Monday, March 29, 2010

After a disaster, when a region turns its attention to rebuilding, one of the greatest challenges to moving forward may involve how to properly manage debris generated by the event. Options include typical methods of waste management—landfilling, recycling, or burning. The challenge after a major disaster (e.g., a building or bridge collapse, or a flood, hurricane, or earthquake) is in managing significantly greater amounts of debris often left in the wake of such an event.

Debris after a disaster may include waste soils and sediments, vegetation (trees, limbs, shrubs), municipal solid waste (common household garbage, personal belongings), construction and demolition debris (in some instances, entire residential structures and all their contents), vehicles (cars, trucks, boats), food waste, so-called white goods (refrigerators, freezers, air conditioners), and household hazardous waste (cleaning agents, pesticides, pool chemicals). Each type of waste may contain or be contaminated with certain toxic or hazardous constituents. In the short term, removal of debris is necessary to facilitate the recovery of a geographic area. In the long term, the methods by which these wastes are to be managed require proper consideration to ensure that their management (by landfilling, for example) will not pose future threats to human health or the environment.

After a presidentially declared disaster, federal funding or direct assistance in response to the disaster may be available to a state or local government. The Federal Emergency Management Agency (FEMA) may provide funding through its Public Assistance (PA) Grant Program for debris removal operations that eliminate immediate threats to lives, public health, and safety, or eliminate immediate threats of significant damage to improved public or private property. The federal share of funding to the affected area will be stated in the disaster declaration, but will be no less than 75%. The funding will be available for response activities in a designated geographic area for a specific period of time.

In addition to funding, if the state or local government does not have the capability to respond to the disaster, it may request direct federal assistance from FEMA. Federal agencies most likely to assist with debris removal operations are the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA). Activities they may perform include right-of-way clearance, curbside waste pickup, private property debris removal, property demolition, assistance with contaminated debris management, and collection of household hazardous waste.

Wednesday, March 24, 2010

Damage to or destruction of the nation's water supply and water quality infrastructure by terrorist attack or natural disaster could disrupt the delivery of vital human services in this country, threatening public health and the environment, or possibly causing loss of life. Interest in such problems has increased greatly since the September 11, 2001, terrorist attacks in the United States.

Across the country, water infrastructure systems extend over vast areas, and ownership and operation responsibility are both public and private, but are overwhelmingly non-federal. Since the attacks, federal dam operators and local water and wastewater utilities have been under heightened security conditions and are evaluating security plans and measures. There are no federal standards or agreed-upon industry practices within the water infrastructure sector to govern readiness, response to security incidents, and recovery. Efforts to develop protocols and tools are ongoing since the 9/11 terrorist attacks. This report presents an overview of this large and diverse sector, describes security-related actions by the government and private sector since 9/11, and discusses additional policy issues and responses, including congressional interest.

Policymakers have been considering a number of initiatives, including enhanced physical security, better communication and coordination, and research. A key issue is how additional protections and resources directed at public and private sector priorities will be funded. In response, Congress has provided $923 million in appropriations for security at water infrastructure facilities (to assess and protect federal facilities and support security assessment and risk reduction activities by non-federal facilities) and passed a bill requiring drinking water utilities to conduct security vulnerability assessments (P.L. 107-188). When Congress created the Department of Homeland Security (DHS) in 2002 (P.L. 107-297), it gave DHS responsibilities to coordinate information to secure the nation's critical infrastructure, including the water sector. Under Homeland Security Presidential Directive-7, the Environmental Protection Agency (EPA) is the lead federal agency for protecting drinking water and wastewater utility systems.

Recent congressional interest has focused on two legislative issues: (1) security of wastewater utilities, and (2) whether to include water utilities in chemical plant security regulations implemented by DHS. In the 109th Congress, a Senate committee approved legislation to encourage wastewater treatment works to conduct vulnerability assessments and develop site security plans. Similar legislation was introduced in the 110th Congress, and has been introduced in the 111th Congress (H.R. 2883). Congress also has turned attention to legislation to extend DHS's Chemical Facilities Anti-Terrorism Standards (H.R. 2868) and as part of that debate has been considering whether to preserve an existing exemption for water utilities from chemical facility standards or to include them in the scope of DHS security rules. Continuing attention to these issues in the 111th Congress is likely.

