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Monday, July 29, 2013

Proposed Reform of the Toxic Substances Control Act (TSCA) in the 113th Congress: S. 1009 Compared with S. 696 and Current Law

Linda-Jo Schierow
Specialist in Environmental Policy

Thirty-seven years of experience implementing and enforcing the Toxic Substances Control Act (TSCA) since its enactment have demonstrated the strengths and weaknesses of the law and led many to propose legislative changes to TSCA’s core provisions. The Safe Chemicals Act (S. 696) and the Chemical Safety Improvement Act (S. 1009) introduced in the 113
th Congress would amend TSCA Title I. This CRS report compares key provisions of S. 696 and S. 1009 with current law (15 U.S.C. 2601 et seq.). 

Existing Law 

TSCA as enacted authorizes the U.S. Environmental Protection Agency (EPA) to require manufacturers to develop data about chemical toxicity and exposure if EPA determines that a chemical may pose an unreasonable risk, or if chemical exposure is expected to be substantial. TSCA allows a chemical to enter and remain in commerce unless EPA can show that it poses “an unreasonable risk of injury to health or the environment.” EPA then must regulate to control unreasonable risk, but only to the extent necessary using the “least burdensome” means of available control. This TSCA standard has been interpreted to require cost-benefit balancing. The current law preempts state and local laws regarding chemicals specifically regulated by EPA. 

Proposed Legislation 

S. 696 would amend TSCA to require chemical manufacturers and processors to submit specified information about the toxicity and usage of chemicals in commerce to EPA. The information would be used by EPA to determine whether a chemical would meet the safety standard of “a reasonable certainty of no harm from aggregate exposure,” given the imposition of any needed restrictions on manufacture, processing, distribution, use, or disposal. S. 696 would prohibit uses of evaluated chemical substances unless they were determined by EPA to meet the safety standard. S. 696 would increase public access to information about EPA’s decisions and to some information about chemicals that currently is treated as confidential business information. S. 696 would rarely preempt state and local laws.

S. 1009 would authorize EPA to require manufacturers to develop new information if EPA can show need in the context of an evaluative framework for chemical risk assessment and management. The bill would require EPA to screen all chemicals in commerce and assign each to one of three categories:

• high priority for risk assessment,

• low priority for risk assessment, or

• in need of additional information.

S. 1009 would require EPA regulation, by rule or order, ensuring “no unreasonable risk of harm from exposure” to a chemical under the intended conditions of use. S. 1009 would preempt new state and local laws for chemicals identified as high or low priority.

Both Senate bills would evaluate the existing inventory of chemicals in U.S. commerce since 1976 to allow prioritization of the estimated 9,000 chemicals currently produced and used in the

United States. In addition, both bills would explicitly require manufacturers to substantiate some requests for protection of confidential business information from public disclosure.

S. 696 (but not S. 1009) also would add a new section to TSCA to allow U.S. implementation of three international agreements. S. 1009 would amend an existing section of TSCA to allow implementation of one treaty. Other provisions included in S. 696 would authorize EPA to support research in “green” engineering and chemistry, promote alternatives to toxicity testing on animals, encourage research on children’s environmental health, require biomonitoring of pregnant women and infants, require EPA to identify “hot spots” where residents are exposed disproportionately to pollution, and direct EPA to develop strategies for reducing their risks.

Key provisions of S. 696 and S. 1009 are compared with current law in Tables 1 through 6 of this CRS report.

Date of Report: July 10, 2013
Number of Pages: 85
Order Number: R43136
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Friday, July 26, 2013

Clean Air Issues in the 113th Congress: An Overview

James E. McCarthy
Specialist in Environmental Policy

As the 113
th Congress continues consideration of air quality issues, oversight of Environmental Protection Agency (EPA) regulatory actions is expected to remain the main focus. Of particular interest are EPA’s Clean Air Act regulations on emissions of greenhouse gases and revision of the ambient air quality standards for ozone. President Obama’s June 25 announcement of initiatives to address climate change has sparked renewed interest in the former, and EPA’s expected proposal of new ozone standards by the end of the year is stimulating interest in the latter.

Air quality has improved substantially in the United States in the 40 years of EPA’s Clean Air Act (CAA) 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 CAA amendments 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 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 CAA 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. Also, on June 25, the President directed EPA to develop standards for existing power plants by June 2015. Legislation has been considered in both the House and Senate aimed at preventing EPA from implementing such requirements. The House passed several of these bills in the 112
th 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 included hazardous air pollutant standards for boilers and cement kilns. 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

Date of Report: July 15, 2013
Number of Pages: 25
Order Number: R42895
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Green Infrastructure and Issues in Managing Urban Stormwater

Claudia Copeland
Specialist in Resources and Environmental Policy

For decades, stormwater, or runoff, was considered largely a problem of excess rainwater or snowmelt impacting communities. Prevailing engineering practices were to move stormwater away from cities as rapidly as possible to avoid potential damages from flooding. More recently, these practices have evolved and come to recognize stormwater as a resource that, managed properly within communities, has multiple benefits.

Stormwater problems occur because rainwater that once soaked into the ground now runs off hard surfaces like rooftops, parking lots, and streets in excessive amounts. This runoff flows into storm drains and ultimately into lakes and streams, carrying pollutants that are harmful to aquatic life and public health. Traditional approaches to managing urban stormwater have utilized so-called “gray infrastructure,” including pipes, gutters, ditches, and storm sewers. More recently, interest has grown in “green infrastructure” technologies and practices in place of or in combination with gray infrastructure. Green infrastructure systems use or mimic natural processes to infiltrate, evapotranspire, or reuse stormwater runoff on the site where it is generated. These practices keep rainwater out of the sewer system, thus preventing sewer overflows and also reducing the amount of untreated runoff discharged to surface waters.

