Order Code IB10115
CRS Issue Brief for Congress
Received through the CRS Web
Environmental Protection Issues
in the 108th Congress
Updated June 26, 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 Security and Toxic Substance Control Issues
Environmental Issues and Surface Transportation
Defense Environmental Cleanup and Other Issues
Alternative Fuels and Advanced Technology Vehicles
Table 1. Action on Environmental Legislation in the 108th Congress

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Environmental Protection Issues in the 108th Congress
SUMMARY
This issue brief provides an overview of
utility security, expanding authority for an
some of the key environmental protection
EPA ombudsman, environmental concerns in
issues that have been and are likely to con-
surface transportation reauthorization legisla-
tinue to be the focus of public and congressio-
tion, brownfields grants, environmental issues
nal attention. The individual sections below,
in comprehensive energy legislation, and
on specific issues, reference more detailed
defense cleanup and military/environment
CRS reports.
issues.
The initial focus of the 108th Congress
These issues are discussed in this report,
was on finalizing FY2003 funding not com-
along with other issues likely to be on the
pleted by the 107th Congress. Appropriations
environmental agenda: Clean Air Act issues;
for the Environmental Protection Agency
Clean Water Act; Safe Drinking Water Act;
(EPA) were among those unresolved, and a
climate change; chemical plant security; and
number
of
controversial
environmental
alternative fuels and vehicles. (The major
amendments were under debate as Congress
emphasis in this issue brief is on pollution-
considered a consolidated appropriations act,
related issues; environmental issues focused
H.J.Res. 2 (P.L. 108-7). As approved, it in-
on natural resource management are not in-
cluded $8.0 billion for EPA for FY2003.
cluded here.)
Budgetary attention next turns to the FY2004
appropriations, for which the request for EPA
The status of committee and floor action
is $7.6 billion, or 5% less than approved for
on environmental legislation is shown in
FY2003. A proposed reduction in wastewater
Table 1 at the end of the issue brief. Bills
infrastructure assistance is likely to be a key
receiving congressional action include the
EPA funding issue.
House and Senate Energy bills, H.R. 6 and S.
14; the Wastewater Treatment Works Security
In addition to the EPA appropriations
Act of 2003, H.R. 866 and S. 1039; the Un-
activity for FY2003 and upcoming debates
derground Storage Tank Compliance Act of
over EPA funding for FY2004, a number of
2003, S. 195; the Ombudsman Reauthoriza-
key issues are likely to see, or have seen, early
tion Act, S. 515; and the Brownfields Rede-
action in the 108th Congress, including leaking
velopment Enhancement Act, H.R. 239.
underground storage tanks that may contami-
nate water supplies, wastewater treatment
Congressional Research Service
˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On April 11, the House passed H.R. 6, a comprehensive energy bill. Among its
provisions were amendments to the Clean Air Act’s reformulated gasoline (RFG) program,
eliminating the requirement that RFG contain 2% oxygen and establishing a new requirement
that an increasing percentage of gasoline contain renewable fuels such as ethanol. It would
also authorize renewable energy projects, provide for MTBE cleanup, and provide energy tax
incentives. On June 3, the Senate Environment and Public Works Committee reported
MTBE cleanup and renewable fuels provisions in S. 791, which would also provide a ban
on the use of MTBE in motor fuels, except in states that specifically authorize its use. These
provisions, with few modifications, were incorporated in S. 14, the Senate’s comprehensive
energy bill, by amendment (S.Amdt. 850) on June 5. Senate consideration of S. 14 is
expected to continue into July.
The Ombudsman Reauthorization Act (S. 515, S.Rept. 108-50) passed the Senate May
21, 2003, increasing the office’s independence and authority over programs administered by
the Office of Solid Waste and Emergency response. On May 7, 2003, the House passed H.R.