EPA regulatory actions on greenhouse gas (GHG) emissions using existing Clean Air Act authority have been the main focus of congressional interest in clean air issues in recent months. Although the agency and the Obama Administration have consistently said that they would prefer that Congress pass legislation to address climate change, EPA has begun to develop regulations using its existing authority. On December 15, 2009, the agency finalized an "endangerment finding" under Section 202 of the Clean Air Act, which permits it (in fact, requires it) to regulate pollutants for their effect as greenhouse gases for the first time. Relying on this finding, EPA will promulgate GHG emission standards for motor vehicles by the end of March. The implementation of these standards will, in turn, trigger permitting requirements and the imposition of Best Available Control Technology for new major stationary sources of GHGs.

It is the triggering of standards for stationary sources (power plants, manufacturing facilities, and others) that has raised the most concern in Congress: legislation has been introduced in both the House and Senate aimed at preventing EPA from implementing these requirements. The legislation has taken several forms, including the introduction of resolutions of disapproval for the endangerment finding itself under the Congressional Review Act, and stand-alone legislation that would forestall specific EPA regulatory actions. Meanwhile, EPA has itself proposed regulations and guidance that will limit the applicability of Clean Air Act GHG requirements, delaying the applicability of requirements for all stationary sources until 2011, focusing its regulatory efforts on the largest emitters, and granting smaller sources at least a six-year reprieve.

The endangerment finding and EPA's other actions, which were triggered by a 2007 Supreme Court decision, come as Congress continues to struggle with climate change legislation. On June 26, 2009, the House narrowly passed H.R. 2454, a 1,428-page bill addressing a number of interrelated energy and climate change issues. The bill would establish a cap-and-trade program for greenhouse gas (GHG) emissions, beginning in 2012. In the Senate, both the Environment and Public Works Committee and the Energy and Natural Resources Committee have reported bills (S. 1733 and S. 1462), but action subsequently bogged down, while a trio of Senators began negotiating a climate bill from scratch. As the clock winds down on the current Congress, it becomes less likely that climate legislation will be enacted, and more likely that EPA's actions will be the principal U.S. response to climate issues for now.

Besides addressing climate change, EPA has taken action on a number of conventional air pollutants, generally in response to the courts. The Bush Administration's EPA made a number of regulatory decisions that were vacated or remanded to the agency: among them were decisions on the Clean Air Interstate Rule (CAIR)—a rule designed to control the long-range transport of sulfur dioxide and nitrogen oxides from power plants, by establishing a cap-and-trade program— and the Clean Air Mercury Rule, which would have established a cap-and-trade program for power plant mercury emissions. EPA will address these court decisions through new regulations – the agency expects to propose a replacement for CAIR in April. Congress could also address these issues through legislation, an approach that might reduce the likelihood of further court challenges. The agency is also in the midst of reviewing ambient air quality standards for the six most widespread air pollutants. These standards serve as EPA's definition of clean air, and drive a wide range of regulatory controls.

This report provides an overview of clean air legislative and regulatory issues.

Thursday, March 18, 2010

John BlodgettSpecialist in Environmental PolicyLarry ParkerSpecialist in Energy and Environmental Policy

In the context of climate change and possible responses to the risk associated with it, three variables strongly influence the levels and growth of greenhouse gas (GHG) emissions: population, income (measured as per capita gross domestic product [GDP]), and intensity of emissions (measured as tons of greenhouse gas emissions per million dollars of GDP).

(Population) × (per capita GDP) × (Intensityghg) = Emissionsghg

This is the relationship for a given point in time; over time, any effort to change emissions alters the exponential rates of change of these variables. This means that the rates of change of the three left-hand variables, measured in percentage of annual change, sum to the rate of change of the right-hand variable, emissions.

