Regulation of Fertilizers: Ammonium Nitrate and Anhydrous Ammonia

Dana A. Shea
Specialist in Science and Technology Policy

Linda-Jo Schierow
Specialist in Environmental Policy

Scott Szymendera
Analyst in Disability Policy

The explosion on April 17, 2013, at the West Fertilizer Company fertilizer distribution facility in West, TX, has led to questions about the oversight and regulation of agricultural fertilizer. Facilities holding chemicals must comply with regulations attempting to ensure occupational safety, environmental protection, and homeland security. In addition to federal regulation requiring reporting and planning for ammonium nitrate and anhydrous ammonia, most state and some local governments have laws and regulations regarding the handling of either or both of these chemicals.

The West Fertilizer Company possessed a variety of agricultural chemicals at its retail facility, but policy interest has focused on two chemicals: ammonium nitrate and anhydrous ammonia. Ammonium nitrate is a solid that is primarily used as a fertilizer whose use generally occurs without incident. In combination with a fuel source and certain conditions, such as added heat or shock, confinement, or contamination, ammonium nitrate can pose an explosion hazard. Such accidents have rarely occurred, but have historically had high impacts. For example, the ammonium nitrate explosion in 1947 in Texas City, TX, where two ships carrying ammonium nitrate caught fire and exploded, destroyed the entire dock area, including numerous oil tanks, dwellings, and business buildings. The bomb used in 1995 to attack the Murrah Federal Building contained ammonium nitrate as a component of its explosives.

Anhydrous ammonia has a variety of uses, including as an agricultural fertilizer. Many agricultural retailers store and use anhydrous ammonia. In contrast with ammonium nitrate, anhydrous ammonia is a gas more generally viewed as a threat from its inhalation toxicity. It is regulated to prevent release of the chemical into the atmosphere where it might travel as a cloud and impact workers and the surrounding environment.

Various federal, state, and local agencies collect mission-relevant information about chemical holdings. The West facility had reportedly not complied with all relevant and applicable regulatory requirements. For example, the facility reportedly had not contacted the Department of Homeland Security (DHS), which should have received information about any ammonium nitrate or anhydrous ammonia stored at the facility. The extent to which agencies shared relevant information about chemical holdings in order to enable effective regulatory oversight is still unresolved.

As congressional policymakers consider the ramifications of the explosion in West, TX, they may face several policy issues. These policy issues include the:

• challenges arising from relying on reporting of chemical inventories by regulated facilities; 
• potential for omission and duplication in existing regulatory reporting; 
• long intervals between inspection at many such facilities; 
• ability of federal, state, and local government agencies to share information effectively among themselves; and 
• public and first-responder access to regulatory information.

Date of Report: May 14, 2013
Number of Pages: 20
Order Number: R43070
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Clean Air Issues in the 113th Congress: An Overview

James E. McCarthy
Specialist in Environmental Policy

Oversight of EPA regulatory actions is expected to be the main focus of interest as the 113th Congress considers air quality issues.

Air quality has improved substantially in the United States in the 40 years of the Environmental Protection Agency’s Clean Air Act regulation. According to the agency’s science advisers and others, however, more needs to be done to protect public health and the environment from the effects of air pollution. Thus, the agency continues to promulgate regulations using authority given it by Congress in amendments to the Clean Air Act more than 20 years ago. Members of Congress from both parties have raised questions about the cost-effectiveness of some of these regulations and/or whether the agency has exceeded its statutory authority in promulgating them. Others in Congress have supported EPA, noting that the Clean Air Act, often affirmed in court decisions, has authorized or required the agency’s actions.

EPA’s regulatory actions on greenhouse gas (GHG) emissions have been one focus of congressional interest. Although the Obama Administration has consistently said that it would prefer that Congress pass new legislation to address climate change, such legislation now appears unlikely. Instead, over the last four years, EPA has developed GHG emission standards using its existing Clean Air Act authority. Relying on a finding that GHGs endanger public health and welfare, the agency promulgated GHG emission standards for cars and light trucks on May 7, 2010, and again on October 15, 2012, and for larger trucks on September 15, 2011. The implementation of these standards, in turn, triggered permitting and Best Available Control Technology requirements for new major stationary sources of GHGs (power plants, manufacturing facilities, etc.).

It is the triggering of standards for stationary sources that has raised the most concern in Congress. A proposal to limit carbon dioxide emissions from new power plants is the focus of attention currently, but other sources (refineries, cement plants, etc.) could be subject to GHG emission controls under the same statutory authority. Legislation has been considered in both the House and Senate aimed at preventing EPA from implementing these requirements. The House passed several of these bills in the 112th Congress, but none of them passed the Senate.

