Order Code IB10004
CRS Issue Brief for Congress
Received through the CRS Web
Clean Air Act Issues in the 106th
Congress
Updated December 21, 1999
James E. McCarthy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Issues in the 106th Congress
Implementation of the National Ambient Air Quality Standards
Mobile Sources and Fuels
Regional Haze
Risk Management Plans
Sanctions and “Conformity”
Ozone Transport Rule
LEGISLATION
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING
CRS Issue Briefs
CRS Reports

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Clean Air Act Issues in the 106th Congress
SUMMARY
EPA decisions regarding implementation
The Clean Air Act and its 1990 amend-
of programs mandated by the Clean Air Act
ments appear to have contributed to a marked
and court challenges to those decisions will
improvement in air quality nationwide. Los
provide numerous opportunities for oversight
Angeles, for example, while still far from
in the 106th Congress. Also, a Senate subcom-
attaining air quality standards, had cleaner air
mittee has begun hearings concerning
in 1999 than at any time since measurements
reauthorization of the Act. These hearings are
began in the 1940s. Nationwide, more than
expected to continue next year.
half of the areas not meeting air quality stan-
dards for ozone in 1990 now do so. Even
Congress last enacted major amendments
greater progress has been achieved with car-
to the Clean Air Act in 1990, and the Environ-
bon monoxide: 36 of 42 areas not in attain-
mental Protection Agency (EPA) is in the
ment in 1990 now meet the standard.
midst of implementing numerous provisions of
those amendments. Current efforts include
While substantial progress has been
development of tighter emission standards for
made, numerous issues remain on the horizon.
vehicles and fuels, promulgation of programs
Included are controversies over the use of
to control regional haze and ozone transport,
MTBE, an additive that makes gasoline burn
implementation of controls on sources of 188
more cleanly, but has been implicated in inci-
air toxics, preparation for Phase 2 of the acid
dents of ground water contamination; the
precipitation program, and approval of state
degree to which sulfur should be regulated in
implementation plans for the ozone standards.
gasoline; a variety of decisions regarding long-
distance ozone transport, including the desir-
In addition, the Agency promulgated
ability of additional regulation for sources of
major revisions to the ambient air quality
nitrogen oxides (chiefly electric utilities); the
standards for ozone and particulates in 1997,
timetable for additional, so-called Tier 2 con-
an action that would have required most states
trols on auto and light truck emissions; and
and urban areas to establish additional controls
whether plans for new highways must conform
on a wide range of pollution sources. The
to emission budgets under the Clean Air Act.
revised standards were challenged by numer-
ous parties and are currently in limbo, pending
The current Congress has already taken
resolution of appeals.
action on one Clean Air Act issue. On August
5, 1999, the President signed S. 880 (P.L.
106-40), a bill that modified the Act's risk
management planning requirement for facilities
that handle extremely hazardous substances.
Note: This Issue Brief does not discuss the
“greenhouse effect” or issues related to global
climate change. For a discussion of those
issues, see CRS Issue Brief IB89005, Global
Climate Change, updated regularly.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On September 29, the Senate Environment and Public Works Committee ordered
reported an amended version of S. 1053. The bill would ease Clean Air Act restrictions on
the funding of highway projects that do not conform with plans for achieving air quality
standards. On September 30, the House Commerce Subcommittee on Health and
Environment approved an amended version of H.R. 11, a bill to exempt California
reformulated gasoline from federal requirements that it contain at least 2% oxygen. The
oxygenate requirement has led most refiners to use an additive called MTBE, which has
contaminated ground and surface waters in California and other states.
On October 29, the U.S. Court of Appeals for the District of Columbia Circuit denied
EPA's request for a rehearing on its decision in American Trucking Associations v. EPA.
The denial leaves standing a May 1999 decision that remanded the Agency's new air quality
standards for ozone and particulates. An appeal to the Supreme Court is considered likely.
Several important regulatory decisions have also been made recently. On December
21, the President announced new so-called “Tier 2" standards for auto and light truck
emissions and for sulfur in gasoline. On December 17, EPA took action under Section 126
of the Clean Air Act, approving petitions from four Northeast states to control the transport
of nitrogen oxides from 392 stationary sources in 12 states and the District of Columbia.
This action achieves some of the results that would have come from the Agency’s Ozone
Transport Rule, which has been stayed pending resolution of a court challenge.
BACKGROUND AND ANALYSIS
The Clean Air Act requires the Environmental Protection Agency (EPA) to establish
minimum national standards for air quality, and assigns primary responsibility to the states to
assure compliance. Areas not meeting the standards, referred to as nonattainment areas, are
required to implement specified air pollution control measures. The Act establishes federal
standards for autos and other mobile sources of air pollution, for sources of 188 hazardous
air pollutants, and for the emissions that cause acid rain. It establishes a comprehensive
state-run permit system for all major sources of air pollution. It also addresses the prevention
of pollution in areas with clean air, as well as protection of the stratospheric ozone layer.
The last comprehensive amendments to the Act, enacted November 15, 1990 (P.L.
101-549), included the program to control acid rain, new standards for emissions of
hazardous air pollutants, new requirements for motor vehicles and fuels, and stringent new
requirements for nonattainment areas.
Many of these provisions (notably the acid rain and air toxics provisions, and some of
the requirements for autos and fuels) were strenuously debated, but most have not been
subject to controversy since enactment. The new provisions on acid rain, air toxics,
cleaner-burning gasoline, and automobiles have generally been implemented on schedule, in
many cases at less cost than anticipated. There have also been noticeable improvements in
air quality in recent years: of 98 metropolitan areas not attaining the 1-hour ozone standard
in 1990, more than half now do so. Even greater progress has been achieved with carbon
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monoxide: 36 of the 42 areas not in attainment in 1990 now meet the standard. Nevertheless,
major controversies remain concerning implementation of the Act.