For most countries, and for the world as a whole, population and per capita GDP are rising faster than intensity is declining, so emissions are rising. Globally, for the variables above over the period 1990-2005, the rates of change (Δ) in annual percent sum as follows (numbers do not add precisely because of rounding):

As can be seen, global emissions have been rising at a rate of about 1.6% per year, driven by the growth of population and of economic activity.

Within this generalization, countries vary widely. (Unless otherwise noted, comments about countries refer to the top-20 emitters as of 2005, who accounted for about 75% of world emissions that year.) Between 1990 and 2005, in some countries, including Brazil, Mexico, Indonesia, and South Africa, population growth alone exceeded the decline in intensity. For most countries, and for the world as a whole, per capita GDP growth exceeded the intensity improvement each achieved. Countries for whom intensity improvements were greater than their per capita GDP increases included Germany, the United Kingdom, the United States, France, and South Africa. And both the Russian Federation and the Ukraine, following their economic contractions in the 1990s, posted negative numbers for population, per capita income, intensity, and GHG emissions between 1990 and 2005. Besides the Russian Federation and the Ukraine, only the United Kingdom and Germany reduced their GHG emissions for the period (Germany being helped by reductions in the former East Germany).

Stabilizing greenhouse gas emissions would mean the rate of change equals zero. Globally, with a population growth rate of 1.4% per year and an income growth rate of 1.7% per year, intensity would have to decline at a rate of -3.1% per year to hold emissions at the level of the year that rate of decline went into effect. Within the United States, at the 1990-2005 population growth rate of 1.1% per year and income growth rate of 1.8% per year, intensity would have had to decline at a rate of -2.9% per year to hold emissions level; however, U.S. intensity declined at a rate of -1.9%, leaving emissions to grow at 1.0% per year.

Looking to the future, under auspices of the Copenhagen Accord, the United States has submitted a target of reducing emissions from the 2005 level by 17% in 2020. This would require the United States to reduce the intensity of its emissions by some -4.6% per year during the 2010-2020 decade. This implies that the rate of intensity decline needs to better than double. .

The House of Representatives and the Senate created separate voluntary recycling programs in 1989, during the 101st Congress (1989-1991). Administered by the Architect of the Capitol, the recycling programs aimed to reduce the amount of material sent to landfills and establish the House and the Senate as leaders of the recycling movement.

The initial recycling programs in the House and Senate focused on the recycling of paper and the use of recycled paper, including white office paper, newspaper, and cardboard. While the program had modest beginnings, since 1992, when the General Services Administration (GSA) began managing the House and Senate recycling contracts, the House (13,190 tons) and the Senate (6,314 tons) have recycled a combined total of approximately 19,500 tons of paper.

At approximately the same time the House and Senate began recycling paper, they also began recycling bottles and cans. Since 1992, when GSA began managing the recycling of non-paper materials, the House (656 tons) and the Senate (226 tons) have recycled a combined total of approximately 882 tons of bottles and cans. This number has fluctuated as the increased use of plastic instead of glass bottles has decreased the total weight of recycled bottles and cans.

In 2001, the House and the Senate began recycling e-waste (e.g., computers, printers, and toner cartridges), construction, and demolition waste products (e.g., carpet, concrete, ceiling tiles, and scrap metal). The additional categories of recycling have allowed the House (27,000 tons) and the Senate (12,500 tons) to recycle almost 40,000 tons of total materials. Overall, the expansion of the recycling program in both the House and Senate has resulted in an increase of total tons recycled and a decrease in total tons of waste transferred to landfills.

Recently, the recycling program has expanded to include the recycling of cell phones and the composting of food waste in the House of Representatives. In the FY2009 Omnibus Appropriations Act, the Architect's statutory recycling authority was amended to create a new program for the collection and sale of recycled materials as surplus property and to establish a recycling revolving fund within the Architect's office. The language requires the Architect to use recycling proceeds to support environmental and energy related programs.

