[DOCID: f:hr407.111]
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111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-407
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RESOLUTION OF INQUIRY REQUESTING THE PRESIDENT TO TRANSMIT TO THE HOUSE
OF REPRESENTATIVES COPIES OF CERTAIN DOCUMENTS IN THE POSSESSION OF THE
ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY
_______
January 29, 2010.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Oberstar, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
[To accompany H. Res. 995]
The Committee on Transportation and Infrastructure, to whom
was referred the resolution (H. Res. 995) of inquiry requesting
the President to transmit to the House of Representatives all
information in the possession of the Administrator of the
Environmental Protection Agency relating to nutrient management
of the Illinois River Watershed, Arkansas and Oklahoma, having
considered the same, report thereon with amendments and without
recommendation.
The amendments are as follows:
Strike all after the resolving clause and insert the
following:
That the House of Representatives requests the President to transmit to
the House of Representatives, not later than 30 days after the date of
adoption of this resolution, copies of all technical and scientific
documentation in the possession of the Administrator of the
Environmental Protection Agency relating to the Administrator's
technical and scientific rationale for the establishment of a total
phosphorus limit of 0.1 milligram per liter for the Northwest Arkansas
Conservation Authority wastewater treatment facility, Arkansas.
Amend the title so as to read:
Resolution of inquiry requesting the President to transmit to the
House of Representatives copies of all technical and scientific
documentation in the possession of the Administrator of the
Environmental Protection Agency relating to the Administrator's
technical and scientific rationale for the establishment of a total
phosphorus limit of 0.1 milligram per liter for the Northwest Arkansas
Conservation Authority wastewater treatment facility, Arkansas.
PURPOSE OF THE LEGISLATION
House Resolution 995, as amended, requests the President to
transmit to the House of Representatives, not later than 30
days after the date of adoption of this resolution, copies of
all technical and scientific documentation in the possession of
the Administrator of the Environmental Protection Agency
relating to the Administrator's technical and scientific
rationale for the establishment of a total phosphorus limit of
0.1 milligram per liter for the Northwest Arkansas Conservation
Authority wastewater treatment facility, Arkansas.
BACKGROUND AND NEED FOR LEGISLATION
H. Res. 995 is a resolution of inquiry that, pursuant to
clause 7 of rule XIII of the Rules of the House of
Representatives, directs the Committee to act on the resolution
within 14 legislative days, or a privileged motion to discharge
the Committee is in order. Under the rules and precedents of
the House, a resolution of inquiry is a means by which the
House requests information from the Executive Branch.
Proposed Clean Water Act discharge standard for NACA wastewater
treatment facility
The central focus of H. Res. 995 relates to the
establishment of a permissible Clean Water Act discharge
standard for phosphorus for the planned Northwest Arkansas
Conservation Authority (NACA) regional wastewater treatment
facility, to be located in Benton County, Arkansas.
For more than three decades, the States of Arkansas and
Oklahoma have been in conflict over the protection of the
Illinois River watershed that runs from northwest Arkansas into
eastern Oklahoma. In the late 1980s, the State of Oklahoma
challenged an Arkansas National Pollutant Discharge Elimination
System (NPDES) permit for a Fayetteville, Arkansas sewage
treatment plant that proposed to discharge into the Illinois
River watershed. In the case of Arkansas v. Oklahoma (503 U.S.
91 (1992)), the U.S. Supreme Court unanimously ruled in support
of a decision by the Environmental Protection Agency (EPA) to
disapprove the Arkansas permit, stating that the phosphorus
limit contained in the permit would likely have violated water
quality standards in the State of Oklahoma in violation of the
Clean Water Act.
Since 2002, the State of Oklahoma has listed the Illinois
River as being impaired for total phosphorus. The State of
Arkansas does not list the Illinois River as impaired for
phosphorus, but, at the direction of EPA, listed Osage Creek, a
tributary of the Illinois River, as impaired for phosphorus.
The Osage Creek is the likely point of discharge for the
proposed NACA wastewater treatment facility.
In 2002, Oklahoma adopted a water quality standard for the
Illinois River that includes a numeric limit for phosphorus of
0.037 milligram per liter (mg/L). The State of Oklahoma has
committed to achieve this standard by June 30, 2012.
In 2003, the States of Arkansas and Oklahoma entered into
``Statement of Joint Principles and Actions'' that committed
both States to ``achieve water quality improvements in the
affected watersheds consistent with Oklahoma's criterion for
total phosphorus [of 0.037 mg/L].'' To that end, the Statement
committed both States to issue interim Clean Water Act NPDES
permits for certain designated facilities along the Illinois
River with discharge limits of 1 mg/L, and to reissue such
permits on a normal five-year cycle ``with the understanding
that NPDES permits . . . issued in the year 2012 or beyond must
include phosphorus limits stringent enough to meet applicable
water quality standards.''
