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Key Practice Area - Compliance Excellence - The 112th Congress and its Potential Effect on Environme
Key Practice Area: Compliance Excellence

The 112th Congress and its Potential Effect on Environmental Regulation

April 2011

What are the priorities of the new legislators in the 112th Congress? Learn what we might expect in the coming months with this legislative update from the Bureau of National Affairs Inc.


Congress changes members every two years and with them comes changes in priorities. In this article, John Sullivan, Director of Environment, Health, and Safety News, for BNA, Inc. provides an update on some of the environmental priorities of the 112th Congress of the United States.


The 112th Congress and its Potential Effect on Environmental Regulation

April 2011

The 2010 midterm elections changed the political culture in Washington, D.C. With the 112th United States Congress now underway, John Sullivan, Director, Environment, Health, and Safety News for BNA, Inc. said the new legislators will change the conversation about environmental policy.

"It’s fair to say this new culture will affect the nature of the debate here in Washington,” Sullivan said. "In Congress the divide between Democrats and Republicans is pretty deep, and it’s going to make it difficult to make any significant legislation pass.”

Republicans lead the way in the House, a flip from the Democrat’s majority the previous session. Democrats still lead in the Senate, but with a smaller majority than before.

"Democrats in Congress are just trying to protect their territory, fending off challenges to EPA authority to regulate, not only greenhouse gasses, but a host of other environmental problems,” said Sullivan.

EPA Administrator Lisa Jackson has visited Capitol Hill seven times in February and March and was faced with hostility, mostly from House Republicans.

But Sullivan said, "The EPA isn’t going away despite the headwinds that they’re facing in Congress.”

Greenhouse Gas Regulations
In January, new permitting rules under the Clean Air Act went into effect. These rules address plants that make physical changes that lead to significant increases in greenhouse gas (GHG) emissions. The approach has been tailored to apply to larger facilities only; plants needing permits for other pollutants need to address GHGs and only if GHGs rise by 75,000 tons a year. In July the EPA will expand the prevention of significant deterioration (PSD) requirements to more facilities, including those that would not be covered for other pollutants:

  • All new facilities that emit GHGs in excess of 100,000 tons
  • Existing facilities that make changes that increase emission by 75,000 tons

The EPA estimates that 1,600 permits are needed with the tailoring rule, versus 82,000 new permits, which would overwhelm the agency.

Sullivan said the EPA expects to issue another GHG regulation in July 2012 for smaller emitting facilities. The EPA has indicated there may be possible permitting exemptions for the smallest plants and streamlined permitting.

Proposed new source performance standards are expected in July 2011 for electric generating utilities (EGUs) and in December for refineries.

Another key GHG regulation is the mandatory reporting rule. Reports are required for facilities that emit more than 25,000 tons and should be filed by Sept. 30, 2011.

Not everyone is pleased with all these new regulations.

"Virtually every final rule EPA has issued has been challenged in court and members of Congress are trying to block EPA through legislation,” Sullivan said.

Earlier this year, a House Appropriations Bill proposed to nullify GHG rules for the current fiscal year, but the Senate didn’t pass it. Other Republican-backed bills are out there do permanently nullify the GHG rules, but some Democrats are also seeking to restrain EPA regulations, with actions like delaying permitting rules.

The House may pass some bills to stop or slow EPA, but the Senate would still need to pass it. Plus President Barack Obama holds the trump card with his veto power.

Chemical Regulations

In the past, the EPA has been criticized for not doing enough on chemicals and pesticides, but Sullivan said this is an area where EPA is trying to move aggressively.

In Septembers 2009, the agency outlined the Toxic Substances Control Act (TSCA) reform principles, like more authority of setting the safety standards for chemicals and encouraging green chemistry.

Sullivan also said EPA is developing action plans for risk management efforts for chemicals of concerns, which could mean new regulations. The plans are based on available hazard, exposure and use information and should present specific steps the agency would take to address those concerns.

The agency is also moving towards more transparency about chemicals. Early on in the Obama administration, the EPA signaled they would scrutinize chemical manufacturers’ claims that information about their products should remain confidential (confidential business information (CBI) claims).