Issues in the 106th Congress
Implementation of the National Ambient Air Quality Standards
On May 14, 1999, the U.S. Court of Appeals for the D.C. Circuit, in a case filed by the
American Trucking Associations and 37 other plaintiffs, overturned National Ambient Air
Quality Standards for ozone and particulates promulgated by the Environmental Protection
Agency in 1997. EPA's request for a rehearing was denied October 29.
Under the Clean Air Act, EPA sets national standards for ambient (outdoor) air quality,
and is directed to review the standards every 5 years. On July 18, 1997, the Agency
completed its review of 2 of the 6 standards, promulgating a new standard for fine
particulates (referred to as PM ) and revised standards for ozone and coarse particles
2.5
(PM ). (For background on the standards, see CRS Report 97-8, Air Quality: Background
10
Analysis of EPA’s 1997 Ozone and Particulate Matter Standards.)
The net impact of the promulgated standards would be increased stringency. Analyses
by interested parties have indicated that many areas now considered to be in compliance with
the National Ambient Air Quality Standards (NAAQS) for ozone and particulates would not
meet the new standards. EPA has been reluctant to project the number of counties likely to
be in nonattainment, since the actual determinations for ozone would be made using
monitoring data for 1997-1999 or later periods; in the case of PM , a monitoring network
2.5
will not be complete until 2000, so lists of nonattainment counties are even more tentative.
Nevertheless, for PM , the Agency estimates that about 150 U.S. counties would not have
2.5
met the standard in 1997, versus 41 under the current requirement. For ozone, the number
of counties out of attainment under the new standard has been estimated to nearly triple, from
106 to about 300.
Such an increase in the number of nonattainment areas would have broad implications
for the states, affected industries, economic sectors such as agriculture and transportation,
and individuals. As a result, Congress has remained interested in the standards and decisions
regarding their implementation. Industry and business interests, led by the National
Association of Manufacturers and the American Petroleum Institute, had urged that the ozone
and PM standards not be tightened, claiming excessive costs, lack of significant demonstrable
benefits, loss of competitiveness, and technical infeasibility. Since promulgation of the
standards, at least 38 groups have sued EPA to overturn them. At the same time, health and
environmental stakeholders either have supported the new standards or have proposed
tightening them further, while state reactions have been divided.
As noted, on May 14, the U.S. Court of Appeals for the D.C. Circuit remanded both the
ozone and particulate standards (American Trucking Associations v. Environmental
Protection Agency). In a split decision (2-1), the court ruled that EPA had unconstitutionally
usurped legislative powers. In Sections 108 and 109 of the Clean Air Act, Congress directed
EPA to establish ambient air quality standards necessary to protect public health with an
adequate margin of safety. But the court found that EPA exercised legislative discretion in
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actually setting the ozone and PM standards, since it was not clear from the statute or from
EPA’s interpretation of it where the standard should be set. “Although the factors EPA uses
in determining the degree of public health concern associated with different levels of ozone
and PM are reasonable, EPA appears to have articulated no ‘intelligible principle’ to channel
its application of these factors; nor is one apparent from the statute,” according to the
opinion.
The court also considered several other issues — rejecting five arguments the plaintiffs
made regarding both standards, but finding in favor of the plaintiffs on various issues specific
to one or the other standard. Regarding ozone, the court ruled that the 1990 Clean Air Act
Amendments preclude EPA from enforcing a revised ozone standard as a result of language
in Section 181(a) that requires all nonattainment areas to be classified on the basis of the old
1-hour ozone standard. The court also held that the Agency erred in not considering possible
benefits of ground-level ozone in its analysis of the health effects of the pollutant. Regarding
particulates, the court concluded that EPA’s choice of PM as the indicator for coarse
10
particles was arbitrary and capricious. The court concluded that there was “ample support”
for the Agency’s decision to regulate coarse particles, but argued that the Agency needed to
choose an indicator such as PM
(particles smaller than 10 microns but larger than 2.5)
10-2.5
rather than PM (all particles smaller than 10 microns, including fine particles) in its
10
regulations aimed to control the coarse fraction.
The 105th Congress conducted a number of oversight hearings on standards-related
issues, and enacted legislation (P.L. 105-178, Title VI) to address some of the concerns
raised. The legislation codified EPA’s announced implementation schedule, giving the
Agency until July 2000 to designate ozone nonattainment areas and December 2005 to
designate PM areas (the schedule was longer than that mandated under the Clean Air Act,
2.5
and some had feared that EPA would be forced by court challenges to implement a speedier
schedule). Beyond concerns over implementation, many in Congress remain concerned that
the ozone standard is too strict and will not achieve improvements in public health
commensurate with its cost. Many have also questioned the fine particle standard —
particularly whether the Agency had sufficient information to determine the appropriate level
of the standard, and whether the observed health effects noted in the underlying research were
caused by fine particles of all kinds or by some specific subset. The court’s decision did not
support many of the specific concerns raised, but its effect is likely to be a delay in
implementation of the standards. How long will depend on the results of further appeals.
After reviewing the court’s decision, EPA Administrator Browner categorized it as
“extreme, illogical, and bizarre.” Since numerous environmental statutes give discretion to
the Administrator similar to that termed unconstitutional in this decision, the decision — if
left unchallenged — could reshape dramatically EPA’s authority to promulgate regulations.
Acting on EPA's behalf, the Justice Department requested a rehearing by the full (en banc)
Court of Appeals, but the court rejected the request October 29. An appeal to the Supreme
Court is now considered likely. (For a further discussion of the court’s ruling, see CRS
Report RS20228, The D.C. Circuit Remands the Ozone and Particulate Matter Clean-Air
Standards: American Trucking Associations v. EPA, June 10, 1999.)
