Order Code IB10115
Issue Brief for Congress
Received through the CRS Web
Environmental Protection Issues
in the 108th Congress
Updated February 24, 2003
Coordinated by Susan Fletcher and Margaret Isler
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Environmental Protection Agency Appropriations
Clean Air Issues
Climate Change
Clean Water Act
Safe Drinking Water
Leaking Underground Storage Tanks
Superfund and Brownfields
Chemical Plant Safety
Pesticide Management
Environmental Issues and Surface Transportation
Defense Environmental Cleanup and Other Issues

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Environmental Protection Issues in the 108th Congress
SUMMARY
Environmental issues in the 108th
appropriations act, H.J.Res. 2 (P.L. 108-7). As
Congress may reflect shifted priorities as a
approved, it included $8.0 billion for EPA for
result of the new Senate leadership and
FY2003. Budgetary attention next turns to the
changes in committee chairmanships in both
FY2004 appropriations, for which the request
chambers of the Congress. Nevertheless, a
for EPA is $7.6 billion, or 5% less than
substantial portion of the environmental
approved for FY2003. A proposed reduction
agenda in the 108th Congress will likely derive
in wastewater infrastructure assistance is
from initiatives or issues that received some
likely to be a key EPA issue.
attention in the 107th Congress, but were not
enacted.
In addition to the EPA appropriations
activity for FY2003 and upcoming debates
This report provides a brief overview of
over EPA funding for FY2004, a number of
some of the key environmental protection
key issues are likely to see, or have seen, early
issues that have been and are likely to
action in the 108th Congress, including leaking
continue to be the focus of public and
underground storage tanks (LUST) that may
congressional attention. The individual
contaminate water supplies, environmental
sections below on specific issues reference
concerns in surface transportation
more detailed CRS reports for additional
reauthorization legislation, and defense
detail.
cleanup and military/environment issues.
These issues are discussed in this report, along
The initial focus of the108th Congress
with other issues likely to be on the
was on finalizing FY2003 funding not
environmental agenda: Clean Air Act issues;
completed by the 107th Congress.
Clean Water Act; safe drinking water;
Appropriations for the Environmental
Superfund and brownfields; climate change;
Protection Agency (EPA) were among those
chemical plant security; and pesticide
unresolved, and a number of controversial
management. (Other environmental issues
environmental amendments were under debate
focused on natural resource management are
as Congress considered a consolidated
not included in this issue brief.)
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On February 13, 2003,Congress approved consolidated appropriation legislation, P.L.
108-7 (H.J.Res. 2, H.Rept. 108-10), to fund federal agencies, including the Environmental
Protection Agency (EPA), for the rest of FY2003. For EPA, it allocated an FY2003 level of
$8.0 billion. Also included was an amendment requiring an EPA-financed National
Academy of Sciences study on the impact of final regulations promulgated December 31,
2002, implementing the New Source Review (NSR) program of the Clean Air Act (CAA).
During floor debate, the Senate defeated an amendment proposing to delay implementing this
rule and another amendment proposing to increase Superfund appropriations. Hearings on
the FY2004 request of $7.6 billion are expected in coming weeks.
BACKGROUND AND ANALYSIS
Anticipating the congressional agenda at the start of a new Congress is always difficult,
as membership, leadership, and priorities change. Nevertheless, a substantial portion of the
environmental agenda in the 108th Congress will likely derive from initiatives or issues that
received some attention in the 107th Congress, but were not enacted. These unfinished
initiatives include: funding levels and implementing requirements concerning grant funds for
leaking underground storage tank cleanup, Superfund, drinking water, and sewage treatment
programs; addressing underground water contamination by the fuel additive MTBE; the
Administration’s “Clear Skies” proposal concerning air quality regulation; various
environmental protection programs in the comprehensive energy bill (H.R. 4), such as energy
conservation and climate change; and an Administration proposal concerning treaties
controlling certain persistent pesticide and other chemical pollutants.
Other issues on the environmental protection agenda of the 108th Congress will likely
include continuing consideration of appropriations for EPA, as well as for Department of
Energy and Department of Defense environmental cleanup programs, any of which could
include riders with provisions concerning specific matters of congressional concern. Also
likely to be considered are the authorization of environmental grant programs within the
Surface Transportation authorization (TEA 21), which expires in 2003; and oversight of
various programs, including a nonpoint source program in the clean water act, new source
review regulations implementing provisions of the Clean Air Act, and research and other
programs relating to climate change.
Not only will the agenda of the 107th Congress be transformed in the 108th as a result
of the shift in control of the Senate, along with the changes in committee chairmanships in
both the Senate and the House, but also the outcome for specific initiatives that failed earlier
may change. While the overall authorizations for most environmental protection statutes
have expired, program activities continue as Congress has regularly appropriated funds to
implement these laws; so the fact that authorizations have expired does not seem to be a
significant impetus for legislative activity. However, specific pollution problems, such as
MTBE contamination, perceptions of regulatory inefficiencies or adverse effects, and
demands for or constraints on funding programs may be the primary focus for action.