In April 2010, the Environmental Protection Agency (EPA) expects to propose a new Clean Air Transport Rule to control powerplant emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx). When finalized, this rule will replace the Clean Air Interstate Rule (CAIR); CAIR, which was promulgated in May 2005, established a regional cap-and-trade program for SO2 and NOx emissions from electric generating units (EGUs) in 28 eastern states and the District of Columbia. On July 11, 2008, in North Carolina v. EPA, the U.S. Court of Appeals for the D.C. Circuit vacated CAIR, saying that it had "more than several fatal flaws." The court subsequently modified its decision: on December 23, 2008, it reversed itself by allowing CAIR to remain in effect until a new rule is promulgated by EPA.

From a policy standpoint, the court's July 2008 decision seriously undermined EPA's approach to clean air over the previous eight years. CAIR was the lynchpin that held together the Bush Administration's strategy for attainment of the ozone and fine particulate National Ambient Air Quality Standards (NAAQS), for achieving reductions in mercury emissions from coal-fired powerplants, for addressing regional haze impacts from powerplants, and for responding to state petitions to control upwind sources of ozone and fine particulates under Section 126 of the Clean Air Act. As discussed in this report, the potential impact on communities attempting to achieve NAAQS and the impact on mercury emissions could be substantial, and has prompted some to call for congressional action to address the issue. On February 4, 2010, Senator Carper and 11 cosponsors introduced S. 2995, a multipollutant bill that would replace the CAIR requirements, and require standards for powerplant emissions of mercury.

EPA's only short-term option, other than letting the decision stand, was to seek further judicial review, a step the agency took on September 24, 2008. This led to the aforementioned D.C. Circuit ruling allowing CAIR to remain in effect until replaced. But the court's July 2008 decision strongly suggests that there is no simple "fix" that will make CAIR acceptable to the court. This left EPA with three clear long-term options: (1) starting anew with a new strategy with respect to mitigating transported air pollution based on the decision; (2) allowing the states to sort out the issue through Section 126 petitions; and (3) seeking new legislation providing EPA with the statutory authority to implement either CAIR in some form, or an alternative. The agency is proceeding with the first of these options, but has indicated that it views congressional efforts to address the issue as "mutually reinforcing."

For Congress, the decision raises several issues:

• Should Congress consider providing EPA with the authority to implement CAIR or other cost-based, market-oriented approaches to address NAAQS?

• Should Congress consider multi-pollutant legislation as a supplement or substitute for the current regulatory regime, at least for electric generating units?

• Should Congress consider a more comprehensive revision to the Clean Air Act to address the full scope of ozone and PM2.5 NAAQS non-attainment and related issues, as well as mercury emissions from coal-fired powerplants, and emerging environmental issues such as climate change? .

Both the European Union's Emissions Trading Scheme (EU-ETS) and the U.S. Title IV sulfur dioxide (SO2) program provide insights into regulatory issues that may face any future U.S. carbon market. From the initial operations of the EU-ETS, the 2006 price crash raised questions about the adequacy of market regulation. In particular, some suspect that information about allocations leaked before official publication, and that certain traders profited from this knowledge.

Title IV's longer trading history reveals two important trends: (1) an increasing trend toward diverse and non-traditional participants that is likely to continue under a carbon market; (2), an increasing use of financial instruments to manage allowance price risk that is likely to expand under a carbon market as a hedge against price uncertainty. Indeed, a carbon market may look more like other energy markets, such as natural gas and oil, than the somewhat sedate SO2 allowance market.

Regulation of emissions trading would have to consider two kinds of fraud and manipulation: fraud by traders or intermediaries against other investors, and sustained price manipulation. Four agencies could have roles in the regulation of an emissions market, each with its own attributes that may contribute to effective regulation.

The Commodities Futures Trading Commission (CFTC) currently oversees the Title IV program and its mission most closely resembles what a regulator of a future carbon market would do, including market surveillance to prevent or detect fraud and manipulation. The major weakness of the CFTC, according to some, is that it lacks resources and the statutory mandate to do its job. Current derivatives reform proposals would greatly enlarge its regulatory scope.

The Securities and Exchange Commission (SEC) is much larger than the CFTC, but it also faces resource and capability issues. While the CO2 market will resemble commodities markets more closely than securities, SEC has some appropriate regulatory tools applicable to an emissions market.