Although legislation on the standards may be introduced, Congress is likely to function
as an interested observer until the appeals process runs its course. Nevertheless, the case
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raises important issues regarding congressional delegation of authority that Members may
wish to address at some point in the future.
Mobile Sources and Fuels
Two issues related to automobiles and their fuels have attracted congressional interest
in the 106th Congress: the continued use of methyl tertiary-butyl ether (MTBE) as an additive
in cleaner burning gasoline, and the sulfur content of fuels.
MTBE and Reformulated Gasoline. The Clean Air Act Amendments of 1990
required numerous areas with poor air quality to add chemicals called “oxygenates” to
gasoline as a means of improving combustion and, thus, reducing emissions. The most
commonly used of these oxygenates is MTBE. A little more than 30% of the gasoline sold
in the United States contains oxygenates, and of this, 76% contained MTBE in 1997.
State and local environmental agencies and EPA attribute marked improvements in air
quality to the use of oxygenated and reformulated gasoline (RFG). The improvements in
measured air quality have not come without controversy, however. In Alaska and Wisconsin,
residents complained of a wide array of effects, including headaches, dizziness, nausea, sore
eyes, and respiratory irritation, from exposure to gasoline/MTBE exhaust, before refiners
switched to alternative gasoline formulations using ethanol. MTBE from a number of
sources, including leaking underground storage tanks, has also been linked to contamination
of drinking water supplies.
For a variety of reasons, concerns over MTBE have recently focused on California.
California has the most extensive reformulated gasoline requirements in the country, with
state requirements separate and in addition to the federal. In addition, it has experienced the
most significant contamination of drinking water by MTBE. The incidents of drinking water
contamination led the state legislature in October 1997 to enact legislation to require state
standards for MTBE in drinking water and to require the University of California (UC) to
conduct a study of the health and environmental effects of MTBE. The UC report, issued in
November 1998, recommended a gradual phase-out of MTBE use in the state. Based on the
report and on subsequent public hearings, on March 25, 1999, Governor Davis of California
signed an Executive Order to require a phase-out of MTBE use in the state by December 31,
2002, and requested a waiver of federal requirements to use oxygenates in reformulated
gasoline. EPA has entered discussions with the state, but at a May 6 House Commerce
subcommittee hearing, the Agency expressed uncertainty whether it has authority under the
circumstances to grant the requested waiver. Without a waiver, ozone nonattainment areas
in the state will be required to substitute another oxygenate (most likely, ethanol) when the
MTBE ban takes effect.
The MTBE issue received additional attention in late July when an advisory panel
reported to EPA Administrator Carol Browner. The Blue-Ribbon Panel on Oxygenate Use
in Gasoline, composed of industry representatives, state and local officials, environmentalists,
academics, and others, recommended that Congress remove the RFG program’s oxygenate
requirement and clarify state authority to regulate gasoline components. Subsequently, on
August 4, the Senate adopted by voice vote Senator Boxer's amendment to the FY2000
Agriculture appropriations bill (S. 1233) expressing the sense of the Senate that use of MTBE
should be phased out.
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The principal issue for Congress is whether Clean Air Act provisions concerning
reformulated gasoline should be modified to allow refiners to discontinue or lessen their use
of oxygenates. Legislation to permit California refiners to do so (H.R. 11 / S. 266) has the
nearly unanimous support of that state’s congressional delegation. The legislation would
provide additional flexibility to refiners and marketers of RFG in California only — not in
other states. The House Commerce Subcommittee on Health and Environment approved
H.R. 11, with an amendment, September 30. Amendments to phase out the use of MTBE,
to apply the bill's provisions to areas outside California, and to address international trade
issues related to MTBE phase-out were offered and withdrawn during markup, and may need
to be addressed before the bill is considered by the full committee. Separate legislation
allowing additional flexibility in all states (S. 645, S. 1886, and H.R. 3449) has also been
introduced, as have four bills (H.R. 1367, H.R. 1398, H.R. 1705, and S. 1037) that would
phase-out or ban the use of MTBE in gasoline. (For additional discussion of the MTBE issue,
see CRS Report 98-290, MTBE in Gasoline: Clean Air and Drinking Water Issues.)
Sulfur in Gasoline and Tier 2 Emission Standards. Section 202(i) of the Clean Air
Act required EPA, after implementing tighter emission standards for autos and light trucks
in 1994-1996 (so-called Tier 1 standards), to study the need for further (Tier 2) reductions,
the availability of technology to achieve such reductions, and the cost-effectiveness of such
technology. The Agency was required to submit a report to Congress by June 1, 1997,
containing the results of the study, and, if stricter standards were needed, to make that
determination by December 31, 1999. On August 4, 1998, the Agency submitted its report
to Congress. In it, the Agency concluded that further reductions in emissions are needed, that
technology exists to make those reductions, and that the technologies can be applied cost-
effectively.
On December 21, 1999, President Clinton announced the promulgation of new standards
under this authority. These standards, the Tier 2 standards, will regulate autos and light
trucks and set new requirements limiting sulfur in gasoline. (The final standards will appear
in the Federal Register at a future date, but are similar to the standards proposed in the
Federal Register May 13. For a discussion of the proposed standards, see CRS Report
RL30298, Air Quality and Motor Vehicles: An Analysis of Current and Proposed Emission
Standards.) The new standards are expected to reduce emissions 77-95% below Tier 1
standards. They will be phased in over a period of 6 years, beginning in 2004; at the end of
the period, in 2009, sport utility vehicles, vans, and trucks weighing up to 8,500 pounds will
have to meet the same emission standards as cars for the first time.
The new standards will regulate not only vehicle emissions, but also the sulfur content
of gasoline. Recent studies by a number of sources indicate that the performance of catalysts
in vehicle emission control systems is negatively affected by the presence of sulfur. Sulfur,
a contaminant naturally present in crude oil, competes with other pollutants for “space” on
the active surface of the catalyst, limiting the catalysts’s ability to convert pollutants such as
nitrogen oxides and hydrocarbons to less harmful gases. Sulfur also interferes with the
operation of oxygen sensors, which are key elements of the on board diagnostic systems used
to determine whether vehicle emission control systems are functioning properly.