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The discussion of each of the major environmental protection issues below briefly
reviews action in the 107th Congress, but focuses on the nature of the issues and expected
activity in the 108th. It is not intended to include comprehensive coverage of all
environmental issues; in particular, it does not address issues involving public lands and
natural resources. For more details on individual issues, see the references in each section
below. For a review of environmental legislative activity in the last Congress, see CRS Issue
Brief IB10067, Environmental Protection Issues in the 107th Congress; for an overview of
environmental protection laws, see CRS Report RL30798, Environmental Laws: Summaries
of Statutes Administered by the Environmental Protection Agency.
Environmental Protection Agency Appropriations
The 108th Congress has approved consolidated appropriation legislation, P.L. 108-7
(H.J.Res. 2, H.Rept. 108-10), signed February 20, to fund federal agencies, including EPA,
for the rest of FY2003. (A series of continuing resolutions funded the agencies at FY2002
levels from October 1, 2002, to February 20, 2003.) The Senate adopted, and the conferees
included, an amendment requiring an EPA-financed National Academy of Sciences study on
the impact of final new source review regulations promulgated December 31, 2002. Not
adopted during Senate consideration was an amendment proposing to delay implementing
this rule and another proposing to increase Superfund appropriations. (Last year, the House
and Senate Appropriation Committees reported FY2003 bills – H.R. 5605, S. 2797 – funding
EPA but they did not receive further action before the end of the 107th Congress. CRS Issue
Brief IB10101, the Environmental Protection Agency’s FY2003 Budget discusses these
actions more fully.)
Table 1. EPA Funding: FY2002 Enacted; FY2003 Request, CR, and
Final Funding; and FY2004 Request
(major accounts in billions of dollars)
Major Accounts
FY2002
FY2003
FY2004
Enacted
Request
Request
Continuing
Final
Resolutions*
H.J.Res. 2
Science and
0.70
0.67
0.70
0.72
0.73
Technology
Environmental
2.05
2.05
2.05
2.10
2.21
Programs and
Management
Superfund
1.27
1.27
1.27
1.26
1.40
State and Tribal
3.73
3.46
3.73
3.83
3.12
Assistance Grants
TOTAL EPA
7.90
7.62
7.90
8.04**
7.63
*From October 1, 2002 to February 20, 2003, continuing resolutions provided funding at FY2002
levels, less earmarks - about $500 million for EPA - which did not carry over.
** For all agencies, H.J.Res.2 provides for a rescission of 0.65%, reflected in these totals.
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H.J.Res.2 includes an FY2003 EPA level of $8.04 billion. The President had requested
$7.62 billion, $458 million less than the total FY2002 appropriation of $8.08 billion. The
Administration’s decision not to request nearly $500 million to continue activities earmarked
in the FY2002 appropriation – most for water infrastructure projects – was significant, since
these grants have been very popular. H.J.Res 2 restores $314 million of the water
infrastructure funding.
The President’s FY2003 request contained $670 million for the Science and
Technology account; H.J.Res. 2 designates $715.5 million for this account. For the
Environmental Programs and Management account, the request was $2.05 billion. H.J.Res.2
furnishes $2.14 billion. To clean up toxic waste sites under Superfund, H.J. Res. 2 provides
$1.26 billion, slightly less than requested. A tabled Senate amendment to H.J.Res.2 would
have provided $1.37 billion.
The adequacy of federal funding to help meet state and local wastewater and drinking
water capital needs has been an on-going issue, and some estimates of funding needs are as
high as $1 trillion over the next 20 years. The FY2003 request for the State and Tribal
Assistance Grants (STAG) account to address these and other needs was $3.46 billion, $275
million less than in FY2002, assuming a discontinuance of earmarked funding. H.J.Res.2
includes $3.83 billion containing $314 million for earmarked water projects. The STAG
request contained $1.21 billion for Clean Water State Revolving Funds (SRF); H.J.Res.2
furnishes $1.35 billion. The STAG request included $850 million for the Drinking Water
SRF, the amount in the final version of H.J.Res.2.
As part of the STAG account, H.J.Res.2 provides $50 million, $25 million less than the
request of $75 million, for Mexican border water projects. The request also included $40
million for state of Alaska projects, to which $3 million was added. For state and tribal
administrative grants, the request sought $1.08 billion, whereas H.J.Res.2 provides $1.15
billion. The $200 million requested for Brownfields was reduced to a level of $166 million,
reflecting Congress’ funding of Brownfields Revolving Loan Fund (BFRLF) capitalization
grants at $90 million rather than the requested $120 million.
In the FY2004 budget presented February 3, the President requests $7.7 billion in
budget authority for the EPA, $418 million (or 5%) less than the FY2003 level of $8.0 billion
provided under H.J.Res. 2. As can be seen from Table 1, the reduction came from a $713
million or 19% decrease in the State and Tribal Assistance Grants account. The other EPA
major accounts either stayed essentially level or increased. The $731 million requested for
the Science and Technology account reflects a $16 million increase; for the Environmental
Programs and Management account, the requested level is $121 million, or a 6%, increase
compared to current funding. The $1.5 billion requested to clean up toxic waste sites under
Superfund is $125 million above the current year level. The question of how to fund state and
local wastewater and drinking water capital needs is once again a major issue. The request
seeks $3.1 billion for the STAG account, a 19% decrease, as noted. These planned reductions
for popular wastewater state revolving funds and direct grants are likely to be controversial.