866, to authorize grants for wastewater utilities to assess their vulnerability to possible
terrorist attacks. The Senate Environment and Public Works Committee has approved a
similar bill (S. 1039). On May 1, 2003, the Senate passed S. 195, the Underground Storage
Tank Compliance Act of 2003, to address drinking water contamination caused by leaking
underground tanks, and specifically contamination caused by leaks involving the gasoline
additive methyl tertiary butyl ether (MTBE). See Table 1 at the end of this issue brief for
a summary of action on environmental bills.
BACKGROUND AND ANALYSIS
In the first six months of the 108th Congress, legislative action has been taken on a
number of environmental measures, many of which represent unfinished proposals or
initiatives that were under consideration in the 107th Congress. These include funding levels
and implementing requirements concerning grant funds for leaking underground storage
tanks; brownfields and Superfund; sewage treatment facility security; ground water
contamination by the fuel additive MTBE; various environmental protection programs in
the comprehensive energy bill; and Department of Energy and Department of Defense
environmental cleanup programs, which include provisions concerning specific
environmental matters of congressional concern. All of these are discussed in the sections
below, and action is summarized in Table 1.
Other major issues on the environmental protection agenda of the 108th Congress will
likely include consideration of appropriations for EPA, the Administration’s “Clear Skies”
proposal concerning air quality regulation, continuing interest in energy conservation and
climate change, and an Administration proposal concerning treaties controlling certain
persistent pesticide and other chemical pollutants.
Also under consideration are the
authorization of environmental grant programs within the Surface Transportation
authorization, more commonly known as the Transportation Equity Act for the 21st Century
(TEA-21), which expires at the end of FY2003; and oversight of various programs, including
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a Clean Water Act program for restoring pollution-impaired waters, New Source Review
regulations implementing provisions of the Clean Air Act, and research and other programs
relating to climate 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.
The discussion of each of the major environmental protection issues below focuses on
the nature of the issues and expected activity in the 108th Congress. 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, 2003, 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. CRS
Issue Brief IB10101, the Environmental Protection Agency’s FY2003 Budget discusses these
actions more fully.
P.L. 108-7 includes an FY2003 EPA level of $8.08 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. P.L. 108-7 restored $314
million of the water infrastructure funding.
In the FY2004 budget presented February 3, the President requests $7.7 billion in
budget authority for the EPA, $451 million (or 6%) less than the FY2003 level of $8.08
billion provided under P.L. 108-7. A proposed reduction of $713 million, or 19%, in the
State and Tribal Assistance Grants account contributes to the overall reduction. 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
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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.
While considering the FY2004 budget resolution (S.Con.Res. 23), the Senate adopted
a provision allowing for the increased wastewater and clean water funds by as much as $3
billion and rejected provisions to restore the Superfund tax and to increase natural resources
and environment funding overall.
[This section prepared by Martin R. Lee, Specialist in Environmental Policy, x7-7260]
Clean Air Issues
The most prominent air quality issue in recent months has been the controversy over
EPA’s proposed changes to the New Source Review (NSR) requirements, which impose
emission controls on modifications of power plants and other major facilities. In its
consideration of the omnibus FY2003 appropriation bill (H.J.Res. 2) on January 22, the
Senate narrowly defeated an amendment that would have delayed implementation of changes
to the requirements pending a study by the National Academy of Sciences (NAS). The
Senate did approve a separate amendment directing NAS to conduct such a study, but not
delaying implementation of the standards. The President signed the bill, with the latter
amendment, February 20 (P.L. 108-7).
On April 22, the National Academy of Public Administration released a congressionally
requested report on NSR. The report recommended that NSR be retained for new sources
and vigorously enforced for changes at existing facilities. It also recommended that all major
emission sources that have not obtained an NSR permit since 1977 (the so-called
“grandfathered” facilities) be required to install the Best Available Control Technology or
achieve the Lowest Achievable Emission Rate within the next 10 years.