The sulfur content of gasoline in the United States averages about 340 parts per million
(ppm). Reducing sulfur content to 30 ppm, as required in California, would cut nitrogen
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oxide emissions in half in new vehicles, and reduce hydrocarbon emissions by significant
amounts as well, without any change in emission control technology.
Whether sulfur causes permanent damage to catalysts or its effects are reversible once
the catalyst is exposed to lower sulfur exhaust is a key question on which differing views have
been expressed. The answer depends on a number of factors including the catalyst design and
location, the richness of the fuel mixture, engine calibration and load, and the amount of sulfur
in the fuel. If the damage is permanent, national year-round reductions in sulfur would appear
more desirable. If not, regional and seasonal controls might achieve the desired effects.
In anticipation of the Tier 2 proposal, a number of parties, including auto manufacturers
and most states, urged EPA to set strict national standards for fuel sulfur content. Petroleum
refiners, supported by 9 Western and Midwestern states, argued for less stringent and more
localized controls. In general, the rule leans toward the position staked out by the former
group, setting a nationwide standard of 30 ppm in 2004, but with additional time provided
for small refiners to achieve compliance. It is similar to requirements that would be set by
legislation introduced by Senator Moynihan (S. 171) and Representative Kildee (H.R. 888).
With the auto industry, environmentalists, and most states largely pleased with the rule,
objections have come mostly from the petroleum industry and from states where oil is
produced and refined. A Senate Environment subcommittee held three days of hearings on
the proposal May 18, May 20, and July 29, and a House Science subcommittee held a hearing
July 21. As of the end of the first session, however, no legislation had been introduced to
scale back the proposal. (For additional information, see CRS Report RS20163, Sulfur in
Gasoline, updated July 12, 1999.)
Regional Haze
On April 22, 1999, Vice President Gore announced a final rule implementing a much-
delayed program to reduce regional haze. (The rule appeared in the Federal Register July 1.)
Under the rule, which was required by Section 169A of the Clean Air Act, states must
develop plans to improve visibility in what are called Class I areas (national parks and
wilderness). Progress must be demonstrated at 10-15 year intervals, but states will have until
2064 to return visibility to pristine levels.
Regional haze is caused by the presence of small particles in the air. These particles
absorb and scatter sunlight, reducing contrasts, washing out colors, and making distant
objects indistinct or invisible. Because of this pollution, the current visual range in the eastern
United States is only about 20 miles, about one-fifth of the range one could expect in the
absence of air pollution. In the West, visibility is better, ranging up to 90 miles, but even
there it is only half to two-thirds of its natural range.
Emissions from utilities, smelters, mobile sources, manufacturing, construction activities,
and prescribed burning of agricultural lands and forests all contribute to the formation of
regional haze and all could be subject to regulation under the program. Addressing the
problem will require planning on a regional basis and will involve measures in all 50 states.
When proposed in July 1997, the regional haze rule ignited substantial controversy.
Issues included the potential impacts on economic sectors (particularly agriculture and electric
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utilities), the choice of methodology for measuring improvements in visibility, what
constitutes the “reasonable further progress” required by the Act, and whether EPA paid
sufficient attention to the recommendations of the Grand Canyon Visibility Transport
Commission, an advisory body consisting of the governors of 8 Western states and 5 Indian
tribes which undertook a 5-year study of visibility issues on the Colorado plateau. A public
comment period on the proposed rule expired in December 1997, but after criticism from a
number of governors and congressional sources, EPA reopened the period for an additional
30 days in September 1998. In the reopened period, the Agency sought comments on
language proposed by Western governors to facilitate the recommendations of the Grand
Canyon Commission.

The final rule is substantially changed from the one originally proposed, and appears to
have resolved much of the controversy. It will require the states to submit revised State
Implementation Plans detailing the steps they will take to improve visibility. In the proposal,
the goal was for each state to improve visibility by one “deciview” (a measure of visibility)
every 10 to 15 years. Environmental groups and others complained that this measure of
progress would leave many areas in the eastern half of country with impaired visibility for as
long as two centuries, while subjecting areas in the West to more stringent controls. In the
final version, the goal has been changed to give all states until 2064 to return visibility in Class
I areas to background levels. In response to criticism that the proposal ignored
recommendations of the Grand Canyon Commission, the final rule incorporates the Western
governors’ proposed language and deems it sufficient to meet the rule’s requirements.
Congress may still be interested in the potential impacts of the program on Western
states, particularly the extent to which controls will be required on agriculture, electric
utilities, and industrial sources of pollution. The role to be played by federal land managers
through prescribed burns in national forests and on other public lands may also be of concern.
Several hearings on these issues were held in the 105th Congress, and more are possible in the
106th.
Risk Management Plans
One Clean Air Act issue that has been the subject of enacted legislation in the 106th
Congress is the requirement in Section 112(r) of the Act that operators of stationary sources
which produce, process, handle, or store certain extremely hazardous substances prepare risk
management plans. The plans are required for facilities that possess more than threshold
levels of any of 77 acutely toxic substances or 63 flammable gases; more than 64,000
facilities were believed to be covered by the requirement when it was promulgated. The plans
had to be submitted to EPA by June 21, 1999, and the Act requires that they be made
available to the public.
An issue raised by these regulations that generated substantial numbers of complaints
was the inclusion of small businesses that use or store propane among the regulated entities.
Propane users and dealers argued that they were already governed by standards of the
National Fire Protection Association (NFPA) and that further regulation was unnecessary.