[This section prepared by Martin R. Lee, Specialist in Environmental Policy, x7-7260]
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Clean Air Issues
Clean air issues were discussed at length in the 107th Congress, but legislation was not
enacted, leaving the same issues for possible consideration in the 108th. With new leadership
in the Senate, the prospects for such legislation and its content are likely to change. Further,
the Senate committee of jurisdiction (Environment and Public Works) is expected to focus
first on consideration of highway and transit funding (the authorization for which, known as
the Transportation Equity Act, or TEA21, expires at the end of FY2003). Thus, although
there is some interest in considering broad changes to the Clean Air Act, the more immediate
prospect is for targeted proposals that might be attached to reauthorization of TEA21 or other
legislation. TEA21 already contains some air quality provisions – notably a grant program
known as CMAQ (Congestion Mitigation and Air Quality) that is the largest federal grant
program designed to help states comply with national air quality standards, as discussed
below.
The most prominent air quality issue in recent months has been the controversy over
EPA’s proposed changes to the Clean Air Act’s New Source Review (NSR) requirements,
which impose emission controls on new or modified power plants and other major facilities.
Changes to the NSR requirements (some proposed and others promulgated) were released
by EPA November 22, 2002, and appeared in the Federal Register December 31. The new
rules will make it easier for companies to modify their facilities without installing new
pollution controls. On January 22, the Senate narrowly defeated an amendment to the
FY2003 Omnibus Appropriations bill offered by Senator Edwards (S.Amdt. 67 to H.J.Res.
2) that would have delayed implementation of these changes pending completion of a study
by the National Academy of Sciences. The Senate did approve a separate amendment
offered by Senator Inhofe (S.Amdt. 86) directing NAS to conduct such a study, but not
delaying implementation of the standards.
In addition to changing NSR, the Administration has asked Congress to modify Clean
Air Act requirements for power plants by enacting “Clear Skies” or “multi-pollutant”
legislation. In the 107th Congress, the Senate Environment and Public Works Committee
narrowly approved a version of multi-pollutant legislation (S. 556) that included CO2
regulation June 27, 2002; but the Administration and much of the electric power industry
opposed the bill, and it did not reach the Senate floor. “Clear Skies” legislation, which does
not include carbon dioxide regulation, is likely to be reintroduced in the 108th Congress.
Another holdover issue from previous Congresses concerns regulation of the gasoline
additive methyl tertiary butyl ether (MTBE). MTBE is used to meet Clean Air Act
requirements that gasoline sold in the nation’s worst ozone nonattainment areas contain at
least 2% oxygen, to improve combustion and thereby reduce emissions. The additive has
been implicated in numerous incidents of ground water contamination, however, and 17
states have taken steps to ban or regulate its use. The most significant of these bans (in
California and New York) takes effect at the end of 2003, leading many to suggest that
Congress revisit the issue before then to modify the oxygenate requirement and set more
uniform national requirements regarding MTBE and its potential replacements, principally
ethanol. (See also discussion below of drinking water issues and leaking underground
storage tanks.)
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Other clean air issues that might be considered in the 108th Congress are the conformity
of metropolitan area transportation plans with the Clean Air Act, and whether to modify the
Act’s requirements for areas that have not met deadlines for attainment of the ozone air
quality standard. (For additional information on clean air issues, see CRS Issue Brief
IB10107, Clean Air Act Issues in the 108th Congress.)
[This section prepared by Jim McCarthy, Specialist in Environmental Policy, 7-7225.]
Climate Change
Climate change issues have received some activity and legislative proposals in the 108th
Congress. On January 8, 2003, the Senate Committee on Commerce, Science, and
Transportation held a hearing on a greenhouse gas reduction and emissions trading system.
S. 139 (Lieberman) would require any entity that emits more than 10,000 metric tons of
greenhouse gases (carbon dioxide equivalent) to reduce emissions to year 2000 levels by
2010, and to 1990 levels by 2016. The bill would allow tradeable credits for reductions
beyond those required, reductions from non-covered entities, increases in carbon
sequestration, increases in passenger vehicle fuel economy, and emissions reductions in other
countries. Two other bills, S. 17 (Daschle) and S. 194 (Corzine), would establish mandatory
greenhouse gas registries, but would not require emission reductions.
In the 107th Congress, the key piece of climate change legislation was the Senate
version of H.R. 4, the comprehensive energy bill which may be revisited in the 108th
Congress. This version would have established an Office of National Climate Change Policy
to develop a climate change response strategy. Further, the Senate version of H.R. 4 would
have, among other things, established a voluntary greenhouse gas database and promoted
research and development on climate change. The House version of the bill contained
reauthorization language for EPA’s climate-related programs. Congress adjourned without
reconciling these bills, and the extent to which the 108th Congress will take up these
provisions is unclear.
(For further discussion , see CRS Issue Brief IB89005, Global Climate Change and
CRS Report RL30692, Global Climate Change: The Kyoto Protocol.)
[This section prepared by Brent Yacobucci, Environmental Policy Analyst, 7-9662.]
