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Environment Update

January 21, 2003
Volume IV, Number 1

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On January 9, 2003, the administration announced that its top environmental legislative priorities for 2003 are implementing the Clear Skies Initiative, streamlining the National Environmental Policy Act (NEPA), promoting the Healthy Forest Initiative and raising the Environmental Protection Agency (EPA) to cabinet level status.

Senate Environment and Public Works Committee chairman, Senator James Inhofe (R-Okla.), plans to start debate soon on the administration's Clear Skies Initiative. During the 107^th Congress, the Clear Skies proposal, the Democrat's version of multi-emissions legislation (S. 2815 and S. 556 respectively), and Senator Tom Carper's (D-Del.) centrist bill (S. 3135) all failed to advance out of committee. The administration is hopeful that a Republican controlled Congress will improve the chances of passing its initiative. More information on multi-emissions legislation is available in Environment Updates Volume 3, Numbers 5-8 at www.ncsl.org/statefed/EvUMenu.htm.

The administration plans to suggest changes to NEPA, a law that requires environmental review of development projects on federal lands, after a report is completed by a task force created by the administration. In May 2002, the Council on Environmental Quality formed a task force to "improve and modernize NEPA implementation" and to make recommendations on possible regulatory and statutory changes to NEPA. The task force's report is due out in the next few months.

On December 18, 2002, the administration published a proposed revision of a rule regarding the National Forest System. The proposed rule is part of the administration's Healthy Forest Initiative, unveiled in August 2002, that aims to relax environmental review requirements for forest thinning projects on federal lands in an attempt to eliminate risk factors that would contribute to wildfires. The Healthy Forest Initiative directs federal agencies to develop tools that will provide land managers the ability to restore wildfire-damaged areas. Congressional authorization will be needed to implement key components of the Initiative such as:

• Allowing for more timely treatment of forests at risk of catastrophic fire.
• Permitting agencies to enter into long-term stewardship contracts with communities, non-profit organizations or the private sector. These stewardship contracts would allow the organization carrying out forest health restoration work to use forest products in partial compensation for their work.
• Simplifying procedural requirements for the Forest Service so that the agency can respond quickly to rehabilitating or restoring areas damaged by wildland fires.

Environmental advocates claim the initiative will further weaken environmental rules while allowing increased commercial logging on federal lands thereby threatening endangered species and their habitat. The proposed rule is available at www.fs.fed.us/emc/applit/index.htm.

The White House supports legislation (Department of Environmental Protection Act, H.R. 37), recently introduced by Chairman Sherwood Boehlert (R-NY) of the House Science Committee, that would promote the EPA to a cabinet level agency. In past years, the effort has failed.

On December 31, 2002, the EPA published a final rule on major reforms to
the NSR program regarding Platwide Applicability Limits (PALs), pollution control and prevention projects, clean unit provisions and emissions calculation test methodology.

Following publication of the final rule, nine states (New York, New Hampshire, New Jersey, Connecticut, Maine, Massachusetts, Rhode Island, Vermont and Maryland) filed a lawsuit with the U.S. Court of Appeals. The plaintiff states argue that this change in the rule would allow emissions to increase.

Along with the publication of the final rule, the EPA proposed, through a full and open public rulemaking process, a new regulatory definition of routine maintenance, repair and replacement. The proposed rule allows stakeholders to submit public comments until March 3, 2003. Several Senate Democrats have voiced concern about the NSR final and proposed rules. Senators John Edwards (D-S.C.), Joseph Lieberman (D-Conn.) and John Kerry (D-Mass.) plan to offer a rider to the FY2003 omnibus appropriations package that would postpone the administration's final and proposed NSR regulations until the National Academy of Sciences completes a scientific review. (See FY2003 Appropriations Update.) Information on the proposed and final rule can be found on the EPA's website at http://www.epa.gov/air/nsr-review/.

On December 15, 2002, EPA Administrator Christie Whitman, signed the final rule on CAFOs. Administrator Whitman released a statement saying the CAFO rule will significantly improve the way animal manure is managed at large CAFOs. Under the rule, all large and select other CAFOs (beef, swine and poultry) are required to obtain Clean Water Act (CWA) permits, submit an annual report, and develop and follow a plan for handling manure and wastewater. EPA recommends that states use voluntary and incentive based programs to help small and medium operations avoid water pollution problems that would make them subject to the new regulations. Under the previous rule, about 4,500 CAFOs were covered by permits. As a result of the new rule, EPA expects that up to 11,000 additional facilities will be required to apply for permits by 2006. State regulatory agencies with authorized National Pollutant Discharge Elimination System permit programs (45 states, one territory) are principally responsible for implementing and enforcing the rule. Changes must be made within one year after the rule is published in the Federal Register. In cases where a state must amend or enact a statute, such revisions must take place within two years of the rule's promulgation. The final CAFO rule should be published in the Federal Register within a next few weeks. More information on the CAFOs final rule can be accessed on the EPA website at http://cfpub.epa.gov/npdes/afo/cafofinalrule.cfm.

