House Science Committee Chairman Ralph Hall (R-TX) is suggesting a new approach for EPA to address air toxics from power plants and boilers, offering a rider to the fiscal year 2011 continuing resolution (CR) that urges EPA not to regulate hazardous air pollutants (HAPs) other than mercury from those sources until EPA and the National Academy of Sciences (NAS) conduct a "comprehensive review" of such rules' health and economic impacts.
Hall's amendment, which the House Parliamentarian ruled was out of order because it sought to legislate on an appropriations bill, comes as other Republicans are seeking to block EPA from issuing its boiler rule, which is due for release in the coming days. EPA is poised to propose its rule setting maximum achievable control technologies (MACT) standards for utilities next month.
Hall's amendment appears to be as a marker for future efforts that the lawmaker is planning to scrutinize EPA's regulatory process through oversight hearings, and potentially additional legislation. A House GOP aide says EPA would be free to propose and finalize its MACT rules, even if the amendment passes, but suggests that the completed EPA-NAS study could provide additional ammunition to opponents of those rules if it undercut EPA's justifications or showed the rules benefits did not outweigh their costs.
The amendment offered Feb. 15 is one of a number of riders GOP lawmakers are offering to the CR to restrict EPA's air, waste, water, climate and other rules. House GOP leaders have said they hope to complete debate on the CR by Feb. 17.
Other riders would bar EPA from regulating "articles" under chemicals law, prohibit EPA from issuing rules to cut greenhouse gases (GHGs) from stationary sources, and eliminate various environment-related government positions such as the White House energy and climate adviser slot held by Carol Browner, who is leaving the administration.
Environmentalists are warning about the restrictions that the riders would place on EPA, and some Democrats including Rep. Jared Polis (CO) have offered amendments to protect the agency's authority. Other Democratic riders aim to direct millions of dollars in agency funding, such as water grants for rural communities.
The CR currently funding the government expires March 4, and lawmakers at press time were debating the GOP's legislation to extend the resolution through the end of the fiscal year, which ends Sept. 30. Broadly, the resolution would cut EPA's budget by $3 billion from its FY10 level of around $10 billion.
Hall's amendment to the CR would order EPA and NAS to enter into a contract to spend no more than two years performing "a comprehensive review of non-mercury hazardous air pollutants, or air toxics, emitted by electric generating units and industrial boilers, and related health and economic data (including impacts on job creation and energy price, supply, and reliability) associated with potential regulation of non-mercury" HAPs.
The rider -- not voted on at press time -- directs NAS to recommend "appropriate regulatory standards" and "establish appropriate health-based exposure standards" for non-mercury HAPs.
Until completion and review of the two-year study, EPA "is discouraged from issuing any regulatory determination" for non-mercury HAPs, including a maximum achievable control technology (MACT) standard for power plants or boilers. EPA is crafting a MACT to cut mercury emissions from power plants after a federal appeals court rejected the Bush EPA's mercury cap-and-trade emissions rule designed to avoid a HAP rule.
Hall's amendment appears to echo industry concerns with EPA's upcoming rules. The American Public Power Association (APPA) -- representing public utilities -- is slated to consider a resolution at a March 1 meeting of APPA's legislation and resolutions committee in Washington, D.C. that would urge EPA to limit the utility MACT to mercury emissions and not other HAPs. The Minnesota Municipal Utilities Association is sponsoring the resolution.
Some industry groups have also suggested that EPA may not be able to collect information from utilities on air toxics other than mercury because EPA has not formally determined that the sector is a significant source of such pollutants.
But EPA is seeking to downplay industry concerns about the rule. She told state utility regulators Feb. 14 that EPA would seek to provide flexibility.
And environmentalists are panning the suggestion that air toxics need additional study before they can be regulated. Natural Resources Defense Council Clean Air Director John Walke said during a Feb. 15 conference call that it was a "classic maneuver to study an issue to death" and predicted it was laying the groundwork for an amendment to prohibit EPA from issuing new air toxics rules either once the CR goes to conference or in future legislation. "This amendment . . . is directly aimed at subverting that process and [EPA's rulemakings]," he said.
Other GOP Amendments
Another GOP amendment to the CR would block EPA from exercising little-used authority under the Toxic Substances Control Act (TSCA) to regulate "articles" and other products containing industrial chemicals. Freshman Rep. Cory Gardner (R-CO) offered the amendment, prohibiting EPA from using funds to "propose, finalize, implement, or enforce any regulation that includes any article or substance" under TSCA.
The amendment comes as EPA is stepping up its efforts to regulate articles under TSCA, after legislation that would have explicitly granted the agency such authority failed in the last Congress. Industry sources have raised concerns that EPA's efforts could set a broad precedent expanding its regulatory reach.
Additionally, a Rep. John Carter (R-TX) amendment would eliminate various positions within the administration, including EPA's senior adviser for the Great Lakes Restoration Plan; the White House's assistant to the president for energy and climate change, the position held by Browner; and the Council on Environmental Quality's special adviser for green jobs. Carter's amendment does not eliminate the State Department's special envoy for climate change, who represents the United States in international climate treaty negotiations; an amendment offered Feb. 14 by Rep. Steve Scalise (R-LA) would have cut that position, currently held by Todd Stern.