Furthermore, they believe that propane should not be regulated because it is not toxic. EPA
argued, however, that numerous incidents, including the second most deadly chemical
accident in history, have involved propane explosions. Flammable and combustible liquids,
other than gasoline, were involved in more than 128,000 reported accidental releases from
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1987 through 1996, according to federal databases. Further, according to EPA, NFPA’s
standards do not cover the full range of requirements under Section 112(r).

EPA has worked with NFPA to coordinate EPA and NFPA standards, and planned to
raise the threshold quantity that would lead to regulation of propane users. In the meantime,
the D.C. Circuit of the U.S. Court of Appeals granted a stay of the rule for all propane
facilities.
Two bills in the 106th Congress addressed these issues. H.R. 1301 (Blunt) would have
prohibited the listing of liquefied petroleum gas (including propane) under the risk
management planning requirements of Section 112(r); S. 880 (Inhofe) exempts flammable
fuels that are not acutely toxic from the risk management planning provision. S. 880 was
reported, amended, by the Environment and Public Works Committee June 9, 1999 (S. Rept.
106-70). It passed the Senate June 23. The House passed the bill, with amendments, July
21. The Senate agreed to the House amendments, August 2, and the bill was signed by the
President (P.L. 106-40) on August 5.
A second issue affects all reporting facilities. Under Section 112(r), each risk
management plan must include a hazard assessment and an evaluation of worst case accidental
releases. EPA had initially planned to make this information available to the public via the
Internet, but the chemical industry and others, including the Federal Bureau of Investigation,
raised concerns that terrorists might use such information to identify and target facilities.
EPA subsequently changed its mind concerning Internet access and worked with the FBI and
other security experts to develop a system preventing access to sensitive information.
Nevertheless, many interested parties, including the FBI, remained concerned that the
Freedom of Information Act (FOIA) might be used to gain access to information that might
subsequently be posted on the Internet. Environmental groups, on the other hand, are
concerned that the public should be aware of potential risks. Given the wide range of
information already publicly available, some argued that affected industries were using
security concerns as a red herring to avoid wider public disclosure of risks, not to keep
information from terrorists. In any event, under current law, EPA would have little recourse
but to make at least a summary of the information available in some form.
To address the security concerns raised by the Section 112(r) requirements, the Clinton
Administration submitted draft legislation to Congress May 7, 1999. In the House,
Representative Bliley introduced EPA’s bill as H.R. 1790. In the Senate, the
Administration’s provisions were attached with minor changes as an amendment to S. 880
and reported by the Environment and Public Works Committee June 9. Negotiations ensued
among the committee's leaders, producing a manager’s amendment that passed the Senate by
unanimous consent June 23, 1999. A slightly amended version passed the House July 21.
As noted previously, the Senate agreed to the House amendments, August 2, and the bill was
signed by the President (P.L. 106-40) on August 5.
As enacted, the bill establishes a one-year moratorium on public electronic release of
detailed information about worst-case accident scenarios. Qualified state and local officials,
including fire fighters, will have access to the data during this period, but the general public
will not. EPA is to use the moratorium period to regulate distribution of detailed off-site
consequence analysis information in order to minimize increases in risk of terrorist and
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criminal activity (due to the posting of data on the Internet), the likelihood of accidental
releases, and the likelihood of harm to public health and welfare. In addition, the bill requires
companies that file risk management plans, with some exceptions, to hold public meetings to
discuss their off-site consequence analyses. (For additional information on the risk
management plan requirements and related legislation, see CRS Report RL30228, Accident
Prevention Under the Clean Air Act Section 112(r): Risk Management Planning by Propane
Users and Internet Access to Worst-Case Accident Scenarios.)
Sanctions and “Conformity”
Under the Clean Air Act, there are two provisions that can result in denial of federal
highway funding to local areas: sanctions and a lapse in what is called “conformity.” The
sanction authority is found in Sections 179 and 110(m) of the Act. Under these sections, the
EPA Administrator is required to impose highway fund and other sanctions on areas that have
not submitted or not implemented adequate plans to attain air quality standards. Conformity
requirements are found in Section 176. This section prohibits federal departments and
agencies from approving, permitting, or providing financial support to transportation
improvements in areas that have not attained air quality standards, unless such improvements
conform with the State Implementation Plan for achieving air quality.
Sanctions. If the EPA Administrator determines that a state has failed to submit an
acceptable implementation plan for achieving or maintaining air quality standards, or has
failed to implement the requirements of an approved plan, a finding is made notifying the state
of the deficiency. This starts what EPA refers to as the “sanctions clock.” Sanctions must
be imposed 18 months after the Administrator makes such a determination, but they may not
be imposed if the deficiency has been corrected within the 18-month period. It is not failure
to attain air quality standards that leads to sanctions, but failure to submit an acceptable plan
or to implement the measures identified therein.
In such cases, Section 179 of the Clean Air Act authorizes EPA to use two types of
sanctions: 1) imposing what are called “2:1 offsets” on new or modified sources of emissions;
and 2) withholding certain federal highway funds. Under regulations issued pursuant to
Section 179, the Administrator first imposes the offset sanction. If the deficiency has not
been corrected within 6 months, both sanctions are applied.
When highway fund sanctions are imposed, not all funding is affected. Projects are
exempt from sanctions when the Department of Transportation determines — based on
accident or other appropriate data — that the principal purpose is an improvement in safety.
In addition, despite sanctions, DOT may approve several types of projects geared toward the
improvement of air quality, including transit projects, HOV lanes, breakdown lanes, projects
to improve traffic flow, and park-and-ride lots.
The threat of sanctions is a powerful tool; but, perhaps because the threat is powerful,
the imposition of sanctions is a rare event. EPA has formally notified the states of its intent
to use this tool 858 times since 1990. Actual imposition of sanctions, which cannot occur
until 18 months after formal notification, has occurred 18 times in that time period; in most
of these cases, the issue was resolved after the imposition of offset sanctions. Only 2 areas
have had highway sanctions imposed. As of October 1999, they were in effect for one small
area (East Helena, Montana).