The Environmental Protection Agency (EPA) would likely be responsible for the primary market in allowances. However, EPA lacks experience comparable to that of the CFTC and SEC in regulating trading markets, although the data it gathered in the primary market could be critical to oversight of the secondary market.

Federal Energy Regulatory Commission (FERC) was granted oversight authority over bulk electricity and interstate natural gas markets in 2005. Its experience with market surveillance and enforcement is thus limited in comparison to the SEC and CFTC, and it does not play an active role in overseeing the Title IV market.

It is possible that no single regulator would have clear jurisdiction, as is the case in the Title IV program. This kind of regulatory fragmentation has not always worked well. An umbrella group to monitor markets and provide a forum for regulatory coordination might help to prevent regulatory gaps or conflicts in the market. .

Sunday, March 14, 2010

Brent D. YacobucciSpecialist in Energy and Environmental PolicyBill CanisSpecialist in Industrial Organization and Business

In an attempt to boost sagging U.S. auto sales and to promote higher vehicle fuel economy, the President signed legislation on June 24, 2009, P.L. 111-32, establishing a program to provide rebates to prospective purchasers toward the purchase of new, fuel-efficient vehicles, provided the trade-in vehicles are scrapped. The program was known as Consumer Assistance to Recycle and Save (CARS), or, informally, as "cash for clunkers." It provided rebates of $3,500 or $4,500, depending on fuel economy and vehicle type of both the new vehicle and the vehicle to be disposed of. Congress appropriated $3 billion for the program in two separate installments. CARS ran for a month, from July 24, 2009, until August 25, 2009.

During this period, nearly 700,000 vehicles were traded. Estimates of new vehicle sales induced by the rebate system range from 125,000 to as many as 440,000. Motor vehicle sales in August 2009 hit 14 million seasonally adjusted units, compared to only 9.5 million being sold on a seasonally adjusted basis in the first six months of 2009. These CARS-assisted summer sales helped propel overall 2009 car sales to 10.4 million units, comparable to annual sales for 2008.

After officially launching on June 24, 2009, when NHTSA regulations were issued, the CARS program was embraced by thousands of consumers and by auto dealers across the country, who advertised it widely. By the end of the first week, the U.S. Department of Transportation (DOT) announced that nearly all of the initial $1 billion in funds appropriated for it were committed, based on rising dealer applications for rebate reimbursements and surveying of dealer backlogs.

Recognizing the stimulative effect of the program, the House of Representatives voted to appropriate an additional $2 billion (H.R. 3435) on July 31, 2009, tapping funds from the economic recovery act (American Recovery and Reinvestment Act, or ARRA, P.L. 111-5). The Senate followed suit on August 6, 2009, and President Obama signed the supplemental CARS funding into law (P.L. 111-47) on August 7, 2009.

By most measures, CARS was successful in stimulating auto sales. Among the benchmarks listed by NHTSA, which oversaw CARS:

• August 2009 sales were 43% higher than in June 2009, the last pre-CARS month;

• The total value of all CARS transactions was $15.2 billion;

• About 60,000 jobs were estimated to have been created in auto parts, assembly, and sales, and an estimated $7.8 billion added to U.S. Gross Domestic Product.

Similar programs have been implemented in various U.S. states, but this was the first federal program. In general those state pilot programs focused on retiring vehicles with older, and in some cases malfunctioning, emissions control systems in order to promote better air quality. CARS focused, instead, on higher fuel economy and promoting U.S. auto sales. Similar vehicle retirement programs have been implemented in other countries, such as Japan, Germany, France, and China, and provided a similar boost in auto sales.

This report outlines the key provisions of the CARS program and discusses the impact of the program on the economy. It also summarizes similar programs in other industrial countries.

Friday, March 12, 2010

On April 2, 2007, the Supreme Court rendered one of its most important environmental decisions of all time. In Massachusetts v. EPA, the Court held that greenhouse gases (GHGs), widely viewed as causing climate change, constitute "air pollutants" as that phrase is used in the Clean Air Act (CAA). As a result, said the Court, the Environmental Protection Agency (EPA) had improperly denied a petition seeking CAA regulation of GHGs from new motor vehicles by saying the agency lacked authority over such emissions.