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 more stringent version of multi-pollutant legislation (Senator Jeffords’
S. 556) on June 27, 2002, which included regulation of emissions of the main greenhouse
gas, carbon dioxide; but the Administration and much of the electric power industry opposed
the bill, and it did not reach the Senate floor. “Clear Skies” legislation (S. 485/H.R. 999) was
reintroduced in the 108th Congress, February 27. Senator Jeffords and Senator Carper have
also reintroduced their bills with minor changes (S. 366 and S. 843, respectively). The Clean
Air Subcommittee of Senate Environment and Public Works has held three hearings on the
Clear Skies proposal, on April 8, May 8, and June 5.
Another holdover issue from previous Congresses concerns regulation of the gasoline
additive 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 comb-
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ustion.
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) take 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). The comprehensive energy bill that passed the House
April 11, 2003 (H.R. 6) addresses some of these issues, eliminating the oxygen requirement,
providing funds for the cleanup of MTBE in ground water and for conversion of MTBE
production facilities, and requiring the use of renewable fuels such as ethanol in gasoline.
It does not ban the use of MTBE, however. On April 9, the Senate Environment and Public
Works Committee ordered similar legislation (S. 791) to be reported. The Senate bill, which
was added with few changes to the Senate’s comprehensive energy bill still under
consideration, would ban MTBE use in motor fuels 4 years after the date of enactment,
except in states that specifically authorize its use.
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 been the subject of 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 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. Three other bills, H.R. 1245, S. 17, and S. 194 would establish mandatory
greenhouse gas registries, but would not require emission reductions.
In the 108th Congress, a discussion of climate change legislation is likely to take place
during the Senate debate over a comprehensive energy bill. On April 11, 2003, the House
passed H.R. 6. This bill did not contain any provisions on climate change. The Senate is
currently debating its version of energy legislation, S. 14. While the current bill does not
contain climate related provisions, floor amendments on climate change are likely. Other
congressional action on climate change is possible in the context of multi-pollutant
legislation. Three multi-pollutant bills introduced in the 108th Congress include carbon
dioxide among the emissions to be reduced: S. 366, introduced by Senator Jeffords, S. 843,
introduced by Senator Carper, and H.R. 2042, introduced by Representative Waxman. S.
366 and H.R. 2042 would require electricity generators to reduce their carbon dioxide
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emissions to their 1990 levels by 2009 while S. 843 would require such sources to reduce
their emissions to their 2001 levels by 2013.
In both the House and Senate State Department authorization bills as reported (Section
730 of H.R. 1950 and Section 813 of S. 925) a “Sense of Congress on Climate Change” is
included that urges the United States “...to demonstrate international leadership and
responsibility in reducing the health, environmental, and economic risks posed by climate
change...” through a number of actions such as action to ensure reductions in greenhouse
gases, participating in international negotiations, and others.
In addition to congressional action, the Administration has stated a goal of reducing
U.S. greenhouse gas intensity. Greenhouse gas intensity (the ratio of greenhouse gas
emissions to economic output), is effectively a measure of the efficiency of the economy.
The Administration’s proposal is to reduce greenhouse gas intensity 18% by 2012. Under
this scenario, actual greenhouse gas emissions would still increase if the economy continued
to grow.
(For further discussion , see CRS Report RL31931, Climate Change: Federal Laws and
Polices Related to Greenhouse Gas Reductions; 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
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, 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 that are projected to be as much as $390 billion over the next two
decades. Several 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; H.R. 784/S. 567; H.R.
1560). 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
(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
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federal funds and application of requirements under the Davis-Bacon Act to pay prevailing
wages on federally funded projects.
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.) In the
108th Congress, the House has passed legislation to authorize grants for wastewater utilities
to assess the vulnerability of their facilities to possible terrorist attack (H.R. 866). The
Senate Environment and Public Works Committee has approved a similar bill (S. 1039).
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.
For additional background information, see CRS Report RL30030, Clean Water Act:
A Summary of the Law.
