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 one 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 passed a bill that included a provision that would repeal the exemption in P.L. 109-58 (H.R. 3534), but the Senate took no action.

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 (P.L. 110-140, 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 2009 the National Research Council issued a report calling for major changes to strengthen 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 begun efforts to expand regulations and strengthen the current program with a revised rule. The new rule is expected to focus on stormwater discharges from newly developed and redeveloped, or post-construction, sites, such as subdivisions, roadways, industrial facilities, and commercial buildings or shopping centers. .


Date of Report: July3, 2013
Number of Pages: 14
Order Number: 97-290
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EPA Standards for Greenhouse Gas Emissions from Power Plants: Many Questions, Some Answers

James E. McCarthy
Specialist in Environmental Policy

As President Obama announced initiatives addressing climate change on June 25, 2013, a major focus of attention was on the prospect of greenhouse gas (GHG) emission standards for fossilfueled— mostly coal-fired—electric generating units (EGUs). EGUs (more commonly referred to as power plants) are the largest source of greenhouse gas emissions, accounting for about onethird of total U.S. GHGs. If the country is going to reduce its GHG emissions by significant amounts, as the President has committed to do, emissions from these sources will almost certainly need to be controlled.

The President addressed this issue on June 25 by directing EPA to re-propose GHG emission standards for new EGUs, which the agency had proposed in April 2012, but had not yet finalized. He also directed the agency to develop standards for existing power plants by June 2015.

Under the Clean Air Act, the EPA Administrator has a great deal of flexibility in setting these standards. The statute requires that New Source Performance Standards (NSPS) reflect the degree of emission limitation achievable through application of the best system of emission reduction that has been “adequately demonstrated.” The Administrator can take costs, health and environmental impacts, and energy requirements into account in determining what has been adequately demonstrated.

The standard for new EGUs proposed in 2012 would have set a limit of 1,000 pounds of carbon dioxide (CO2) per megawatt-hour of electricity generated—a standard that can be met by new natural gas combined cycle plants without add-on emission controls. Coal-fired plants, however, would find it impossible to meet the standard without controls to capture, compress, and store underground about 45% of the CO2 they produce—a technology referred to as carbon capture and storage (CCS).

Many in the electric power and coal industries view the 2012 proposed standard as effectively prohibiting the construction of new coal-fired power plants. Whether CCS technology has been adequately demonstrated is one question they raise. Other issues involve the cost of compliance, the increased energy required to capture and store carbon, and whether the agency should propose separate standards for gas-fired and coal-fired units. These questions may be addressed in the reproposal, which the President directed to be issued no later than September 20, 2013.

In its 2012 proposal, EPA maintained that the components of CCS technology have been demonstrated on numerous facilities. Despite this, the agency concluded that no new facilities (other than DOE-sponsored demonstration projects) will actually use CCS in the next 10 years. Given the projected low cost and abundance of natural gas, all new fossil-fueled units are likely to be powered by gas, according to EPA.

Interest in the power plant proposal extends far beyond the electric power and energy industries. Power plants are the first category of sources for which EPA has proposed to require CCS, but the agency expects to propose standards for the GHG emissions of other industries in the next few years. What the agency promulgates in this instance may serve as a precedent.

The potential impacts of the rule also extend beyond new sources, because the agency is obligated under Section 111(d) of the Clean Air Act to promulgate guidelines for existing sources within a category when it promulgates GHG standards for new sources. Using these guidelines, states will be required to develop performance standards for existing sources. These could be less stringent than the NSPS—taking into account, among other factors, the remaining useful life of the existing source—but the standards could have far greater impact than the NSPS, given that they will affect all existing sources.

Many in Congress oppose GHG emission standards. In the 112th Congress, the House passed bills (H.R. 1, H.R. 910, and H.R. 3409) that would have prohibited EPA from promulgating GHG emission standards for any source; the Senate did not follow suit. The President’s climate change initiative is likely to stir renewed interest in this subject.


Date of Report: June 26, 2013
Number of Pages: 16
Order Number: R43127
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President Obama’s Climate Action Plan

Jane A. Leggett, Coordinator
Specialist in Energy and Environmental Policy

On June 25, 2013, President Obama announced a national plan to reduce emissions of carbon dioxide (CO2) and other greenhouse gases (GHG), as well as to encourage adaptation to expected climate change. The President affirmed his commitment to his 2009 policy pledge to reduce U.S. GHG emissions by 17% below 2005 levels by 2020 if all other major economies agreed to limit their emissions as well. In 2011, the United States’ gross GHG emissions were approximately 7% below their 2005 levels.

The President stated a willingness to work with Congress toward enacting a bipartisan, marketbased scheme to reduce GHG emissions. He also said that he would move ahead with Executive Branch actions in the absence of Congressional support. The President’s Climate Action Plan lays out a series of measures in three categories:

• Cut carbon pollution in America. 
• Prepare the United States for the impacts of climate change. 
• Lead international efforts to address global climate change. 

Many measures included in the Climate Action Plan have been underway. The plan specifies few timelines or metrics for evaluating progress of individual measures beyond national aggregate or sectoral GHG emissions or energy efficiency.