This report presents a chronology of major federal agency actions taken in the wake of Massachusetts v. EPA. Most of the listed actions trace directly or indirectly back to the decision: EPA's "endangerment finding" for GHGs from new motor vehicles, the agency's proposed standards for such vehicles, its interpretation of the phrase "subject to regulation" (the CAA trigger for requiring "best available control technology"), and the "tailoring rule" (limiting the stationary sources that initially will have to install best available control technology and obtain Title V permits). In addition, a few agency actions were included solely because of their relevance to climate change and their post-Massachusetts occurrence—for example, EPA's responses to California's request for a waiver of CAA preemption allowing that state to set its own limits for GHG emissions from new motor vehicles, and EPA's monitoring rule for GHG emissions.

More analytical treatment of the government actions in this report, and their broader context, may be found in

Friday, March 5, 2010

The Environmental Protection Agency (EPA) published its final revisions to the National Ambient Air Quality Standards (NAAQS) for particulate matter (particulates, or PM) on October 17, 2006. EPA's actions leading up to and following promulgation of the 2006 standard have been the subject of considerable congressional oversight. EPA's ongoing implementation of the standard, beginning with the designation of those geographical areas not in compliance, will likewise be an area of concern and debate among many Members of Congress, states, and other stakeholders for some time.

Promulgation of NAAQS sets in motion a process under which the states and the EPA identify areas that exceed the standard ("nonattainment areas") using multi-year air quality monitoring data and other criteria, requiring states to take steps to reduce pollutant concentrations in order to achieve it. On November 13, 2009, EPA published its final designations for the 2006 PM NAAQS that include 120 counties and portions of counties in 18 states as nonattainment areas based on 2006 through 2008 air quality monitoring data. The final designations, which include tribal land of 22 tribes, were effective as of December 14, 2009. States have three years from the effective date to submit State Implementation Plans (SIPs), which identify specific regulations and emission control requirements that would bring an area into compliance.

In December of 2008 EPA had identified 211 counties and portions of counties (58 areas) in 25 states for designation as nonattainment for the 2006 PM NAAQS based on 2005 through 2007 data. The publication of these designations—and thus the effective date of the final designations—was delayed pending review by the current Administration. The review was initiated, in part, in response to a White House January 20, 2009, memorandum regarding regulatory review. This review and the availability of more current air quality monitoring data resulted in the final designations published in November 2009.

The 2006 NAAQS strengthened the pre-existing (1997) standard for "fine" particulate matter 2.5 micrometers or less in diameter (PM2.5) by lowering the allowable daily concentration of PM2.5 in the air. The daily standard averaged over 24-hour periods is reduced from 65 micrograms per cubic meter (μg/m3) to 35 μg/m3. However, the annual PM2.5 standard, which addresses human health effects from chronic exposures to the pollutants, is unchanged from the 1997 standard of 15 μg/m3. The 2006 NAAQS did not substantially modify the daily standard for slightly larger, but still inhalable, particles less than or equal to 10 micrometers (PM10), retaining the 24-hour standard but revoking the annual standard for PM10.

EPA's final nonattainment designations are only for the revised 2006 24-hour PM2.5 standard. The EPA did not require new nonattainment designations for PM10. The final designations for the 2006 PM2.5 NAAQS include a few areas designated nonattainment for PM2.5 for the first time, but, as expected, the majority of the counties identified overlap with EPA's final nonattainment designations for the 1997 PM2.5 NAAQS. EPA's designations for the 1997 PM2.5 NAAQS included all or part of 204 counties in 20 states and the District of Columbia. Most of them were only exceeding the annual standard; only 12 counties were exceeding both the 24-hour and the annual standards. Thus, the 2006 tightening of the 24-hour standard resulted in an increased number of areas being designated nonattainment based on exceedances of both the 24-hour and the annual standards. .

Wednesday, March 3, 2010

Nearly half a million miles of oil and natural gas transmission pipeline crisscross the United States. While an efficient and fundamentally safe means of transport, many pipelines carry hazardous materials with the potential to cause public injury and environmental damage. The nation's pipeline networks are also widespread, running alternately through remote and densely populated regions; consequently, these systems are vulnerable to accidents and terrorist attack.