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Conformity Lapse. Conformity determinations are also a powerful tool — one meant
to integrate transportation and air quality planning. Areas in 29 states have experienced a
lapse of conformity at some time since 1993, and 5 areas, the largest of which is Atlanta,
currently have lapsed conformity.
Conformity lapses operate in a fashion similar, in some respects, to highway fund
sanctions. As with sanctions, exceptions are provided for highway projects that will improve
safety or air quality. Further limiting their impact, conformity lapses have, until recently, been
applied only to new projects. In many cases, an area simply waits until its next revision of its
Transportation Improvement Program (TIP) or its State Implementation Plan to revise the
proposed project or through other measures to return to conformity. Thus, few areas have
lost funding despite a conformity lapse.
In Atlanta, for example, the area continued until recently to receive its full share of
federal highway funding because exempt and grandfathered projects (from previously
approved TIPs) were allowed to proceed. New projects, however, including Atlanta’s Outer
Perimeter highway, have been stalled.
One reason that conformity has come to the attention of Congress this year is a court
decision: on March 2, 1999, the U.S. Court of Appeals for the District of Columbia Circuit
ruled that the Clean Air Act limits grandfathering of funding in conformity situations,
overturning EPA’s regulations and considerably raising the stakes for Atlanta and other areas
that are subject to a conformity lapse. EPA and the Department of Transportation
subsequently reached agreement on procedures to implement the court’s decision, and the
Agency announced on April 16 that it would not appeal the decision.
This decision and another case that awaits trial in Missouri have aroused congressional
interest in the sanctions and conformity issues. Two bills (Senator Bond’s S. 495 and
Representative Baker’s H.R. 1626) would repeal the highway fund sanction provisions, and
two other bills (Senator Bond’s S. 1053 and Representative Talent’s H.R. 1876) would
restore the grandfather provisions of the conformity rule overturned by the March 2 court
ruling.
The Senate Environment and Public Works Committee held a hearing on the conformity
issue July 14 and ordered S. 1053 reported, with substantial amendments, September 29. As
amended, the bill would restore the grandfather provisions in effect prior to the March 2 court
decision for a period of one year while EPA writes new regulations. The bill also stipulates
that certain projects, including any project approved prior to March 2, may be implemented
even if conformity lapses. It establishes new requirements regarding approval of emissions
budgets by EPA, allows the use of non-federal funds for right-of-way acquisition and highway
design during periods of conformity lapse, and delays the application of conformity to areas
that may be designated nonattainment under the pending 8-hour ozone standard. (For
additional background, see CRS Report RL30131, Highway Fund Sanctions and Conformity
Under the Clean Air Act, updated October 15, 1999.)
Ozone Transport Rule
While not the subject of legislation so far in this Congress, another subject of concern
may be the ozone transport rule promulgated by EPA on October 27, 1998, and subsequent
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EPA actions related to ozone transport. The rule, a major element of the ongoing effort to
reduce ozone concentrations in the Northeastern states, implements a regional strategy for
reductions in emissions of NOx, a pollutant that combines with volatile organic compounds
to form ozone in areas downwind of its release.
The ozone transport rule grew out of the efforts of the Ozone Transport Assessment
Group (OTAG) to develop a regional strategy for NOx reductions. In June 1997, OTAG (a
group composed of the 37 easternmost states) completed its work, recommending regional
measures to reduce NOx emissions, but specifying only a broad range rather than an agreed
percentage for the targeted reductions. EPA promulgated its regulations implementing the
OTAG recommendations on October 27, 1998, calling for average reductions of 28% in NOx
emissions in 22 Eastern states and the District of Columbia (later revised to 25%). These
reductions would be implemented through State Implementation Plans, beginning in May
2003. The SIPs were to be submitted to EPA by September 30, 1999.
The degree to which the regulations impose additional requirements on utilities and other
sources of NOx is the prime area of controversy. The accuracy of the modeling used to
determine the distribution of the needed reductions, the form of emissions trading to be
allowed under the regulations, and the amount (or lack) of flexibility EPA will give to the
states in planning reductions are other issues.
The rule was also a centerpiece of the Agency’s implementation plan for the new 8-hour
ozone air quality standard, which was overturned on May 14. The trigger for the ozone
transport rule was the statutory 1-hour standard, not the 8-hour standard. However, it was
coupled with the 8-hour standard in the final rule. Apparently, EPA’s commingling of the
standards was sufficient for the U.S. Court of Appeals for the D.C. Circuit to issue an
indefinite stay of the transport rule on May 25 (Michigan v. EPA). Whether EPA will revise
the rule to base it on violations of the 1-hour standard only, or will await the judicial appeals
process on the final rule as promulgated, remains to be seen.
In a related action, in the wake of the court decision, EPA has decided on an approach
to what are referred to as the “Section 126 petitions.” Under Section 126, any state or
political subdivision may petition EPA for a finding that stationary sources in another state
are significantly contributing to nonattainment problems in their state. In response to petitions
from 8 Northeastern states, EPA found in April, 1999, that 19 Midwestern and Southern
states (and D.C.) contributed to nonattainment problems in 6 of the petitioning states with
respect to the 8-hour standard, and 12 Midwestern and Southern states (and D.C.)
contributed to nonattainment difficulties with respect to the 1-hour standard. Implementation
of this finding was to be contingent and coordinated with the state’s response to the Ozone
Transport Rule. In June, however, in response to the court decision, EPA stayed that finding
and announced its intention to decouple the Section 126 findings from the Ozone Transport
Rule, and its findings under the 1-hour standard and the 8-hour standard. This would mean
that Section 126 implementation would involve the 12 states (and D.C.) at least until the
situation with the 8-hour standard and the transport rule is clarified. EPA took final action
on four of the Section 126 petitions December 17, 1999, imposing NOx control requirements
on 392 stationary sources located in 12 states and D.C. The required controls take effect in
May 2003.