[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. Major drinking water
issues in the 107th Congress included infrastructure funding, and the security of water
supplies. Legislation also targeted contamination caused by the gasoline additive methyl
tertiary butyl ether (MTBE). Congress enacted drinking water security legislation, but
infrastructure funding and MTBE issues were left unresolved.
The 108th Congress has renewed efforts to address the problem of water contamination
caused by MTBE. The House and Senate each have acted on bills that authorize funding to
remediate MTBE contamination, including: the Senate-passed underground storage tank bill,
S. 195; the House-passed energy bill, H.R. 6; and a broad fuels bill that also bans MTBE, S
791, reported by the Senate Environment and Public Works Committee. On June 6, 2003,
S. 791 was added by amendment to the Senate energy bill, S. 14 (See section below on
Leaking Underground Storage Tanks.)
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Several bills address contamination by another chemical that is not regulated under
SDWA; i.e., perchlorate, the main ingredient in solid rocket fuel. H.R. 2123 and S. 502
require EPA to issue a drinking water standard for perchlorate by July 1, 2004. H.R. 2123
further directs EPA to carry out a loan program to help water suppliers and private well
owners address perchlorate contamination. House and Senate-passed versions of H.R. 1588,
the Department of Defense (DOD) authorization act for FY2004, call for an epidemiological
study of exposure to perchlorate in drinking water. The Senate-passed bill also directs DOD
to survey perchlorate contamination at DOD sites.
A long-standing SDWA issue concerns the ability of public water systems to upgrade
or replace infrastructure to comply with federal drinking water regulations and, generally, to
ensure the provision of a safe and reliable water supply. In the 1996 SDWA Amendments,
Congress authorized a drinking water state revolving loan fund (DWSRF) program to help
water systems finance infrastructure projects needed to meet SDWA standards and to address
serious health risks. Since FY1997, Congress has provided some $6 billion for the program,
including nearly $850 million for FY2003. The Administration has requested $850 million
again for FY2004. However, a large existing funding gap is expected to grow as EPA issues
new standards, and infrastructure ages. In the 107th Congress, the Senate Environment and
Public Works Committee reported a water infrastructure financing bill to increase funding
authority for the DWSRF program and create a grant program for small systems. Legislation
addressing drinking water infrastructure funding and related SDWA compliance issues will
likely receive attention again in this Congress. However, in the current environment of tight
budgets and competing priorities, questions concerning the appropriate federal role in
funding water infrastructure could receive renewed attention.
Drinking water security also is likely to remain an issue for Congress. The Public
Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188)
amended the SDWA to require large community water systems to conduct vulnerability
assessments and prepare emergency response plans. The Act authorized funding for these
activities, and 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. (For more information, see CRS Report RL31294, Safeguarding the
Nation’s Drinking Water: EPA and Congressional Actions.)
For further discussion of drinking water issues, see CRS Issue Brief IB10118, Safe
Drinking Water Act: Implementation and Issues. For a review of the SDWA, see CRS
Report RL31243, Safe Drinking Water Act: A Summary of the Act and Its Major
Requirements.
[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
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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
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.
The 108th Congress has moved legislation to address the contamination of drinking
water by MTBE. On May 1, 2003, the Senate passed S. 195, the Underground Storage Tank
Compliance Act of 2003 (S.Rept. 108-13), which adds new leak prevention and enforcement
provisions to the RCRA UST program. The bill also authorizes the appropriation of $125
million from the LUST Trust Fund for remediating MTBE contamination.