The centerpiece of the President’s announcement arguably is a Presidential Memorandum, also issued June 25, that directs EPA to issue two types of rules to curtail carbon dioxide emissions from new and existing power plants before the end of his term. Specifically, the Presidential Memorandum first instructs EPA to issue, as planned, a new proposal under the Clean Air Act (CAA), by September 20, 2013, for GHG emissions from newly constructed electric generating units (EGU), and to issue the final rule “in a timely fashion” after comments. Second, and most significantly, the Presidential Memorandum directs EPA also to issue standards, regulations, or guidelines for CO2 emissions applicable to modified, reconstructed and existing power plants, building on States’ efforts to reduce power plant emissions. The Memorandum included neither specific levels of EGU emissions performance nor target-sectoral GHG reductions. The Memorandum requests the proposed rules for existing EGU by June 1, 2014, and final rules by June 1, 2015. Further, the Memorandum requests that the guidelines require States to submit to EPA their implementation plans, required under §111(d) of the CAA, and their implementing regulations by June 30, 2016. The language of the announcement and Memorandum suggest that the new standards and guidelines might be written to allow innovative, potentially cost-cutting flexibilities to states and regulated entities.

The President’s Climate Action Plan additionally announced regulatory actions to:

• reduce GHG emissions including fuel efficiency standards for heavy-duty vehicles post-2018; 
• tighten efficiency standards for federal buildings; and 
• require a transition away from chemicals that contribute to global climate change that were introduced as alternatives to stratospheric ozone-depleting chemicals.

In President Obama’s speech, he referred to the pending Presidential Permit to allow construction of the Keystone XL pipeline to carry Canadian oil sands across the U.S. border. President Obama stated, “The net effects of the pipeline’s impact on our climate will be absolutely critical to determining whether this project is allowed to go forward.”

A host of administrative actions would promote GHG emission reduction, energy efficiency, and increased electricity generation by renewable energy in federal facilities, on federal lands, and among private, state, and local partners of federal agencies. Budget proposals for some of these actions were included in the President’s proposal for FY2014. To promote adaptation to climate change by the federal government and states and localities, the Climate Action Plan includes mostly a continuation of existing programs.

Additionally, a set of existing international initiatives were included in the President’s announcement to promote global reductions of GHG emissions and adaptation. New in the President’s announcement is a call to end U.S. support for public financing of new coal-fired power plants overseas except for those employing advanced efficiency or carbon capture and sequestration technology. Notably, the plan provided no quantification of whether the United States would meet its commitment to reduce GHG emissions by 17% from 2005 levels by 2020 or whether or how the United States would work towards its share of a 2009 international pledge of $100 billion annually to assist developing countries to mitigate their GHG emissions and adapt to climate change.

Date of Report: June 26, 2013
Number of Pages: 16
Order Number: R43120
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Federal Pollution Control Laws: How Are They Enforced?

Robert Esworthy
Specialist in Environmental Policy

As a result of enforcement actions and settlements for noncompliance with federal pollution control requirements, the U.S. Environmental Protection Agency (EPA) reported that, during FY2012, regulated entities committed to invest an estimated $9.0 billion for judicially mandated pollution controls and cleanup, and for implementing mutually agreed upon (supplemental) environmentally beneficial projects. EPA estimated that these efforts achieved commitments to reduce, treat, or eliminate 2.2 billion pounds of pollutants in the environment, primarily from air and water. EPA also assessed more than $208.0 million in civil penalties (administrative and judicial) and $44.0 million in criminal fines and restitution during FY2012. Noncompliance with federal pollution control laws remains a continuing concern. The overall effectiveness of the enforcement organizational framework, the balance between state autonomy and federal oversight, and the adequacy of funding are long-standing congressional concerns.

This report provides an overview of the statutory framework, key players, infrastructure, resources, tools, and operations associated with enforcement and compliance of the major pollution control laws and regulations administered by EPA. It also outlines the roles of federal (including regional offices) and state regulators, as well as the regulated community. Understanding the many facets of how all federal pollution control laws are enforced, and the responsible parties involved, can be challenging. Enforcement of the considerable body of these laws involves a complex framework and organizational setting.

The array of enforcement/compliance tools employed to achieve and maintain compliance includes monitoring, investigation, administrative and judicial (civil and criminal) actions and penalties, and compliance assistance and incentive approaches. Most compliance violations are resolved administratively by the states and EPA. EPA concluded 1,780 final administrative penalty orders in FY2012. Civil judicial actions, which may be filed by states or EPA, are the next most frequent enforcement action. EPA may refer civil cases to the U.S. Department of Justice (DOJ), referring 215 civil cases in FY2012. The U.S. Attorney General’s Office and DOJ’s Environmental Crimes Section, or the state attorneys general, in coordination with EPA criminal investigators and general counsel, may prosecute criminal violations against individuals or entities who knowingly disregard environmental laws or are criminally negligent.

Federal appropriations for environmental enforcement and compliance activities have remained relatively constant in recent fiscal years. Some contend that overall funding for enforcement activities has not kept pace with inflation or with the increasingly complex federal pollution control requirements. Congress appropriated $583.4 million for enforcement activities for FY2012, a decrease below the $593.5 million enacted for FY2011 and the $596.7 million enacted for FY2010, but an increase above the $568.9 million enacted for FY2009 and $553.5 million for FY2008. The President’s FY2013 and FY2014 budget requests included $615.9 million and $625.0 million, respectively, for EPA enforcement activities. Division F of P.L. 113-6, the Consolidated and Further Continuing Appropriations Act, 2013, enacted March 26, 2013, appropriated funding for the full fiscal year through September 30, 2013, for seven regular appropriations acts, including Interior, Environment, and Related Agencies, which funds EPA. Although the agency submitted its FY2013 Operating Plan to the House and Senate Appropriations Committees on May 14, 2013, detailed allocations of EPA’s FY2013 enacted funding for enforcement program activities across the agency’s multiple appropriations accounts were not readily available at the time this report was updated.


Date of Report: June 18, 2013
Number of Pages: 55
Order Number: RL34384
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