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The transport rule has come to the attention of Members of Congress from some of the
affected states, but there has been no action in the 106th Congress. In the last Congress, two
bills introduced by Representatives Wise and Ney (H.R. 3690 and H.R. 4136) would have
required additional data collection before promulgation of a final ozone transport rule and
would have postponed the rule’s effective date until no earlier than 2005. No action was
taken on these bills. (For additional information on the OTAG process and the promulgated
rule, see CRS Report 98-236, Air Quality: EPA’s Ozone Transport Rule, OTAG, and Section
126 Petitions — A Hazy Situation?)
LEGISLATION
P.L. 106-40, S. 880 (Inhofe)
Amends the Clean Air Act to remove flammable fuels from the list of substances with
respect to which reporting and other activities are required under the risk management plan
program of Section 112(r). Introduced April 26, 1999; referred to Committee on
Environment and Public Works. Reported, amended, June 9, 1999 (S.Rept. 106-70). Passed
Senate June 23, 1999. Passed House, amended, July 21, 1999. Senate agreed to House
amendments, August 2, 1999. Signed into law August 5, 1999.
H.R. 11 (Bilbray)
Amends the Clean Air Act to permit exclusive application of California state regulations
regarding reformulated gasoline in federal RFG areas within the state. Introduced January
6, 1999; referred to Committee on Commerce. Hearing held, May 6, 1999, by Subcommittee
on Health and Environment. Approved, amended, by Subcommittee on Health and
Environment, September 30, 1999.
H.R. 25 (Boehlert)
To reduce acid deposition by requiring additional controls on sources of sulfur dioxide
and nitrogen oxides and to provide for a study and controls on emissions of mercury.
Introduced January 6, 1999; referred to Committee on Commerce.
H.R. 236 (Rogan)
Amends the Clean Air Act to exempt prescribed burning on National Forest lands from
regulation under the Act for a period of 10 years after enactment. Introduced January 6,
1999; referred to Committee on Commerce.
H.R. 657 (Sweeney)
To reduce acid deposition. Similar to H.R. 25. Introduced February 9, 1999; referred
to Committee on Commerce.
H.R. 888 (Kildee)
Clean Gasoline Act of 1999. Amends the Clean Air Act to limit sulfur concentrations
in gasoline. Introduced March 1, 1999; referred to Committee on Commerce.
H.R. 1367 (Franks)
Amends the Clean Air Act to prohibit the use of the fuel additive MTBE in gasoline.
Introduced April 12, 1999; referred to Committee on Commerce.
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H.R. 1395 (Hunter)
Amends the Clean Air Act to prohibit imports of gasoline to California and to suspend
the application of RFG and oxygenated fuel requirements of state and federal law in California
when the retail price of gasoline in the state is 20% greater than its average in the most recent
3-year period. Introduced April 13, 1999; referred to Committee on Commerce.
H.R. 1398 (Pombo)
Amends the Clean Air Act to prohibit the use of the fuel additive MTBE in gasoline.
Introduced April 14, 1999; referred to Committee on Commerce.
H.R. 1626 (Baker)
Amends the Clean Air Act to repeal the highway fund sanctions. Introduced April 29,
1999; referred to Committee on Commerce.
H.R. 1705 (Pallone)
Amends the Clean Air Act to waive the oxygenate requirement for reformulated gasoline
and to phase out the use of the fuel additive MTBE in gasoline; requires a study by the
National Academy of Sciences on the health and environmental effects of all gasoline
oxygenates. Introduced May 5, 1999; referred to Committee on Commerce.
H.R. 1755 (Filner)
Border Smog Reduction Accountability Act. Provides for reimbursing states for the
costs they incur in implementing the Border Smog Reduction Act of 1998. Introduced May
11, 1999; referred to Committee on Commerce.
H.R. 1790 (Bliley)
Chemical Safety Information and Site Security Act of 1999. Limits public disclosure of
accidental release scenario information in risk management plans required under Section
112(r) of the Clean Air Act. Introduced May 13, 1999; referred to Committees on
Commerce, Government Reform, and Judiciary. Hearings held by Commerce Subcommittee
on Health and Environment May 19 and 26.
H.R. 1876 (Talent)
Amends the Clean Air Act to incorporate the grandfather provisions of the
transportation conformity regulations, as in effect on March 1, 1999. Introduced May 19,
1999; referred to Committee on Commerce.
H.R. 2427 (Cox)
Amends the Clean Air Act to remove a provision limiting air pollution grants to
individual states to no more than 10% of the total amount appropriated or allocated.
Introduced July 1, 1999; referred to Committee on Commerce.
H.R. 2556 (Wolf)
National Telecommuting and Air Quality Act. Requires the Secretary of Transportation
to make a grant to a nonprofit private entity to design a pilot program on telecommuting as
a means of reducing emissions of air pollutants that are precursors to ground level ozone.
Introduced July 19, 1999; referred to the Committees on Commerce and on Transportation
and Infrastructure.
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H.R. 2667 (Allen)
Omnibus Mercury Emissions Reduction Act of 1999. Amends the Clean Air Act to
establish requirements for operation of fossil fueled electric utility generators, commercial and
industrial boilers, incinerators, chlor-alkali plants, and Portland cement plants to reduce
mercury emissions. Introduced August 2, 1999; referred to Committee on Commerce.
H.R. 3449 (Greenwood)
Amends the Clean Air Act to provide that petitioning states may waive the requirements
concerning the oxygen content of RFG and to provide for a scheduled phasedown of MTBE
use. Introduced November 18, 1999; referred to Committee on Commerce.