On April 11, 2003, the House passed H.R. 6, a broad energy bill, that authorizes the use
of $850 million from the LUST Trust Fund for responding to releases of fuels containing
oxygenates (e.g., MTBE, other ethers, and ethanol). H.R. 6 eliminates the oxygen content
requirement in the Clean Air Act for reformulated gasoline (RFG), which prompted the
increased use of MTBE. It also promotes the use of renewable fuels and contains a “safe
harbor” provision to protect manufacturers of fuels containing MTBE and renewable fuels
(e.g., ethanol) from product liability lawsuits. On June 3, the Senate Environment and Public
Works Committee reported S. 791 (S.Rept. 108-57), which bans MTBE, promotes the use
of renewable fuels, and contains a product liability safe harbor for renewable fuels, but not
MTBE. S. 791 authorizes the use of $200 million from the Trust Fund for remediating
contamination from releases of ether fuel additives and authorizes additional funding for the
enforcement of UST leak prevention requirements. The bill states that the contamination
need not be from USTs to be eligible for cleanup funding. On June 6, the text of S. 791 was
added as an amendment to the Senate energy bill, S. 14. Other introduced bills include: H.R.
1122, which authorizes the use of $200 million from the LUST Trust Fund for cleaning up
MTBE contamination and for related activities; two broad fuels bills, H.R. 837 and S. 385,
that ban MTBE, promote the use of renewable fuels, provide a product liability safe harbor
for such fuels, and provide cleanup funding for MTBE and other ether fuel additives; and
H.R. 2136, which bans MTBE, repeals the oxygenate requirement, and authorizes the use of
$850 million from the LUST Trust Fund. (For more information on this issue, see CRS
Report RS21201, Leaking Underground Storage Tanks: Program Status and Issues.)
[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.
Activity relevant to those issues in the 108th Congress includes the reporting of H.R. 239,
making brownfield grants administered by the Department of Housing and Urban
Development (HUD) more accessible to smaller communities, and Senate passage of S. 515,
the Ombudsman Reauthorization Act. (For more information, see CRS Issue Brief IB10114,
Brownfields and Superfund Issues in the 108th Congress.)
The HUD bill, H.R. 239, would remove the connection between HUD’s Brownfield
Economic Development Initiative (BEDI) 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 would also authorize appropriations for a HUD
pilot program for national redevelopment of brownfields. The House Financial Services
Committee reported H.R. 239 (H.Rept. 108-22) on March 5, 2003. The president’s FY2004
budget request proposes eliminating the HUD brownfields program.
Another issue, continued from the 107th Congress, concerns the Ombudsman
Reauthorization Act (S. 515, S.Rept. 108-50), which would provide the EPA ombudsman
increased independence and authority regarding Superfund and brownfields, as well as other
programs in the agency’s Office of Solid Waste and Emergency Response (OSWER).
OSWER also administers EPA’s solid waste, leaking underground storage tank, oil spill, and
chemical emergency preparedness and prevention activities. The bill would give the officer
power to conduct investigations, make findings of fact, hold public hearings, and make non-
binding recommendations to the EPA Administrator concerning those programs. The Senate
passed S. 515 on May 21, 2003, and the bill is now before the House Energy and Commerce
Subcommittee on Environment and Hazardous Materials. Rep. Bilirakis introduced a
companion bill, H.R. 347, on January 27, 2003.
The future financing of Superfund activities continues to be a controversial issue. The
taxes that originally fed the Superfund 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. On March 25, 2003, Senator Lautenberg
offered S.Amdt. 408 to S.Con.Res. 23 (FY2004 Budget Resolution) to reinstate the
Superfund taxes; it failed on a 43-56 vote. 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.)
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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
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.
[This section prepared by Mark Reisch, Analyst in Environmental Policy, 7-7255]
Chemical Security and Toxic Substance Control Issues
Deliberations begun in the 107th Congress are continuing in the 108th about how to
manage risks associated with terrorism aimed at facilities storing or handling large quantities
of potentially dangerous chemicals. The Chairman of the Senate Committee on Environment
and Public Works has made legislation addressing chemical facility security a high priority,
and has introduced legislation, S. 994, derived from a proposal developed by the Bush
Administration. The bill would require owners or operators of facilities designated by the
Secretary of the Department of Homeland Security (DHS) to conduct vulnerability
assessments and develop security and emergency response plans. Assessments and plans
would remain at the facilities, unless requested by the Secretary of DHS. Another proposal,
S. 157 (also contained in Title XI of S. 6 and in H.R. 1861), would require vulnerability
assessments, risk reduction plans, and risk reduction, in part by use of "inherently safer"
technologies, if practicable. S. 157 would require submission of assessments and plans to
EPA. A modified version of S. 157 was introduced as an amendment (S.Amdt. 462) to S.