Cities’ adoption of green technologies and practices has increased, motivated by several factors. One motivation is environmental and resource benefits. Advocates, including environmental groups, landscape architects, and urban planners, have drawn attention to these practices. But an equally important motivation, perhaps larger than environmental benefits, is cost-saving opportunities for cities that face enormous costs of stormwater infrastructure projects to meet requirements of the Clean Water Act. Other potential benefits include reduced flood damages, improved air quality, and improved urban aesthetics. At the same time, barriers to implementing green infrastructure include lack of information on performance and cost-effectiveness and uncertainty whether the practices will contribute to achieving water quality improvements.

Another key barrier is lack of funding. At the federal level, there is no single source of dedicated federal funding to design and implement green infrastructure solutions. Without assistance, communities take several approaches to financing wastewater and stormwater projects; the most frequently used tool is issuance of municipal bonds. As a dedicated funding source for projects, the number of local stormwater utilities that charge fees has grown in recent years. Many municipalities try to encourage homeowners and developers to incorporate green infrastructure practices by offering incentives. The most common types of local incentive mechanisms are stormwater fee discounts or credits, development incentives, rebates or financing for installation of specific practices, and award and recognition programs.

The Environmental Protection Agency’s (EPA’s) interest in and support for green infrastructure has grown since the 1990s. The agency has provided technical assistance and information and developed policies to facilitate and encourage green infrastructure solutions and incorporation in Clean Water Act permits. Pressed by municipalities about the challenges and costs that they face in addressing needs for wastewater and stormwater projects, in 2012 EPA issued an integrated permitting and planning framework for water infrastructure projects. The intention of the framework document is to provide communities with flexibility to prioritize needed water infrastructure investments. One component of the framework is identifying green infrastructure opportunities. EPA also is working with communities to refine how the agency determines when an infrastructure project is affordable for individual communities. Green infrastructure also is expected to be a key element of an upcoming EPA rulemaking to revise stormwater permit regulations.

Congress has shown some interest in these issues. In the 112
th Congress, bills were introduced to support research and implementation of green infrastructure and also to codify an integrated approach to permitting and planning of water infrastructure projects. None of these bills has been re-introduced in the 113th Congress. Also in the 112th Congress, a House subcommittee held hearings on EPA’s efforts to provide flexibility to communities in prioritizing water infrastructure. Overall, many in Congress remain concerned about how municipalities will pay for needed investments in water infrastructure projects generally—not limited to green infrastructure—and what role the federal government can and should play in those efforts.

Date of Report: July 28, 2013
Number of Pages: 29
Order Number: R43131
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The Oil Spill Liability Trust Fund: The Definition of “Oil” and Related Issues for Congress

Jonathan L. Ramseur
Specialist in Environmental Policy

Imports of crude oil derived from Canadian oil sands have increased substantially in recent years. Recent pipeline oil spills, including the 2010 Enbridge spill in Michigan and the 2013 ExxonMobil spill in Arkansas, have involved this material and have generated interest from policymakers and a variety of stakeholders.

The Oil Spill Liability Trust Fund (OSLTF) provides an immediate source of federal funding to respond to oil spills in a timely manner. Monies from the OSLTF can be used to respond to a wide variety of oil types, including oil sands-derived crude oils. The OSLTF is primarily financed by an 8-cents per-barrel tax on domestic crude oil and imported crude oil and petroleum products. In the context of the per-barrel OSLTF tax provision, a 1980 House committee report stated: 

the term crude oil does not include synthetic petroleum, e.g., shale oil, liquids from coal, tar sands, or biomass, or refined oil. 

Based on that statement, the Internal Revenue Service (IRS) concluded that oil sands-derived crude oils are not subject to the OSLTF excise tax. This determination raises several issues. Perhaps the foremost issue is one of equity. Policymakers may consider whether there is a rationale for exempting certain types of crude oils from the excise tax. At present, it is unclear the degree to which importers of oil sands-derived crude oils are paying the OSLTF excise tax.

The different contexts for “oil” could lead to situations in which expenditures from the trust fund are used to clean up oil that was not subject to the tax. However, the OSLTF arguably plays a backup role in terms of response funding during many oil spills. The responsible party for an oil spill often provides the primary source of response (i.e., cleanup) funding, and the federal government may recover costs or damages paid from the OSLTF. Thus, the financial impact to the trust fund could be minimal if the majority of its payments are reimbursed by the responsible parties. Nonetheless, the liability of responsible parties may be limited under certain conditions. In those situations, the OSLTF could effectively pay—up to a per-incident cap of $1 billion—for response costs and applicable damages above the liability limit.

Several legislative proposals would specifically include oil sands-derived crude oils within the scope of the per-barrel tax:

  • S. 268 (Levin, introduced February 11, 2013): the “CUT Loopholes Act” addresses multiple tax provisions; 
  • H.R. 786 (Markey, introduced February 15, 2013): the “Tar Sands Tax Loophole Elimination Act” is stand-alone legislation; 
  • S. 953 (Reed, introduced May 14, 2013): the “Student Loan Affordability Act” includes changes to several laws to offset the costs of components of the student loan program. 

If Congress were to explicitly include oil sands-derived crude oils within the scope of the perbarrel OSLTF tax, the revenue supporting the OSLTF would likely increase. Over the last four fiscal years, this tax has generated, on average, $485 million per year. Based on import data of Canadian oil sands-derived crude oil, the tax would have increased by approximately $35 million in 2012, assuming the IRS was not collecting the tax for these materials in that year.

Date of Report: July 1, 2013
Number of Pages: 19
Order Number: R43128
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