Clean Water Act
The Clean Water Act (CWA) is the principal law that governs pollution in the nation’s
lakes, rivers, and coastal waters, and authorizes funds to aid construction of municipal
wastewater treatment plants. Although no comprehensive legislation has been enacted since
1987, bills dealing with specific water quality issues have been enacted, and oversight
hearings on the Act and recent Administration water quality initiatives have been held.
Throughout this period, Congress has considered possible actions to implement existing
provisions of the CWA, whether additional steps are necessary to achieve the overall goals
of the Act, and the appropriate federal role in guiding and paying for clean water
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infrastructure and other activities. (For further information, see CRS Issue Brief IB10108,
Clean Water Act Issues in the 108th Congress.)
Legislation to authorize funding for clean water infrastructure projects is likely to be a
priority in the 108th Congress, as it was in the 107th Congress. At issue is how the federal
government will assist states and cities in meeting needs to rebuild, repair, and upgrade
wastewater treatment plants, especially in view of costs which are projected to be as much
as $390 billion over the next two decades. In 2002, the House Transportation and
Infrastructure Committee approved a bill to extend the Clean Water Act’s program that
assists municipal wastewater treatment projects through FY2007 (H.R. 3930); the Senate
Environment and Public Works Committee approved similar legislation (S. 1961, S.Rept.
107-228). Neither bill received further action due to controversies about provisions in both
such as a new formula for state-by-state allocation of federal funds and application of
requirements under the Davis-Bacon Act to pay prevailing wages on federally funded
projects. Two bills to reauthorize the Clean Water Act’s infrastructure assistance program
have been introduced so far in the 108th Congress (H.R. 20, S. 170).

More generally, since the September 11, 2001 terrorist attacks on the World Trade
Center and the Pentagon, congressional attention has focused on security, preparedness, and
emergency response issues. One topic of interest is protection of the nation’s water
infrastructure facilities (both wastewater and drinking water) from possible physical damage,
biological/chemical attacks, and cyber disruption. (For information, see CRS Report
RS21026, Terrorism and Security Issues Facing the Water Infrastructure Sector.) The 108th
Congress may consider legislation that was introduced during the 107th Congress to authorize
grants for wastewater utilities to assess the vulnerability of their facilities to possible terrorist
attack.
Other water quality issues in the 108th Congress may include whether and how the
Administration will revise the current Clean Water Act program for restoration of pollution-
impaired waters, called the Total Maximum Daily Load (TMDL) program, in view of
controversy over Clinton Administration regulatory changes and continuing disagreement
among states, industry, and environmental advocates about program effectiveness and
efficiency. Also of interest are impacts of the Clean Water Act’s wetlands permit program,
long criticized by development groups as being burdensome, but supported by environmental
groups. These latter groups are concerned about a 2001 Supreme Court decision that
narrowed regulatory protection of wetlands, as well as recent administrative actions which
they believe will likewise diminish protection.
[This section prepared by Claudia Copeland, Specialist in Resources and Environmental
Policy, 7-7227]
Safe Drinking Water
The Safe Drinking Water Act (SDWA) is the principal federal statute for regulating the
quality of water provided by public water systems. Congress last reauthorized the Act in
1996, authorizing funding for SDWA programs through FY2003. (For a review of the Act,
see CRS Report RL31243, Safe Drinking Water Act: A Summary of the Act and Its Major
Requirements.) Key issues in the 107th Congress included drinking water infrastructure needs
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and funding, and the security of the Nation’s water supplies. Water infrastructure financing
may continue to be a key issue in the 108th Congress.
Legislative efforts in the previous Congress also targeted specific contaminants,
especially the gasoline additive methyl tertiary butyl ether (MTBE) and arsenic. The 108th
Congress is continuing efforts to address the problem of water contamination caused by
MTBE leaks. Bills that would provide funds for remediating MTBE leaks have been
introduced (S. 195, S. 385, and H.R. 837). (See section below on Leaking Underground
Storage Tanks). Regarding arsenic, the debate over the new arsenic rule largely has shifted
to a discussion of how to help communities (especially small ones) comply with the new
standard. During the past Congress, this discussion blended into the larger debate over how,
and to what degree, the federal government should assist communities in meeting drinking
water infrastructure needs – a question that has become more challenging in a time of
tightening budgets and many high priorities.
Drinking water security legislation was enacted in 2002. The Bioterrorism Act (P.L.
107-188) amended the SDWA to require large public water systems to conduct vulnerability
assessments and prepare emergency response plans. The Act authorized funding for these
activities and also for basic security improvements, water security research, and emergency
assistance to states and utilities. The 108th Congress may be interested in overseeing
implementation of the water security provisions of the Bioterrorism Act and other efforts to
improve water security. (See also CRS Report RL31294, Safeguarding the Nation’s Drinking
Water: EPA and Congressional Actions.)
An ongoing SDWA issue has concerned the capacity of public water systems to comply
with a growing number of complex drinking water rules. Congress authorized a drinking
water state revolving fund (DWSRF) program in 1996 to help communities finance projects
needed to comply with SDWA rules. Since FY1997, Congress has provided more than $6
billion for the program, including nearly $850 million for FY2003. However, a large funding
gap remains and is expected to grow as new regulations increase needs and as infrastructure
ages. (See CRS Report 97-677, Safe Drinking Water Act: State Revolving Fund Program.)