S. 171 (Moynihan)
Amends the Clean Air Act to limit sulfur concentrations in gasoline. Introduced January
19, 1999; referred to Committee on Environment and Public Works.
S. 172 (Moynihan)
To reduce acid deposition. Similar to H.R. 25. Introduced January 19, 1999; referred
to Committee on Environment and Public Works.
S. 266 (Feinstein)
Senate counterpart to H.R. 11. Introduced January 20, 1999; referred to Committee on
Environment and Public Works.
S. 268 (Feinstein)
Strengthens emission standards for gasoline-powered marine engines. Introduced
January 20, 1999; referred to Committee on Environment and Public Works.
S. 495 (Bond)
Repeals the highway fund sanction provisions of the Clean Air Act. Introduced March
2, 1999; referred to Committee on Environment and Public Works.
S. 645 (Feinstein)
Amends the Act to waive the oxygen content requirement for reformulated gasoline.
Introduced March 17, 1999; referred to Committee on Environment and Public Works.
S. 673 (Leahy)
Amends the Clean Air Act to establish requirements concerning the operation of fossil
fuel-fired electric utility steam generating units, commercial and industrial boiler units, solid
waste incineration units, medical waste incinerators, hazardous waste combustors, chlor-alkali
plants, and Portland cement plants to reduce emissions of mercury. Introduced March 19,
1999; referred to Committee on Environment and Public Works.
S. 1037 (Boxer)
Amends the Toxic Substances Control Act to provide for reduction in the use of MTBE.
Introduced May 13, 1999; referred to Committee on Environment and Public Works.
S. 1053 (Bond)
Amends the Clean Air Act to incorporate the grandfather provisions of the
transportation conformity regulations, as in effect on March 1, 1999. Introduced May 14,
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1999; referred to Committee on Environment and Public Works. Ordered reported, amended,
September 29, 1999.
S. 1470 (Lautenberg)
Chemical Security Act of 1999. Amends the Clean Air Act to ensure that adequate
actions are taken to detect, prevent, and minimize the consequences of accidental releases that
result from criminal activity that may cause substantial harm to public health, safety, and the
environment. Introduced July 30, 1999; referred to Committee on Environment and Public
Works.
S. 1521 (Santorum)
National Telecommuting and Air Quality Act. Similar to H.R. 2556. Introduced August
5, 1999; referred to Committee on Commerce, Science, and Transportation.
S. 1886 (Inhofe)
Permits Governors to waive the oxygen requirements for reformulated gasoline, and
allows the development of voluntary standards to control the release of MTBE from
underground storage tanks. Introduced November 9, 1999; referred to Committee on
Environment and Public Works.
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress. House. Committee on Commerce. Subcommittees on Health and
Environment and Oversight and Investigations. Internet Posting of Chemical “Worst-
Case” Scenarios: A Road Map for Terrorists? February 10, 1999.
U.S. Congress. House. Committee on Commerce. Subcommittee on Health and
Environment. H.R. 11. May 6, 1999.
-----. H.R. 1790, the Chemical Safety Information and Site Security Act of 1999. May 19
and 26, 1999.
U.S. Congress. House. Committee on Science. Subcommittee on Energy and Environment.
Reducing Sulfur in Gasoline and Diesel Fuel. July 21, 1999.
----- Reformulated Gasoline. September 14 and 30, 1999.
U.S. Congress. Senate. Committee on Environment and Public Works. Conformity
Regulations. July 14, 1999.
U.S. Congress. Senate. Committee on Environment and Public Works. Subcommittee on
Clean Air, Wetlands, Private Property, and Nuclear Safety. EPA’s Risk Management
Plan Program of the Clean Air Act. March 16, 1999.
----- Proposed Sulfur Standard for Gasoline. May 18 and 20 and July 29, 1999.
-----. MTBE. October 5, 1999.
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-----. Clean Air Act Reauthorization. October 14, 1999.
FOR ADDITIONAL READING
CRS Issue Briefs
CRS Issue Brief IB97003. Stratospheric Ozone Depletion: Implementation Issues, by Larry
B. Parker. (Updated regularly)
CRS Reports
CRS Report 97-8. Air Quality: Background Analysis of EPA’s 1997 Ozone and Particulate
Matter Standards, by John E. Blodgett, Larry B. Parker, and James E. McCarthy.
Updated June 19, 1998. 32 p.
CRS Report 98-236. Air Quality: EPA’s Ozone Transport Rule, OTAG, and Section 126
Petitions — A Hazy Situation?, by Larry Parker and John Blodgett. Updated June 15,
1999. 22 p.
CRS Report RL30298. Air Quality and Motor Vehicles: An Analysis of Current and
Proposed Emission Standards, by David M. Bearden. September 2, 1999. 21 p.
CRS Report RL30131. Highway Fund Sanctions and Conformity Under the Clean Air Act,
by James E. McCarthy. Updated October 15, 1999. 8 p.
CRS Report 98-290. MTBE in Gasoline: Clean Air and Drinking Water Issues, by James
E. McCarthy and Mary Tiemann. Updated October 15, 1999. 15 p.
CRS Report 96-737. Nitrogen Oxides and Electric Utilities: Revising the NSPS, by Larry
Parker. Updated October 13, 1998. 6 p.
CRS Report RL30228, Accident Prevention Under the Clean Air Act Section 112(r): Risk
Management Planning by Propane Users and Internet Access to Worst-Case Accident
Scenarios, by Linda-Jo Schierow. June 10, 1999. 8 p.
CRS Report RS20163. Sulfur in Gasoline, by Stephen Thompson and James E. McCarthy.
Updated July 12, 1999. 6 p.

CRS Report RS20228, The D.C. Circuit Remands the Ozone and Particulate Matter Clean-
Air Standards: American Trucking Associations v. EPA, by Robert Meltz and James E.
McCarthy. June 10, 1999. 6 p.
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