation for the energy penalty, land availability concerns in some locations, and limited remaining useful life of some facilities such that retrofit costs would not be justified.

Not surprisingly, stakeholder groups viewed the proposal differently. Environmental groups endorsed the parts of the rule to establish nationally uniform requirements, but criticized those allowing for site-specific determinations. Industry groups urged EPA to provide greater flexibility that would be more cost-effective. State permitting authorities were divided on modifying the rule to be more flexible. In June 2012, EPA said it is considering alternatives that reflect some recommendations of industry and utility groups and is asking for more public comment on these options. Whether the agency will be able to meet the current court-ordered schedule to issue a final rule by July 27 is uncertain.

Date of Report: June 5, 2012
Number of Pages: 29
Order Number: R41786
Price: $29.95

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Tuesday, June 19, 2012

Comprehensive Environmental Response, Compensation, and Liability Act: A Summary of Superfund Cleanup Authorities and Related Provisions of the Act

David M. Bearden
Specialist in Environmental Policy

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA; P.L. 96-510) in response to a growing desire for the federal government to ensure the cleanup of the nation’s most contaminated sites to protect the public from potential harm. The Superfund Amendments and Reauthorization Act of 1986 (P.L. 99-499, SARA) clarified the applicability of the statute’s requirements to federal facilities, and modified various response, liability, and enforcement provisions. Several other laws also have amended CERCLA for specific purposes, including relief from cleanup liability for certain categories of parties, and the authorization of federal assistance for the cleanup of abandoned or idled “brownfields” where the presence or perception of contamination may impede economic redevelopment.

CERCLA authorizes cleanup and enforcement actions to respond to actual or threatened releases of hazardous substances into the environment, but generally excludes releases of petroleum and certain other materials covered by other federal laws. Considering the limitation of federal resources to address the many contaminated sites across the United States, CERCLA directs the Environmental Protection Agency (EPA) to maintain a National Priorities List (NPL) to identify the most hazardous sites for the purpose of prioritizing cleanup actions. The states and the public may participate in federal cleanup decisions at NPL sites. The states primarily are responsible for pursuing the cleanup of sites not listed on the NPL, with the federal role at these sites limited mainly to addressing emergency situations.

CERCLA established a broad liability scheme that holds past and current owners and operators of facilities from which a release occurs financially responsible for cleanup costs, natural resource damages, and the costs of federal public health studies. At waste disposal sites, generators of the wastes and transporters of the wastes who selected the site for disposal also are liable under CERCLA. The liability of these “potentially responsible parties” (PRPs) has been interpreted by the courts to be strict, joint and several, and retroactive. At contaminated federal facilities, federal agencies are subject to liability under CERCLA as the owners and operators of those facilities on behalf of the United States. Federal agencies also may be liable in instances in which an agency generated or transported waste for disposal at a non-federal facility.

CERCLA established the Hazardous Substance Superfund Trust Fund to pay for the cleanup of sites where the PRPs cannot be found or cannot pay. A combination of special taxes on industry and general taxpayer revenues originally financed the Superfund Trust Fund, but the authority to collect the industry taxes expired on December 31, 1995. Over time, Congress increased the contribution of general revenues to make up for the shortfall from the expired industry taxes. General revenues now provide most of the funding for the trust fund, but other monies continue to contribute some revenues (i.e., cost-recoveries from PRPs, fines and penalties for violations of cleanup requirements, and interest on the trust fund balance). The availability of these trust fund monies under the Superfund program is subject to appropriations by Congress. Private settlement funds deposited into site-specific Special Accounts within the Superfund Trust Fund also are available to EPA, but are not subject to discretionary appropriations.

Considering the liability of the federal government at its own facilities, the cleanup of federal facilities is not funded with Superfund Trust Fund monies under the Superfund program, but with other federal monies appropriated to the agencies responsible for administering the facilities. However, EPA and the states remain responsible for overseeing and enforcing the implementation of CERCLA at federal facilities to ensure that applicable cleanup requirements are met.

Date of Report: June 14, 2012
Number of Pages: 44
Order Number: R41039
Price: $29.95

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Tuesday, June 12, 2012

Water Quality Issues in the 112th Congress: Oversight and Implementation

Claudia Copeland
Specialist in Resources and Environmental Policy

Much progress has been made in achieving the ambitious goals that Congress established nearly 40 years ago in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. However, 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 has been the role of the federal government in assisting 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, the House passed H.R. 1262 to reauthorize the CWA’s State Revolving Fund (SRF) program to finance wastewater infrastructure, and a companion bill, S. 1005, was approved by the Senate Environment and Public Works Committee. No legislation was enacted, and reauthorization legislation has been introduced again in the 112th Congress (H.R. 3145).

Programs that regulate activities in wetlands also have been of interest, 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 have 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 111th Congress, the Senate Environment and Public Works Committee approved a bill that sought to clarify but not expand the CWA’s geographic scope (S. 787). Because some stakeholders believe that the bills would expand federal jurisdiction—not simply clarify it—the bills were controversial, and no legislation was enacted. In contrast to approaches reflected in earlier proposals, bills in the 112th Congress would narrow the scope of the act’s jurisdiction (S. 2122/H.R. 4304).

These issues have drawn interest in the 112th Congress, as well. In addition, a number of other CWA issues have been the subject of congressional oversight and legislation, with some legislators highly critical of recent regulatory initiatives and others more supportive of EPA’s actions. Among the topics of interest are environmental and economic impacts of Chesapeake Bay restoration efforts, federal promulgation of water quality standards in Florida, regulation of surface coal mining activities in Appalachia, and other CWA regulatory actions. Congressional interest in several of these issues has been reflected in debate over policy provisions of legislation providing FY2012 appropriations for EPA (P.L. 112-74).