During the 107th Congress, the Senate Environment and Public Works Committee reported
a drinking water and wastewater infrastructure financing bill that would have increased
funding authority for the DWSRF program and created a small system grant program. (For
details, see CRS Report RL31344, Water Infrastructure Financing Legislation: Comparison
of S. 1961 and H.R. 3930.) Legislation addressing water infrastructure financing and related
SDWA compliance issues will likely receive attention again in this Congress.
[This section prepared by Mary Tiemann, Specialist in Environmental Policy, 7-5937]
Leaking Underground Storage Tanks
In 1984 Congress established a leak prevention, detection, and corrective action
program under the Resource Conservation and Recovery Act (RCRA) to address a
widespread problem of leaking underground tanks that store petroleum or hazardous
chemicals. In 1986, Congress created the Leaking Underground Storage Tank (LUST) Trust
Fund to help the EPA and states cover the costs of responding to leaking petroleum USTs
where tank owners fail to do so, and to oversee LUST cleanup activities. Much progress has
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been made in the tank program, but several issues have emerged. One issue is that state
workloads have grown, as states enforced UST regulations phased in through 1998, and as
more leaks were detected as tank owners acted to comply. A more recent issue has concerned
the discovery of methyl tertiary butyl ether (MTBE) leaks at thousands of LUST sites. This
gasoline additive, used to reduce air pollution from vehicles, is very water soluble and
spreads quickly. Consequently, MTBE leaks are more difficult and costly to cleanup than
conventional gasoline leaks.
States have long sought larger appropriations from the Trust Fund to support the LUST
cleanup program, and some have sought flexibility to use LUST funds for the UST leak
prevention program. The House passed such bills in the 104th and 105th Congresses. The
subsequent increase in detections of MTBE in drinking water supplies has boosted
congressional interest in increasing Trust Fund appropriations to remediate MTBE
contamination and to enforce the UST leak prevention and detection program. Among the
LUST and MTBE bills in the 107th Congress, the Senate version of the energy bill, H.R. 4,
would have expanded the LUST program, and House and Senate versions of H.R. 4 would
have authorized Trust Fund appropriations to clean up MTBE contamination.
Legislation has been reintroduced in the 108th Congress to address the problem of
ground water and drinking water contamination caused by leaking underground storage
tanks, and specifically contamination caused by leaks involving MTBE. Bills include S. 195,
the Underground Storage Tank Compliance Act of 2003, which is essentially identical to S.
1850 (S.Rept. 107-316) from the 107th Congress, and two fuels security bills, H.R. 837 and
S. 385, that ban MTBE and promote the use of ethanol and renewable fuels. These fuel
security bills reintroduce the MTBE remediation and research, and UST program provisions
contained in the Senate version of H.R. 4 in the 107th Congress.
The Senate Environment and Public Works Committee has made action on S. 195 a
priority. This bipartisan legislation directs EPA to disburse to the states at least 80% of the
funds appropriated from the LUST Trust Fund. It also broadens the allowable uses of the
Trust Fund to permit states to use Fund money for the following new purposes: 1) to enforce
leak detection and prevention requirements; 2) to pay for administrative expenses related to
state corrective action and compensation programs; and 3) to help pay cleanup costs where
the state determines that the financial resources of an owner or operator (including resources
provided by state programs) are not adequate to pay for cleanup without significantly
impairing the ability of the UST owner to continue in business. S. 195 also specifies that
EPA may use Trust Fund monies to enforce UST leak prevention and detection regulations,
and it contains provisions to improve program implementation in areas under tribal
jurisdiction. Going beyond earlier bills, S. 195 would: require tanks to be inspected at least
every 2 years; require training for tank operators; require compliance reports for government-
owned USTs; and authorize EPA and states to prohibit deliveries to noncompliant tanks.
The bill authorizes increased appropriations from the Trust Fund to support corrective action
activities, including MTBE cleanup, and for inspections and UST enforcement. (See CRS
Report RS21201, Leaking Underground Storage Tanks: Program Status and Issues.) On
February 24, 2003 the Senate Environment and Public Works Committee ordered reported
S. 195.
[This section prepared by Mary Tiemann, Specialist in Environmental Policy, 7-5937]
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Superfund and Brownfields
Superfund (created by the Comprehensive Environmental Response, Compensation, and
Liability Act, or CERCLA) is the principal federal program for cleaning up hazardous waste
sites; the brownfields program targets less seriously contaminated industrial and commercial
facilities where redevelopment is complicated by potential environmental contamination.
The future financing of Superfund activities continues to be a controversial issue. There are
also two relatively non-controversial topics that passed one chamber in the107th Congress
that might receive attention in the 108th. They are: the establishment of an independent
ombudsman within EPA’s Office of Solid Waste and Emergency Response (OSWER); and
making brownfield grants administered by the Department of Housing and Urban
Development (HUD) more accessible to smaller communities. (For more information, see
CRS Issue Brief IB10114, Brownfields and Superfund Issues in the 108th Congress.)