Rep. Ted Poe (R-TX) offered an amendment furthering the bill's limits on EPA's GHG authority. As introduced, the CR would prevent stationary source limits on "emissions of greenhouse gases due to concerns regarding possible climate change." Poe's amendment would specify what GHGs EPA would not be able to regulate -- carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, hydrofluorocarbons (HFCs), or perfluorocarbons (PFCs) – after Jan. 1, 2011, and does not limit regulations to concerns over climate change, potentially preempting additional limits on HFCs and PFCs related to their effect depleting the ozone layer.
Rep. Don Young (R-AK) also offered an amendment Feb. 15 to prevent EPA's Environmental Appeals Board (EAB) from reviewing any permit to sources drilling offshore or along the arctic coast. The amendment is the second from Young aimed at helping Shell proceed with stalled offshore oil exploration in Alaska; an amendment introduced Feb. 14 would exempt the Alaskan arctic from clean air act requirements.
An amendment offered Feb. 14 from Rep. Bob Goodlatte (R-VA) would block EPA from implementing its landmark pollution diet for the Chesapeake Bay watershed.
Democrats Offer Riders
Democratic amendments related to EPA include efforts to steer agency funding to specific projects or issues, and attempts to ensure that GOP riders blocking GHG rules would not harm other, more popular programs.
A rider from Rep. Peter Welch (D-VT) would require $15 million in EPA funding from Safe Drinking Water Act (SDWA) technical assistance grants go to small rural communities. And Rep. James Clyburn (D-SC) would devote 10 percent of state and tribal assistance grant (STAG) funds to "persistent poverty counties."
Rep. Bruce Braley (D-IA) offered a rider to amend the prohibition on EPA's climate regulations to clarify that it would not prohibit implementation or enforcement of the agency's renewable fuel program. -- Nick Juliano
Editor's Note: This story has been updated to reflect floor action on the amendment.
EPA Suggests Lengthy Implementation Plan For Stormwater Retrofits
FT. LAUDERDALE -- A top EPA official is suggesting that the agency may provide municipalities and other stormwater sources a lengthy implementation period in cases where EPA requires retrofits to existing facilities to comply with new permit and regulatory measures to limit stormwater flows.
Connie Bosma, who heads the municipal branch of EPA's Office of Water, told a conference of the National Association of Clean Water Agencies (NACWA) here Feb. 2 that she believes that the agency, if it decides to include retrofitting requirements in its forthcoming stormwater rule, would likely extend the implementation schedules in order to accommodate cost considerations.
"If we do include this requirement, I am guessing it's going to be a very long period of time that people get to implement . . . the plan," Bosma said.
But Bosma said that the agency considers the retrofit provision to be a vital part of its stormwater rule, because without it the agency would only be able to maintain current water quality rather than improve it. The other provisions the agency is considering for the rule -- such as expanding the jurisdiction of municipal separate storm sewer system (MS4) permits and including stormwater management requirements for new construction -- would help keep the overall amount of stormwater pollution stable, it would not have the effect of reducing runoff pollution, she said.
"If we establish and implement post-construction standards for new and redevelopment, we will not be -- and this is especially in urbanized areas -- we might keep the status quo in terms of water quality, but we won't be improving it," Bosma said. "So in order to improve water quality, we may need to establish retrofit programs to retrofit stormwater practices on sites."
While utilities and states have been conditionally receptive to the idea of expanding MS4 jurisdiction and establishing redevelopment requirements in the stormwater rule, they have long been hostile to the inclusion of retrofits, citing the considerable cost that would be associated with applying stormwater management controls to sites that are not undergoing any other manner of construction or redevelopment.
Nathan Gardner-Andrews, NACWA's general counsel, told the association's stormwater committee Feb. 1 that NACWA has voiced concerns to EPA about the retrofit provision, and said that utilities' preference would be that EPA not include retrofits in the stormwater rule at all.
If EPA does choose to include retrofit requirements, Gardner-Andrews said, EPA would have to require permitting authorities to demonstrate that retrofits would have a noticeable improvement on water quality, and if they did so, EPA would have to include additional funding assistance to permittees to implement the retrofits. Gardner-Andrews also said that development and implementation schedules would have to be very long-term in order to keep costs down to a level that water utilities can manage.
"If EPA decides to pursue the retrofit requirement, we've made it very clear with them that they need to provide significant, significant time frames for cities to develop and implement retrofits," Gardner-Andrews said. "We suggested that five years would be the minimum to develop a plan, and 30 years would be the be the minimum for implementation, understanding that that time period can significantly be lengthened to meet the circumstances of a permittee or municipality."
An EPA source says the scope of the implementation schedule that the agency is considering was somewhere between five and 20 years.
Bosma added during her presentation that the retrofit requirement would likely include other mitigating provisions as well, such as tailoring permit requirements to meet the circumstances of a given community. For example, a community that is experiencing a great deal of growth could have a requirement that focuses more on redevelopment projects rather than "true retrofits," or improving stormwater management for sites that are already complete. For communities that are not experiencing as much growth, the permits could focus more on retrofitting existing sites.
Bosma said the agency heard during its listening sessions on the rule last year that there is considerable concern from states, municipalities and permit holders about the cost implications that the stormwater rule could pose, and that the agency is looking for comments on ways to make the rule's cost burdens less intensive. But Bosma also said that when EPA did a survey of MS4 permits, they found that 41 percent of phase I and 20 percent of phase II permittees already have some form of retrofit program in place, and the agency intends to use those plans as a possible model for the EPA retrofit rule.
"I was a little bit surprsised at how high those numbers are, and what we're planning on doing is calling some of those to give more information about what their retrofit plan looks like," Bosma said. -- John Heltman