The Pipeline and Hazardous Materials Safety Administration (PHMSA), within the Department of Transportation (DOT), is the lead federal regulator of pipeline safety. PHMSA uses a variety of strategies to promote compliance with its safety regulations, including inspections, investigation of safety incidents, and maintaining a dialogue with pipeline operators. The agency clarifies its regulatory expectations through a range of communications and relies upon a range of enforcement actions to ensure that pipeline operators correct safety violations and take preventive measures to preclude future problems. The Transportation Security Administration (TSA), within the Department of Homeland Security (DHS), is the lead federal agency for security in all modes of transportation—including pipelines. The agency oversees industry's identification and protection of pipelines by developing security standards; implementing measures to mitigate security risk; building stakeholder relations; and monitoring compliance with security standards, requirements, and regulation. While PHMSA and TSA have distinct missions, pipeline safety and security are intertwined.

Although pipeline impacts on the environment remain a concern of some public interest groups, both federal government and industry representatives suggest that federal pipeline programs have been on the right track. As oversight of the federal role in pipeline safety and security continues, Congress may focus on the effectiveness of state pipeline damage prevention programs, the promulgation of low-stress pipeline regulations, federal pipeline safety enforcement, and the relationship between DHS and the DOT with respect to pipeline security, among other provisions in federal pipeline safety regulation. In addition to these specific issues, Congress may wish to assess how the various elements of U.S. pipeline safety and security activity fit together in the nation's overall strategy to protect transportation infrastructure. .

The Clean Water Act prohibits the discharge of pollutants from any "point source" to waters of the United States unless authorized under a permit that is issued by EPA or a qualified state, and the act expressly defines CAFOs as point sources. Permits limiting the type and quantity of pollutants that can be discharged are derived from effluent limitation guidelines promulgated by EPA. The 2003 rule, updating rules that had been in place since the 1970s, revised the way in which discharges of manure, wastewater, and other process wastes from CAFOs are regulated, and it modified both the permitting requirements and applicable effluent limitation guidelines. It contained important first-time requirements: all CAFOs must apply for a discharge permit, and all CAFOs that apply such waste on land must develop and implement a nutrient management plan.

EPA's 2008 revised regulation addressed those parts of the 2003 rule that were affected by the federal court's ruling: (1) it eliminated the "duty to apply" requirement that all CAFOs must either apply for discharge permits or demonstrate that they have no potential to discharge, which was challenged by industry plaintiffs; (2) it added procedures regarding review of and public access to nutrient management plans, challenged by environmental groups; and (3) it modified aspects of the effluent limitation guidelines, also challenged by environmental groups. The final rule also modified a provision of the 2003 rule that the court upheld, clarifying the treatment of a regulatory exemption for agricultural stormwater discharges.

EPA's efforts to revise the 2003 rule were controversial, with particular focus on the "duty to apply" for a permit and agricultural stormwater exemption provisions. Environmental groups strongly criticized EPA's actions, arguing that the Waterkeeper Alliance court had left in place several means for the agency to accomplish much of its original permitting approach, but instead EPA chose not to do so. Industry groups were generally supportive, approving deletion of the previous "duty to apply" provision and also of efforts to provide flexibility regarding nutrient management plan modifications. Nevertheless, legal challenges to the 2008 revised rule were brought by both industry and environmental groups. State permitting authorities also had a number of criticisms, focusing on key parts that they argued would greatly increase the administrative and resource burden on states. CAFOs were to comply with the revised rule by February 27, 2009. Congress has shown some interest in CAFO issues in the past, primarily through oversight hearings in 1999 and 2001. .

Tuesday, March 2, 2010

The Department of Homeland Security (DHS) has statutory authority to regulate chemical facilities for security purposes. This authority expires in October 2010. The 111th Congress is taking action to reauthorize this program, but the scope and details of its reauthorization remains an issue of congressional debate. Some Members of Congress support an extension, either shortor long-term, of the existing authority. Other Members call for revision and more extensive codification of chemical facility security regulatory provisions. The tension between continuing and changing the statutory authority is exacerbated by questions regarding its effectiveness in reducing chemical facility risk and the sufficiency of federal funding for chemical facility security.