Earlier this year, the agency announced they would disclose the names of chemicals listed in health and safety reports submitted to the agency. The EPA has since released the identities of chemicals previously claimed as confidential from health and safety reports. More CBI regulations will likely be released this year.

Under TSCA, the agency can compile a ‘chemicals of concern’ list of chemicals that "may present an unreasonable risk of injury to health or the environment.” Sullivan said the EPA has had this authority since 1976, but is just now using it for the first time. The list is under White House review, but includes categories such as phthalates, polybrominated diphenyl ethers and Bisphenol-A.

If a chemical is placed on the list of concern, Sullivan said experts in the field believe the list would bring about more regulation, like new use notices, removal of certain exemptions and export notifications.

But Sullivan said a bigger concern could be the collateral effects. The various chemicals may be seen as "blacklisted” chemicals. Users may switch to alternatives and states may use the list for regulatory actions.

The EPA uses the inventory update rule to collect information about chemicals, like the identity of compound, volume at which a chemical is made or produced and exposure and use information. Sullivan said the rule is periodically updated, the last time being in 2003.

New reporting is to begin in June, he said, but the final rule isn’t out, and industry is worried they won’t have enough time to prepare. In the proposed rule, manufacturers would have to report information on production and use over multiple years rather than one year. The threshold for reporting also would be lowered—more chemicals than in the past would be included in the new report.

TSCA was enacted 35 years ago and Sullivan said it hasn’t been amended in any significant way since then. Momentum was building in the last Congress to reform the Act, and Sullivan said a bill could get done this year.

"Everyone seems to want TSCA reform, but no one is sure how to get there,” he said.

But he added "the Devil is in the details,” saying finding common ground to satisfy the chemical industry, EPA, environmental health groups and legislators may not happen.

Energy Policy
Congress debates energy every year, but legislating a policy has been elusive, Sullivan said. President Obama has talked about doing energy legislation in bits and pieces, establishing a "clean energy standard.” While the President and some Democrats are trying to push this legislation, Sullivan said there doesn’t seem to be much traction for it in Congress. Under the proposed legislation, utility companies would be required to have a portion of their power generated from renewable sources like wind and solar.

House and Senate Republicans seem more intent on opening up more areas for drilling oil and natural gas. A series of bills to that effect have been introduced:

Proposed Legislation What it does

Putting the Gulf Back to Work Act (HR 1229)

  • Accelerates drilling permits by requiring the EPA to act fairly quickly on permits

Regulation Moratorium Act of 2011 or Reversing President Obama’s Offshore Moratorium Act (HR 1235)

  • Five-year leasing programs must focus on highest potential areas i.e. Atlantic and Pacific coasts and Alaska
  • Leasing programs must set oil and gas production goals

The Domestic Jobs, Domestic Energy and Deficit Reduction Act or The "3-D Act”(S. 706, HR 1287)

  • Opens ANWR
  • Bars EPA from regulating carbon emission on energy projects
  • Requires agencies to issue drilling permits
  • Limits timeframe of environmental and judicial reviews
  • Creates an alternative energy trust fund

While Republicans say they will propose more legislation on renewable energy, nuclear power, onshore production, hydropower, coal, rare earth elements used for renewable energy and other technology, Sullivan said the current pattern of GOP energy bills focuses on more production of oil and gas.

Democrats, on the other hand, want to eliminate tax preferences for the oil and gas industry and hold companies accountable for leasing on public lands.

In a recent speech, Mr. Obama pledged to reduce oil imports by one-third by 2025. He also emphasized natural gas, biofuels and fuel efficiency. Sullivan said he also talked about issues he’s mentioned before, such as the clean energy standard, natural gas and electric vehicles and increasing domestic oil production at existing sites rather than opening up new leases.

"It’s not clear whether there is any room for compromise,” said Sullivan. He said there seems to be support on both sides for incentives for natural gas vehicles and maybe before the Japanese crisis, there was support for more nuclear power.

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