89–008 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 111–407 

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 AdministraVerDate Nov 24 2008 22:51 Feb 01, 2010 Jkt 089008 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\HR407.XXX HR407

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tor’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 


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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 § 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 by RepVerDate Nov 24 2008 22:51 Feb 01, 2010 Jkt 089008 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR407.XXX HR407

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1See Letter from Al Armendariz, EPA Region 6 Administrator, to the Honorable John 

Boozman (Jan. 22, 2010). 

resentative 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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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 


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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). 


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CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

H. Res. 995, as amended, makes no changes in existing law. 

Æ 


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