The Superfund taxes that originally fed the trust fund expired in 1995, and
appropriations in the last few years have relied on progressively larger amounts from the
general fund of the Treasury. The Superfund trust fund’s unobligated balance is expected
to be down to about $159 million by the end of FY2003. (The program’s annual
appropriation has been $1.3-$1.5 billion in recent years.) In the 108th Congress, S. 173,
introduced by Senator Boxer, would renew the taxes through December 2013. A 2001 report
by Resources for the Future (RFF), which Congress requested, found that the costs of
cleaning up sites and administering the program are not likely to fall below current levels
until FY2008. EPA subsequently directed the National Advisory Committee for
Environmental Policy and Technology (NACEPT) to address the recommendations of RFF.
When it appears, the NACEPT report may spark a debate on the nature of the Superfund
program in the future, including how it will be funded. (For further discussion, see CRS
Report RL31410, Superfund Taxes or General Revenues: Future Funding Options for the
Superfund Program.)
The Ombudsman Reauthorization Act (S. 606, S.Rept. 107-320) that passed the Senate
on November 20, 2002, would have given the ombudsman power to conduct investigations,
make findings of fact, hold public hearings, and make non-binding recommendations to the
EPA Administrator concerning programs within OSWER. In addition to the Superfund and
brownfield programs, OSWER administers EPA’s solid waste, leaking underground storage
tank, oil spill, and chemical emergency preparedness and prevention activities. The House
took no action on the bill. In the 108th Congress Rep. Bilirakis has introduced a very similar
bill, H.R. 347.
The HUD bill referred to above (H.R. 2941, H.Rept. 107-448) passed the House on June
5, 2002. It would have removed the connection between HUD’s Brownfield Economic
Development Initiative (BEDI) program and the department’s Section 108 loan guarantees.
The effect is to make the BEDI grants more obtainable by a larger number of cities,
particularly smaller communities. The bill has been reintroduced in the 108th Congress as
H.R. 239 by Rep. Gary Miller.
The 107th Congress enacted the Small Business Liability Relief and Brownfields
Revitalization Act (H.R. 2869/P.L. 107-118, signed January 11, 2002). This law exempts
from Superfund liability contributors of small quantities of material containing hazardous
substances at sites on the National Priorities List, as well as disposers of municipal solid
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waste, and certain innocent landowners with contaminated property. The Act gives the
brownfields program legislative authority it previously lacked, and authorizes $250 million
per year for brownfield assessment grants and cleanup grants (including “relatively low-risk”
sites contaminated by petroleum), and provides funds to enhance state and tribal voluntary
cleanup programs; all the authorizations are through FY2006. (For additional detail on
legislative activity in the 107th Congress, see CRS Issue Brief IB10078, Superfund and
Brownfields Issues in the 107th Congress.)
[This section prepared by Mark Reisch, Analyst in Environmental Policy, 7-7255]
Chemical Plant Safety
The 108th Congress is continuing deliberations begun in the 107th Congress about
whether there is a need for new legislation addressing possible terrorist attacks on facilities
storing or handling large quantities of potentially dangerous chemicals. Attacks on storage
facilities or chemical plants could release large quantities of such chemicals, endangering
public health and the immediate environment, while stolen chemicals might be used to
produce weapons for use in other, populated areas. The quantitative risk of death and injury
from terrorist attacks on chemical facilities in the United States in the near future is estimated
to be low, relative to the likelihood of industrial accidents or terrorist attacks on other targets
using conventional weapons. For any individual chemical plant, the risk is extremely small.
However, risks may be increasing, possible consequences for human health and the
environment could be severe, and limited evidence suggests that many chemical facilities
may lack adequate safeguards and, thus, may be vulnerable
Risk reduction may be accomplished in several ways, the most common being to
“harden” defenses, for example, by increasing security patrols. Risk also might be reduced
in some cases by use of “inherently safer” chemicals, procedures, and processes. Restricting
terrorists’ access to information about possible targets is a third alternative, but existing
federal laws require public disclosure of facilities’ chemical hazards so that neighboring
communities are informed about any risks they may face.
The law establishing the Department of Homeland Security (DHS), P.L. 107-296, did
not address chemical plant security directly. However, if facilities are designated “critical
infrastructure” (as are water utilities, for example), the new law will require DHS to analyze
vulnerabilities and recommend methods of enhancing site security. The law exempts from
Freedom of Information Act (FOIA) requirements information about the plants’ vulnerability
to terrorism, if it is submitted voluntarily to the Department. (For more on this topic, see
CRS Report RL31530, Chemical Plant Security.)
Legislation in the 108th Congress (S. 6 and S. 157) would build on existing EPA
authority to oversee chemical facilities, but would require consultation with the new
Department of Homeland Security. S. 6, the “Comprehensive Homeland Security Act of
2003,” Title XI, would require EPA to designate “certain combinations of chemical sources
and substances of concern” as high priority categories based on the severity of the threat
posed by an unauthorized release, and to require owners and operators of facilities within
high priority categories prepare prevention, preparedness, and response plans to eliminate
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or significantly lessen the potential consequences of an unauthorized release. S. 157 is
almost identical to legislation (S. 1602) in the 107th Congress and is similar to S. 6.
[This section prepared by Linda Schierow, Environmental Policy Analyst, 7-7279.]
