[House Report 111-407]
[From the U.S. Government Publishing Office]


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\
---------------------------------------------------------------------------
    \1\See Letter from Al Armendariz, EPA Region 6 Administrator, to 
the Honorable John Boozman (Jan. 22, 2010). 


    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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