Key policy issues debated in previous Congresses have been considered during the reauthorization debate. These issues include the facilities that should be considered as chemical facilities; the appropriateness and scope of federal preemption of state chemical facility security activities; the availability of information for public comment, potential litigation, and congressional oversight; and the role of inherently safer technologies.

Congress is faced with a variety of options. Congress might allow the statutory authority to expire. Congress might permanently or temporarily extend the expiring statutory authority in order to observe the impact of the current regulations and, if necessary, address any perceived weaknesses at a later date. Congress might codify the existing regulation in statute and reduce the discretion available to the Secretary of Homeland Security to change the current regulatory framework. Alternatively, Congress might change the current regulation's implementation, scope, or impact by amending the existing statute or creating a new one.

The Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83) extends the existing statutory authority through October 4, 2010, and provides DHS with additional chemical facility security funding relative to FY2009. The House of Representatives has passed H.R. 2868, which addresses chemical facility, water treatment facility, and wastewater treatment facility security. This legislation includes the provisions of H.R. 3258, as reported by the House Committee on Energy and Commerce. H.R. 2868 has been referred to the Senate Committee on Homeland Security and Governmental Affairs.

Members have introduced other bills in the 111th Congress to address security at chemical facilities and other facilities that possess chemicals. S. 2996 would extended the existing authority until October 4, 2015, and establish chemical security training and exercise programs. H.R. 2477 would extend the existing statutory authority until October 1, 2012. H.R. 261 would alter the existing authority but has not been reported. H.R. 2883 would authorize EPA to establish certain risk-based security requirements for wastewater facilities. .

Monday, March 1, 2010

According to the Environmental Protection Agency, the release of waste from animal feedlots to surface water, groundwater, soil, and air is associated with a range of human health and ecological impacts and contributes to degradation of the nation's surface waters. The most dramatic ecological impacts are massive fish kills. A variety of pollutants in animal waste can affect human health, including causing infections of the skin, eye, ear, nose, and throat. Contaminants from manure can also affect human health by polluting drinking water sources.

Although agricultural activities are generally not subject to requirements of environmental law, discharges of waste from large concentrated animal feeding operations (CAFOs) into the nation's waters are regulated under the Clean Water Act. In the late 1990s, the Environmental Protection Agency (EPA) initiated a review of the Clean Water Act rules that govern these discharges, which had not been revised since the 1970s, despite structural and technological changes in some components of the animal agriculture industry that have occurred during the last two decades. A proposal to revise the existing rules was released by the Clinton Administration in December 2000. The Bush Administration promulgated final revised regulations in December 2002; the rules took effect in February 2003.

The final rules were generally viewed as less stringent than the proposal, a fact that strongly influenced how interest groups responded to them. Agriculture groups said that the final rules were workable, and they were pleased that some of the proposed requirements were scaled back, such as changes that would have made thousands more CAFOs subject to regulation. However, some continued to question EPA's authority to issue portions of the rules. Many states had been seeking more flexible approaches than EPA had initially proposed and welcomed the fact that the final rules retained the status quo to a large extent. Environmentalists contended that the rules relied too heavily on voluntary measures and failed to require improved technology.

This report provides background on the 2002 rules, the previous Clean Water Act rules and the Clinton Administration proposal, and perspectives of key interest groups on the proposal and final regulations. It also identifies several issues that could be of congressional interest as implementation of the revised rules proceeds. Issues include adequacy of funding for implementing the rules, research needs, oversight of implementation of the rules, and possible need for legislation.

The revised CAFO rules were challenged by multiple parties, and in February 2005, a federal court issued a ruling that upheld major parts of the rules, vacated other parts, and remanded still other parts to EPA for clarification. In October 2008, EPA issued revisions to the rules in response to the 2005 court decision; for information, see CRS Report RL33656, Animal Waste and Water Quality: EPA's Response to the Waterkeeper Alliance Court Decision on Regulation of CAFOs. .