Pesticide Management
The outlook for consideration of pesticide policy issues in the 108th Congress is unclear,
but action might be expected on several issues raised in the 107th Congress that were left
unresolved. One is legislative language suggested by the President that would allow
implementation of three international agreements: the 2001 Stockholm Convention on
Persistent Organic Pollutants; the Aarhus Protocol on Persistent Organic Pollutants, an
amendment to the 1979 Geneva Convention on Long-Range Transboundary Air Pollution;
and the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade. The agreements restrict
production, trade, use, and disposal of certain pesticides that have been banned or severely
restricted in many developed countries. The United States has signed the agreements, but
Senate advice and consent, as well as implementing authority, are needed prior to ratification.
EPA currently has no statutory authority to regulate pesticide production for export. (For
more on this issue and related legislation in the 107th Congress, see CRS Report RL31652,
Persistent Organic Pollutants (POPs): Background and Issues for Congress.)
In addition, there is continuing interest in legislation to reduce pesticide use in and
around schools through use of integrated pest management (IPM) systems. H.R. 121 would
amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to require IPM
implementation by public schools and provision of notice to parents, guardians, and
employees when pesticides were used. In the 107th Congress, a similar provision was
included in the Senate-passed farm bill (S. 1731), but was dropped in conference before
enactment (P.L. 107-171). Also dropped during the farm bill conference was a provision
regarding fees for pesticide registration. Instead, the conference reports on FY2002 and
FY2003 appropriations prohibit EPA from implementing a proposed rule to increase fees in
order to pay for establishing a “tolerance,” or maximum safe level of pesticide residues on
foods (H.Rept. 107-159, H.Rept. 107- 272; P.L. 107-73; H.Rept.108-10 and P.L. 108-7). In
lieu of increased tolerance fees, the reports extend for one year existing EPA authority to
collect maintenance fees (for re-registration of pesticides) and increase that authority from
$17 million in FY2002 to $21.5 million in FY2003. (For more on this issue, see CRS Report
RL31186, Pesticide Registration Fees.)
The 108th Congress also may consider proposals similar to bills in the 107th Congress
(H.R. 2721, H.R. 2727, S. 877, and S. 1963) that would have required labeling or restricted
the use of arsenic-treated lumber, particularly in construction of playground equipment.
Finally, the 108th Congress is likely to continue overseeing EPA implementation of the
Food Quality Protection Act (FQPA), which amended FIFRA and the Federal Food, Drug
and Cosmetic Act (FFDCA) in 1996. FQPA established a new, stricter safety standard for
pesticide residue tolerances and directed EPA to re-evaluate all tolerances in effect in 1996
by August 3, 2006. At issue is the pace and process through which EPA is implementing the
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law. (For additional discussion of this issue, see CRS Report RS20043, Pesticide Residue
Regulation: Analysis of Food Quality Protection Act Implementation.)
[This section prepared by Linda-Jo Schierow, Specialist in Environmental Policy 7-
7279.]
Environmental Issues and Surface Transportation
Meeting public needs for surface transportation infrastructure while ensuring that the
protection of the environment is not compromised has been a longstanding issue for states
and local communities. To address these concerns, the Department of Transportation
implements a variety of programs that are designed to help mitigate the environmental
impacts of surface transportation. The funding authorization for these programs expires at
the end of FY2003, and reauthorization proposals are expected to be introduced early in the
108th Congress.
The most recent funding authorization for surface transportation projects is contained
in the Transportation Equity Act for the 21st Century (TEA-21). The law authorized a total
of $218 billion for federal highway and mass transit programs from FY1998 to FY2003 and
set aside over $12 billion for several programs to mitigate the environmental impacts of
highway travel. Most of this funding was reserved for air quality projects under the
Congestion Mitigation and Air Quality Improvement Program (CMAQ) and for
environmentally related transportation enhancements. The law also authorized funding to
assist transit systems in purchasing low-emission buses, promote advanced vehicle
technologies, conduct environmental research, and support other environmentally related
projects. (CRS Report 98-646 ENR, Transportation Equity Act for the 21st Century (P.L.
105-178): An Overview of Environmental Protection Provisions, provides additional
information on these programs.)
Of these activities, the CMAQ program is likely to receive significant attention in the
reauthorization debate due to questions that have been raised about its effectiveness. The
program supports air quality projects that are designed to reduce vehicular pollution in states
that are having difficulty in complying with the federal air quality standards for ozone,
carbon monoxide, and particulate matter. A National Academy of Sciences study of the
program in 2002 (The Congestion Mitigation and Air Quality Improvement Program:
Assessing 10 Years of Experience, Special Report 264) concluded that the overall air quality
benefits were likely great enough to help states meet the standards in areas that are on the
margin of compliance. These findings may motivate discussion of how to enhance the
program’s effectiveness, or conversely, whether to shift its focus to reducing traffic
congestion in general, since national emission reductions were estimated to be only
marginally beneficial. In the 108th Congress, legislation (H.R. 318) has been introduced to
expand project eligibility to address additional pollutants, as well as renewable fuels.