Date of Report: May 30, 2012
Number of Pages: 26
Order Number: R41594
Price: $29.95

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Funding for Federal Climate Change Activities, FY2008 to FY2012

Jane A. Leggett
Specialist in Environmental and Energy Policy

In response to your request, this memorandum compiles information on federal funding from FY2008 through FY2012 for climate change activities of various departments and agencies, as presented by the Office of Management and Budget (OMB) and by the individual departments and agencies where noted. CRS deferred to these OMB and department and agency sources, as comparable comprehensive information on funding allocated for climate change activities across departments and agencies is not broken out in all cases for each relevant program or activity in annual appropriations bills and the accompanying committee reports.

Some of the OMB or agency sources are incomplete or may report inconsistent data, as explained below. As such, the amounts in the following tables likely represent an underestimate of federal funding for the period, perhaps on the order of tens of millions of dollars (i.e., not billions). Information is not available for all programs for all years, as explained below.

In sum, OMB and agencies have identified approximately $70 billion available to federal agencies from FY2008 through FY2012 for climate change activities. The large majority – about 80% -- has funded technology development and deployment, mostly through the Department of Energy (DOE). More than one third of the identified funding was enacted in the American Recovery and Reinvestment Act of 2009 (P.L. 111-5). Tables in the memorandum detail funding by agency in terms of budget authority. 1 Funding information is provided for each of the four major federal initiatives to address climate change:
  1. the Global Change Research Program;
  2. the Climate Change Technology Program; 
  3. the Global Climate Change Initiative; and 
  4. Adaptation. 

A final table provides the sums by agencies across all four initiatives.

CRS has been unable to find complete data on climate change budget authority, particular for FY2012, and also for recent years of the Climate Change Technology Program. Hence, the data compiled in the following tables likely represent the minimum of budget authority for these programs.

Additional caveats regarding the data presented here include:

  • Minor inconsistencies sometimes exist in alternative reports on funding, perhaps due to rescissions or reprogramming, or because a program may sometimes be cast as climate change-related and not in other contexts.
  • These initiatives are “roll-ups” of programs and funding in each agency, and information on some programs are available only to the degree that the agency has reported funding to OMB or Congress.
  • Some activities, particularly to consider or address potential impacts of climate change on federal programs or assets, likely existed prior to their being identified as climate change related, so that funding may have occurred prior to being listed in these tables or in addition to activities listed in these tables.

Other caveats about comparing or examining possible trends in funding are described in more detail in CRS Report RL33817, Climate Change: Federal Program Funding and Tax Incentives. That report contains older information on general objectives and activities of the climate change initiatives.

Date of Report: April 26, 2012
Number of Pages: 7
Order Number: M-042612-B

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Thursday, June 7, 2012

Mountaintop Mining: Background on Current Controversies

Claudia Copeland
Specialist in Resources and Environmental Policy

Mountaintop removal mining involves removing the top of a mountain in order to recover the coal seams contained there. This practice occurs in six Appalachian states (Kentucky, West Virginia, Virginia, Tennessee, Pennsylvania, and Ohio). It creates an immense quantity of excess spoil (dirt and rock that previously composed the mountaintop), which is typically placed in valley fills on the sides of the former mountains, burying streams that flow through the valleys. Mountaintop mining is regulated under several laws, including the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA).

Critics say that, as a result of valley fills from mountaintop mining, stream water quality and the aquatic and wildlife habitat that streams support are destroyed by tons of rocks and dirt. The mining industry argues that mountaintop mining is essential to conducting surface coal mining in the Appalachian region and that it would not be economically feasible there if operators were barred from using valleys for the disposal of mining overburden. Critics have used litigation to challenge the practice. In a number of cases discussed in this report, environmental groups have been successful at the federal district court level in challenging issuance of permits for mountaintop mining projects, but each has been later overturned on appeal. Nonetheless, the criticisms also have prompted some regulatory changes, also discussed here.

In June 2009, officials of the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the Department of the Interior signed a Memorandum of Understanding outlining a series of administrative actions under these laws to reduce the harmful environmental impacts of mountaintop mining and surface coal mining in Appalachia. The plan includes a series of near-term and longer-term actions that emphasize specific steps, improved coordination, and greater transparency of decisions. The actions are being implemented through regulatory proposals, guidance documents, and review of applications for permits to authorize surface coal mining operations in Appalachia. Viewed broadly, the Administration’s combined actions on mountaintop mining displease both industry and environmental advocates. The additional scrutiny of permits and more stringent requirements have angered the coal industry and many of its supporters. Controversy also was generated by EPA’s January 2011 veto of a CWA permit that had been issued by the Corps for a surface coal mining project in West Virginia. At the same time, while environmental groups support EPA’s steps to restrict the practice, many favor tougher requirements or even total rejection of mountaintop mining in Appalachia. Federal courts have recently rejected some of the Administration’s actions, including overturning EPA’s veto of the West Virginia mine permit. The government is appealing that ruling.

This report provides background on regulatory requirements, controversies and legal challenges to mountaintop mining, and recent Administration actions. Congressional interest in these issues also is discussed, including legislation in the 111th Congress seeking to restrict the practice of mountaintop mining and other legislation intended to block the Obama Administration’s regulatory actions. Attention to EPA’s veto of the West Virginia mining permit and other federal agency actions has increased in the 112th Congress. Several bills have been introduced to clarify or restrict EPA’s authority to veto CWA permits issued by the Corps (H.R. 457/S. 272; H.R. 517; H.R. 960/S. 468; and H.R. 2018, which the House passed in July 2011).

Date of Report: May 30, 2012
Number of Pages: 20
Order Number: RS21421
Price: $29.95

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