Besides addressing climate change, EPA has taken action on a number of other air pollution regulations, generally in response to court actions remanding previous rules. Remanded rules included the Clean Air Interstate Rule (CAIR) and the Clean Air Mercury Rule—rules designed to control the long-range transport of sulfur dioxide, nitrogen oxides, and mercury from power plants through cap-and-trade programs. Other remanded rules include hazardous air pollutant standards for boilers and cement kilns (standards referred to as “MACT” standards). EPA has addressed the court remands through new regulations, but many in Congress viewed these regulations as overly stringent. In the 112th Congress, the House passed four bills (H.R. 2250, H.R. 2401, H.R. 2681, and H.R. 3409) to delay or revoke the new standards and change the statutory requirements for their replacements. None of these passed the Senate, however. EPA also recently proposed a controversial rule to lower the sulfur content of gasoline, in conjunction with tighter (“Tier3”) standards for motor vehicle emissions.

In addition to these rules, EPA is reviewing ambient air quality standards (NAAQS) for ozone and other widespread air pollutants. An ozone NAAQS proposal is expected by the end of 2013. NAAQS serve as EPA’s definition of clean air, and drive a range of regulatory controls. EPA’s review process for the NAAQS, mandated at five-year intervals by the Clean Air Act, has also faced opposition in Congress. As passed by the House in the 112th Congress, H.R. 2401 and H.R. 3409 would have amended the Clean Air Act to require EPA to consider feasibility and cost in setting NAAQS, reversing a unanimous 2001 Supreme Court decision that the law requires standards based on health considerations alone. The Senate did not pass either measure.

Date of Report: May 6, 2013
Number of Pages: 25
Order Number: R42895
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EPA Regulations: Too Much, Too Little, or On Track?

James E. McCarthy Specialist in Environmental Policy 
Claudia Copeland Specialist in Resources and Environmental Policy

Since Barack Obama was sworn in as President in 2009, the Environmental Protection Agency (EPA) has proposed and promulgated numerous regulations implementing the pollution control statutes enacted by Congress. Critics have reacted strongly. Many, both within Congress and outside of it, have accused the agency of reaching beyond the authority given it by Congress and ignoring or underestimating the costs and economic impacts of proposed and promulgated rules. The House conducted vigorous oversight of the agency in the 112th Congress, and approved several bills that would overturn specific regulations or limit the agency’s authority. Similar action may occur in the 113th. Particular attention is being paid to the Clean Air Act, under which EPA has moved forward with the first federal controls on emissions of greenhouse gases and also addressed emissions of conventional pollutants from a number of industries; congressional scrutiny has focused as well on other environmental statutes and regulations implemented by EPA.

Environmental groups and others disagree that the agency has overreached, and EPA states that critics’ focus on the cost of controls obscures the benefits of new regulations, which, it estimates, far exceed the costs. It maintains that pollution control is an important source of economic activity, exports, and American jobs, as well. Further, the agency and its supporters say that EPA is carrying out the mandates detailed by Congress in the federal environmental statutes.

This report provides background information on recent EPA regulatory activity to help address these issues. It examines 46 major or controversial regulatory actions taken by or under development at EPA since January 2009, providing details on the regulatory action itself, presenting an estimated timeline for completion of the rule (including identification of related court or statutory deadlines), and, in general, providing EPA’s estimates of costs and benefits, where available. The report includes tables that show which rules have been finalized and which remain under development.

The report also discusses factors that affect the timeframe in which regulations take effect, including statutory and judicial deadlines, public comment periods, judicial review, and permitting procedures, the net results of which are that existing facilities are likely to have several years before being required to comply with most of the regulatory actions under discussion. Unable to account for such factors, which will vary from case to case, timelines that show dates for proposal and promulgation of EPA standards effectively underestimate the complexities of the regulatory process and overstate the near-term impact of many of the regulatory actions.


Date of Report: April 5, 2013
Number of Pages: 47
Order Number: R41561
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Pesticide Use and Water Quality: Are the Laws Complementary or in Conflict?

Claudia Copeland
Specialist in Resources and Environmental Policy

This report provides background on the emerging conflict over interpretation and implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA). For the more than 30 years since they were enacted, there had been little apparent conflict between them. But their relationship has recently been challenged in several arenas, including the federal courts and regulatory proceedings of the Environmental Protection Agency (EPA). In this report, a brief discussion of the two laws is followed by a review of the major litigation of interest. EPA’s efforts to clarify its policy in this area are discussed, including a regulation issued in 2006 that was subsequently vacated by a federal court, as well as possible options for EPA and Congress to address the issues further.

FIFRA governs the labeling, distribution, sale, and use of pesticides, including insecticides and herbicides. Its objective is to protect human health and the environment from unreasonable adverse effects of pesticides. It establishes a nationally uniform labeling system requiring the registration of all pesticides sold in the United States, and requiring users to comply with the national label. The CWA creates a comprehensive regulatory scheme to control the discharge of pollutants into the nation’s waters; the discharge of pollutants without a permit violates the act.