Another potential issue is whether to take further legislative action to streamline the
environmental review process for surface transportation projects. TEA-21 required the
Secretary of Transportation to develop a more efficient review process. However, some
Members of Congress have expressed disappointment that streamlining regulations have yet
to be finalized. Due to the lack of regulatory action, proposals to establish a streamlined
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review process in federal statute may be considered. However, such proposals could face
opposition from some environmental organizations that argue that streamlining might
weaken environmental protection. (CRS Report RS20841, Environmental Streamlining
Provisions in the Transportation Equity Act for the 21st Century: Status of Implementation,
discusses this issue further.)
[This section prepared by David Bearden, Environmental Policy Analyst, 7-2390.]
Defense Environmental Cleanup and Other Issues
While the Environmental Protection Agency is the primary federal agency responsible
for the control of pollution and the cleanup of civilian environmental contamination, the
Department of Defense (DOD) is responsible for remediating contamination, controlling
pollution, and managing a wide array of natural resources on 25 million acres of land located
on military installations. To fulfill these responsibilities, DOD administers five
environmental programs to clean up past contamination at current and former military
facilities, comply with environmental laws that apply to ongoing military operations, prevent
pollution, develop more effective environmental technologies, and promote the conservation
of natural and cultural resources on the lands that it administers. In addition to DOD’s
programs, the Department of Energy (DOE) is responsible for managing defense nuclear
waste and cleaning up contaminated nuclear weapons sites. Over the past decade, Congress
has appropriated about $10 billion in annual funding to support these programs.
Some of the major issues associated with defense-related environmental activities are
the adequacy, cost, and pace of cleanup; whether DOD and DOE sufficiently comply with
environmental laws; and the extent to which environmental requirements encroach upon–
present obstacles to – military training needs. Of these issues, environmental encroachment
has received increasing attention. While numerous environmental statutes include
exemptions (sometimes referred to as ‘waivers’) for national security, DOD argues that
obtaining such exemptions on a case-by-case basis is not practical, due to the number of
training exercises that it conducts on hundreds of installations. DOD also argues that the
time limitations placed upon most exemptions are not compatible with many training
activities. Instead, DOD favors modifications to numerous environmental laws that would
provide greater flexibility. Some environmental organizations have opposed such
modifications and argue that the justification for their need has been insufficient. The
Administration is expected to submit a legislative proposal early in the 108th Congress to
address the issue of environmental encroachment. Consideration of this proposal will likely
be included in the debate over the FY2004 defense authorization bill. Committee jurisdiction
could be a contentious matter, since the House and Senate Armed Services Committees do
not have jurisdiction over the environmental statutes that DOD will propose that Congress
should address.
The second session of the 107th Congress enacted legislation to authorize and
appropriate funding for DOD’s environmental programs for FY2003. However, final action
on FY2003 appropriations for DOE’s management and cleanup of defense nuclear waste was
not taken prior to adjournment. Consideration of appropriations for FY2003 extended into
the 108th Congress, and one of the principal funding issues for DOE was whether to support
the Administration’s request for a new cleanup reform account to support initiatives that
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would accelerate cleanup and reduce costs. This proposal was controversial, due to
criticisms that insufficient information was provided on how these goals would be
accomplished, and due to concerns that environmental standards might be weakened in the
process. The Consolidated Appropriations Resolution for FY2003 (P.L. 108-7) provided
$6.77 billion for DOE’s defense nuclear waste management and cleanup activities. (The law
includes an across-the-board rescission of .65%, which would reduce the appropriation if
applied equally to all discretionary accounts.) However, the law did not provide any funding
for the requested cleanup reform account, due to concerns about how DOE would have
distributed the funding among various sites. Instead, Congress increased the
Administration’s request for the existing Defense Environmental Restoration and Waste
Management Account by $926 million to support reform efforts according to current site
allocation categories. (CRS Report RL31456, Defense Cleanup and Environmental
Programs: Authorization and Appropriations for FY2003, provides more information.)
Action on appropriations for FY2004 is scheduled to occur early in the 108th Congress.
For FY2004, the Administration has requested $1.27 billion for environmental cleanup at
current and former military installations, $39 million less than the FY2003 funding level of
$1.31 billion. Most of this decrease is attributed to a proposed reduction in funding for
cleanup at former installations, which could be controversial since the pace of cleanup at
these sites has been criticized for proceeding more slowly than at active installations. The
Administration also has requested $370 million for base closure activities, the majority of
which would be used for cleanup. The request is $191 million less than the FY2003 funding
level of $561 million. The proposed decrease may receive attention, since DOD has been
criticized for understating the funding needs for base closure activities in past years.
The requested amount for DOD’s other environmental activities, including compliance,
pollution prevention, environmental technology, and conservation, will not be available until
DOD releases its Operation and Maintenance Overview for FY2004. Within DOE’s budget,
the Administration has requested $6.81 billion for FY2004 to support defense nuclear waste
management and cleanup activities, $43 million more than enacted for FY2003. The request
includes a proposal to alter the existing appropriations account structure for these activities
in order to focus funding on efforts to accelerate cleanup schedules and lower costs. As
discussed above, DOE’s cleanup reform initiative raised numerous questions in the FY2003
appropriations debate, and the FY2004 reform proposal may face similar controversy in the
108th Congress.
[This section prepared by David Bearden, Environmental Policy Analyst, 7-2390.]
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