In 2008, the Arkansas Department of Environmental Quality
(ADEQ) proposed to issue a NPDES permit for the NACA facility
at a discharge limit of 1 mg/L phosphorus. Both EPA and the
Oklahoma Department of Environmental Quality (ODEQ) objected to
the permit on the grounds that the proposed discharge would
violate the Clean Water Act requirement that ``[n]o permit may
be issued . . . [t]o a new source or a new discharger, if the
discharge from its construction or operation will cause or
contribute to the violation of water quality standards.'' See
40 CFR Sec. 122.4.
In this instance, both EPA and ODEQ concluded that ADEQ's
proposed discharge limit of 1 mg/L phosphorus for the NACA
facility would violate Oklahoma's water quality standard for
phosphorus of 0.037 mg/L. In addition, EPA believes that the 1
mg/L proposed standard is not stringent enough to meet the
water quality standard for the Osage Creek, Arkansas. EPA has
proposed an alternative discharge standard of 0.1 mg/L
phosphorus for the NACA facility, which it believes would avoid
violation of Oklahoma's water quality standard.
On April 13, 2009, ADEQ revised its proposed permit for the
NACA facility to allow a total phosphorus discharge limit of 1
mg/L until June 30, 2012, but includes a total phosphorus limit
of 0.1 mg/L that becomes effective July 1, 2012. This revised
permit is consistent with concerns raised by EPA and ODEQ. In
light of this revision, on April 16, 2009, EPA formally
withdrew its objections to the proposed NPDES permit for the
NACA facility.
Information requests of Representative Boozman with the Environmental
Protection Agency
The proposed NACA facility is located in the Third
Congressional District of Arkansas, represented by Congressman
John Boozman. Since December 2008, EPA and Representative
Boozman have had an ongoing dialogue regarding the proposed
phosphorus limit, including letters, emails, conference calls,
and face-to-face meetings.
EPA has provided Representative Boozman with five formal
responses to specific questions raised by the Congressman and
his staff. The focus of Mr. Boozman's inquiry has been on: (1)
The scientific basis for establishing a 0.1 mg/L standard,
including the differences in downstream impacts between a 1 mg/
L limit and a 0.1 mg/L limit; (2) the number of wastewater
facilities in the nation that have a 0.1 mg/L limit for
phosphorus; (3) whether EPA is engaged in ``selective
enforcement'' against the NACA facility; and (4) whether other
point sources that discharge into the Illinois River will also
have to adopt a 0.1 mg/L discharge standard.
The concerns raised were addressed in several formal
letters, emails, and discussions between Representative Boozman
and EPA officials. On January 7, 2009, EPA provided
Representative Boozman a November 6, 2008 letter from EPA to
ADEQ, which requested additional information from ADEQ on
whether the proposed discharge limit of 1 mg/L total phosphorus
contained in the draft NACA NPDES permit ``was adequate in a
watershed already impaired by phosphorus, when treatment
technologies are available to achieve a lower limit.'' On
January 19, 2009, EPA followed up with an email that answered
specific questions raised byRepresentative Boozman regarding
the 1 mg/L standard, and the basis for EPA determining that this
standard was insufficient to meet water quality standards.
On January 22, 2009, EPA participated in a conference call
with Representative Boozman regarding the phosphorus limits
proposed in the draft NPDES permit for the NACA facility, and
in which Representative Boozman asked for more detailed
information about the 1 mg/L standard and the EPA permitting
process. On February 5, 2009, EPA provided Representative
Boozman with the information that he requested on the
conference call. On February 7, 2009, Representative Boozman
sent a letter to EPA requesting additional information on the
rationale for the 0.1 mg/L total phosphorus limit, as well as a
list of facilities that have been required to meet this
standard. On February 26, 2009, EPA submitted the additional
requested information to Representative Boozman.
On April 2, 2009, EPA met with Representative Boozman in
Washington, DC, to further discuss his concerns regarding the
0.1 mg/L phosphorus standard. On April 27, 2009, EPA sent a
letter to Representative Boozman answering various questions
posed during the April 2, 2009 meeting, and enclosed a summary
of EPA's modeling efforts that projected the water quality
impacts under various discharge scenarios, a listing of other
states that have similar phosphorus water quality criteria, and
a listing of other permits that contain stringent limits for
phosphorus.