On January 10, 2003, the EPA and the U.S. Army Corps of Engineers released a guidance in an effort to clarify federal CWA jurisdiction resulting in part from the decision of the 2001 Supreme Court Case Solid Waste Agency of Northern Cook County v. Corps of Engineers (SWANCC). The agencies submitted the guidance document as an appendix to the advance notice of a proposed rule making (ANPRM) that seeks comment on how regulators should determine which bodies of water fall under federal jurisdiction and whether the agencies should define, through regulations, the definition of isolated waters. The guidance takes into

consideration court rulings within the past two years that address CWA jurisdiction and identifies factors used to clearly define the term "isolated waters". The Federal Register document and additional information on the program is available on the EPA Office of Water home page at: http://www.epa.gov/owow/wetlands/swanccnav.html.

On January 13, 2003, the EPA introduced a Water Quality Trading Policy that seeks to cut industrial, municipal and agricultural water pollution. The policy aims to encourage states to implement the CWA requirements in more flexible ways by developing water quality trading programs and reducing the cost of improving and maintaining the quality of the nation's waters. The EPA hopes the trading program will provide significant cost savings and will accelerate pollutant reduction efforts. The EPA claims the program could save the municipal wastewater treatment plants millions of dollars by being able to use credits from other water sources that are under their pollution allowance. More information on the Water Quality Trading Policy is available on the EPA website at www.epa.gov/owow/watershed/trading.htm.

When the 108^th Congress convened in January 2003, both Democrats and Republicans introduced climate change legislation. On January 7, 2003, Senate Minority Leader Tom Daschle (D-S.D.) and Senator James Jeffords (I-Vt.) introduced the Global Climate Security Act (S. 17). "We don't have decades to clear our skies of pollution, or to start addressing global warming. The science is there. The authority and the resources are there. Unfortunately, at this time what seems to be lacking is real leadership from the White House," said Senator Jeffords. The legislation would require the federal government to reduce emissions levels by 2013, and would require a report to Congress by July 2005 on the most cost-effective policy options for the federal government to reduce its net greenhouse gas emissions to zero by 2025.

On January 8, 2003, Senators John McCain (R-Ariz.) and Joseph Lieberman (D-Conn.) introduced the Climate Change Stewardship Act (S. 139), to establish a market-based emissions credit trading system to reduce greenhouse gas emissions. The proposal would give companies flexibility in meeting the emission reduction goal of 1990 levels by 2016.

On January 13, 2003, the Public Employees for Environmental Responsibility (PEER) reported that the Department of Defense (DOD) plans to relaunch a campaign to secure congressional approval of DOD's exemption from environmental requirements. The DOD will propose to Congress that the department be exempted from the Clean Air Act; Resources Conservation and Recovery Act; Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); Endangered Species Act; the Marine Mammal Protection Act; and Migratory Bird Treaty Act. DOD first attempted to promote its legislative proposal in April 2002, but Congress only allowed a time-limited exemption to the Migratory Bird Treaty Act in the FY2003 defense authorization bill.

DOD hopes its efforts to promote the proposal will be more successful with the 108^th Congress. The proposal will fall under the jurisdiction of the Military Readiness Subcommittee, a newly created subcommittee under the House Armed Services Committee. The new subcommittee will be chaired by Representative Joel Hefley (R-Colo.) who has stated he is still shaping the subcommittee's priorities but hopes to review the DOD's proposal before March. PEER's press release on the DOD's proposal can be accessed at www.peer.org/press/306.html

On January 8, 2003, the House passed HJ Res 2, shell legislation without spending levels, intended to be a vehicle for the Senate FY2003 appropriations package. Senator Ted Stevens (R-Alaska), chairman of the Senate Appropriations Committee, rolled all eleven remaining appropriations bills into an omnibus package that he proposed as a substitute amendment to HJ Res 2. House and Senate Republican appropriators have informally agreed on appropriations levels that meet President Bush's request to limit spending to $750.7 billion. The Senate hashed out most funding levels the week of January 13, 2003, but the chamber will continue to work through the scheduled recess the week of January 20, 2003 to complete work on the package and address a large number of anticipated amendments. When the Senate convenes on Tuesday, November 21, 2003, Senators John Edwards (D- N.C.), Joseph Lieberman (D-Conn.) and John Kerry (D-Mass.) plan to push a rider that would suspend the administration's final and proposed NSR regulations (published December 31, 2002) until the National Academy of Sciences completes a scientific review. (See article New Source Review (NSR) Final Rule Published in December.) The Stevens amendment appropriates $8.2 billion for EPA in FY2003. However, in order to keep President Bush's spending cap to $750.7 billion, the bill contains a provision that would cut 2.9% of all discretionary program funding. The Senate hopes to pass the Stevens amendment this week and then start conference negotiations immediately.

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Molly Stauffer
Committee Director
(202) 624-3584

Laurie Holmes
Committee Assistant
(202)624-8695