Several federal court cases testing the relationship between FIFRA and the CWA have drawn attention since 2001. In two cases concerning pesticide applications by agriculture and natural resources managers, the U.S. Ninth Circuit Court of Appeals held that CWA permits are required for at least some discharges of FIFRA-regulated pesticides over, into, or near U.S. waters. It held in a third case that no permit was required for the specific pesticide in question. In 2010, the U.S. Second Circuit Court of Appeals ruled that a CWA discharge permit for mosquito control activities was not required before April 2011.

Several of the rulings alarmed a range of stakeholders who fear that requiring CWA permits for pesticide application activities would present significant costs, operational difficulties, and delays. Pressed to clarify its long-standing principle that CWA permits are not required for using FIFRA-approved products, EPA in 2006 issued a rule to formalize that principle in regulations. Environmental activists strongly opposed EPA’s actions, arguing that FIFRA does not protect water quality from harmful pollutant discharges, as the CWA is intended to do. Other stakeholders, such as pesticide applicators, endorsed the rule. The rule was challenged, and in 2009 a federal court vacated the regulation. The federal government asked the court to stay the order vacating the exemption for two years, to provide time for working with states to develop a general permit for pesticide applications covered by the decision. The court denied the request for rehearing and granted the requested delay, which was extended until October 31, 2011, when EPA issued the permit. Under the final permit, pesticide applicators were covered automatically for discharges before January 12, 2012. However, despite the agency’s efforts to minimize regulatory burdens and cost, the permit is controversial.

Some believe that the controversy will only be resolved by congressional action to clarify the intersecting scope of the Clean Water Act and FIFRA. In the 112th Congress, the House has passed legislation intended to nullify the 2009 federal court ruling (H.R. 872). Similar legislation also has been introduced in the 113th Congress (H.R. 935, S. 175, and S. 802). .


Date of Report: April 30, 2013
Number of Pages: 19
Order Number: RL32884
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Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Kristina Alexander
Legislative Attorney

For decades biologists, water users, and lawmakers (both federal and state) have attempted to craft a system that meets the needs of California water users while ensuring sufficient usable water for fish. Under California’s hybrid system of appropriative water rights, users are issued permits for water diverted from rivers and streams regardless of the users’ proximity to the source of water. The state of California has issued permits to the Bureau of Reclamation (the Bureau) to store, divert, and deliver water from the federal Central Valley Project (CVP), which consists of facilities on the Sacramento, Stanislaus, and San Joaquin Rivers, including the Shasta, New Melones, and Friant Dams. The Bureau diverts CVP and State Water Project (SWP) water from the southern portion of the Sacramento-San Joaquin Delta to the southern part of California. Although the amount of water available from the CVP/SWP is relatively constant, notwithstanding periods of drought and periods of excessive rain (e.g., El Niño years), the amount of water diverted from major rivers and their tributaries has increased over time, and fish populations have declined.

In the CVP/SWP watershed, the Endangered Species Act (ESA) protects multiple species or populations of fish, including the endangered Sacramento River winter-run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, the threatened Central Valley steelhead, the threatened Southern population of North American green sturgeon, and the threatened delta smelt. The ESA requires the Bureau to consult with the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) (together, the Services) to see whether planned actions are likely to jeopardize a listed species or damage critical habitat. (FWS is consulted for impacts related to the Delta smelt. NMFS is consulted on potential impacts to salmon.) The consultation process concludes with the Service issuing a biological opinion (BiOp) along with an incidental take statement, allowing the federal action to proceed without prosecution for incidental harm to listed species. If the Service finds the action is likely to jeopardize a listed species, a jeopardy BiOp is issued, which will include reasonable and prudent alternatives (RPAs) to the planned action to avoid extinction of a species. Otherwise a no-jeopardy BiOp is issued.

In 2004, the Long-Term Central Valley Project and State Water Project Operations Criteria and Plan (OCAP) was issued by California and the Bureau to meet the system’s water needs. Pursuant to OCAP, the Services issued both jeopardy and no-jeopardy opinions. Lawsuits challenged both types of BiOp. If jeopardy was found, water users argued that the BiOp failed to consider impacts on junior water users sufficiently. If no jeopardy was found, environmentalists and fishermen argued that the BiOp did not fully consider the extent of the harm to the species. Judge Oliver W. Wanger of the federal court for the Eastern District of California has found the BiOps or the RPAs to be inadequate for various reasons, including failing to comply with the National Environmental Policy Act (NEPA). (He retired from the bench at the end of September 2011.) Some of those decisions have since been appealed to the Ninth Circuit. New biological opinions are not due until December 2014 (FWS) and February 2017 (NMFS), although those deadlines could be extended an additional two years each, according to a court order of April 2013. This report summarizes the proceedings on the BiOps issued since 2004.


Date of Report: May 3, 2013
Number of Pages: 12
Order Number: R41876
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