On January 19, 2010, the EPA placed in the Federal Register
a Call for Data for the Illinois River Watershed, Oklahoma and
Arkansas, to gather information to assist EPA in developing a
watershed model to use to determine the phosphorus loads
necessary to meet water quality standards in both States, and
to devise allocations and potential nutrient controls from
point and non-point sources. On January 21, 2010, EPA officials
publicly committed to both Chairman Oberstar and Representative
Boozman to ``open and transparent decision making based on the
best available technical and scientific data and analytical
tools'' and to ensure that Representative Boozman ``completely
understand[s] the data and the technical, scientific, and legal
rationale behind the determination that a total phosphorus
limit of 0.1 mg/L for the NACA wastewater facility is
appropriate to protect applicable water quality standards for
Arkansas and Oklahoma.'' To that end, EPA has offered to brief
Representative Boozman ``on the data, modeling and any other
questions . . . related to this determination'' at a time
convenient to Representative Boozman.\1\
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\1\See Letter from Al Armendariz, EPA Region 6 Administrator, to
the Honorable John Boozman (Jan. 22, 2010).
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
H. Res. 995, as amended, asks for the production of
technical and scientific documentation in the possession of the
Administrator of the EPA relating to the Administrator's
technical and scientific rationale on the establishment of a
total phosphorus limit of 0.1 mg/L for the NACA wastewater
treatment facility, Arkansas. The Committee ordered the
resolution, as amended, reported to the House without
recommendation by voice vote with a quorum present.
SUMMARY OF THE LEGISLATION
H. Res. 995, as amended, requests the President to transmit
to the House, not later than 30 days after the date of adoption
of the resolution, copies of all technical and scientific
documentation in the possession of the Administrator of the EPA
relating to the Administrator's technical and scientific
rationale on the establishment of a total phosphorus limit of
0.1 mg/L for the NACA wastewater treatment facility, Arkansas.
LEGISLATIVE HISTORY AND COMMITTEE CONSIDERATION
H. Res. 995 was introduced on December 19, 2009, and
referred to the Committee on Transportation and Infrastructure.
On January 27, 2010, the Committee met in open session to
consider H. Res. 995. The Committee adopted an amendment to the
resolution by voice vote with a quorum present. The Committee
on Transportation and Infrastructure ordered H. Res. 995, as
amended, reported without recommendation to the House by voice
vote with a quorum present.
RECORD VOTES
Clause 3(b) of rule XIII of the House of Representatives
requires each committee report to include the total number of
votes cast for and against on each record vote on a motion to
report and on any amendment offered to the measure or matter,
and the names of those members voting for and against. There
were no recorded votes taken in connection with consideration
of H. Res. 995, or ordering the resolution, as amended,
reported. A motion to order H. Res. 995, as amended, reported
without recommendation to the House was agreed to by voice vote
with a quorum present.
COMMITTEE OVERSIGHT FINDINGS
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
COST OF LEGISLATION
With respect to clause 3(c)(2) of rule XIII of the Rules of
the House of Representatives, H. Res. 995 is a resolution of
the House of Representatives, and therefore does not have the
force of law. However, there may be minimal costs associated
with this resolution for fiscal year 2010 for the production of
documents.
COMPLIANCE WITH HOUSE RULE XIII
1. With respect to the requirement of clause 3(c)(2) of
rule XIII of the Rules of the House of Representatives, and
section 308(a) of the Congressional Budget Act of 1974, the
Committee advises that the resolution contains no measure that
authorizes funding, so no comparison of the total estimated
funding level for the relevant programs to the appropriate
level under current law is required.
2. With respect to the requirement of clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, the
Committee advises that the resolution contains no measure that
authorizes funding, so no statement of general performance and
objectives for any measure that authorizes funding is required.
3. With respect to the requirement of clause 3(c)(3) of
rule XIII of the Rules of the House of Representatives and
section 402 of the Congressional Budget Act of 1974, the
Committee advises that the resolution contains no measure that
authorizes funding, so no cost estimate nor comparison for any
measure that authorizes funding is required.
COMPLIANCE WITH HOUSE RULE XXI
Pursuant to clause 9 of rule XXI of the Rules of the House
of Representatives, the Committee is required to include a list
of congressional earmarks, limited tax benefits, or limited
tariff benefits, as defined in clause 9(e), 9(f), and 9(g) of
rule XXI of the Rules of the House of Representatives. H. Res.
995 does not contain any earmarks, limited tax benefits, or
limited tariff benefits under clause 9(e), 9(f), or 9(g) of
rule XXI.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, H. Res. 995 is a resolution of the
House of Representatives, and therefore does not have the force
of law. As such, clause 3(d)(1) of rule XIII does not apply.
FEDERAL MANDATES STATEMENT
H. Res. 995, as amended, contains no Federal mandates.
PREEMPTION CLARIFICATION
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local,
or tribal law. The Committee states that H. Res. 995, as
amended, does not preempt any state, local, or tribal law.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act are created by this
legislation.
APPLICABILITY TO THE LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (P.L. 104-1).
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
H. Res. 995, as amended, makes no changes in existing law.
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