762, a bill providing supplemental appropriations for FY2003. It would have given DHS the
lead role in chemical plant security and established a $50 million Technology Transition
Fund to provide grants to chemical facilities demonstrating financial hardship, to assist them
in adopting inherently safer technology. The amendment was not considered due to an
objection to legislating on an appropriation bill. Other proposals, S. 565/H.R. 1593 and S.
87/H.R. 1007, would provide funding for grants to state and local governments that could
be used to improve security at chemical plants, as well as to enhance emergency planning and
preparedness for terrorist acts. The law that established the DHS (P.L. 107-296) limits
access to sensitive information potentially useful to terrorists, by exempting information
about critical infrastructures from disclosure requirements of the Freedom of Information Act
(FOIA), if the information is submitted voluntarily to DHS. S. 609 would narrow this FOIA
exemption to "records" concerning the "vulnerability of and threats to critical infrastructure
protection." (For more on this topic, see CRS Report RL31530, Chemical Plant Security.)
Another issue of potential interest to Congress is EPA's "High Production Volume
(HPV) Challenge" program. Under this initiative, chemical manufacturers will voluntarily
gather the basic data that are needed to assess the potential toxicity of approximately 3,000
chemicals produced in the United States in volumes greater than one million pounds per year,
and to make those data available to the general public before 2005. EPA found in 1998 that
data were inadequate to estimate potential health and environmental effects for 93% of HPV
chemicals. More than 400 chemical manufacturers have agreed to submit data. However,
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there remain hundreds of HPV chemicals which no manufacturer has volunteered to collect
data. EPA issued a proposed rule in August 2000 that would have mandated testing for 37
of these unsponsored chemicals, but the rule has not yet been promulgated. At issue is
whether a voluntary initiative or a compulsory rule is the better way to obtain data.
Environmental Defense, an environmental advocacy group, supports the voluntary testing
initiative as a means of quickly filling data gaps. Animal rights advocates argue that rather
than relying on a voluntary program, EPA should promulgate a rule requiring data
submission, believing that a rule would garner more useful data from more chemical
manufacturers, and obviate the need for much animal testing. For more on this issue, see
CRS Report IB94036, The Role of Risk Analysis and Risk Management in Environmental
Protection. Background information on EPA's statutory authority for regulating chemicals
is provided in CRS Report RL31905, The Toxic Substances Control Act: A Summary of the
Act and Its Major Requirements.
Other chemical issues that Congress might address include funding for lead hazard
abatement and legislation to allow U.S. implementation of the Stockholm Convention on
Persistent Organic Pollutants (POPs). (For a discussion of the latter, see CRS Report 31652,
Persistent Organic Pollutants: Background and Issues for Congress.)
[This section prepared by Linda Schierow, Environmental Policy Specialist, 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 is expected to be a major item on the agenda of the
108th Congress. The Administration’s reauthorization proposal, the Safe, Accountable,
Flexible, and Efficient Transportation Act of 2003 (SAFETEA), was introduced in the House
(H.R. 2088) on May 14, 2003, and in the Senate (S. 1072) on May 15,2003.
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 the Congestion Mitigation and Air
Quality Improvement Program (CMAQ) to assist states in complying with federal air quality
standards, and for environmentally related transportation enhancements. (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 and other
programs, and discusses key reauthorization issues.)
Reauthorization of the CMAQ program is likely to receive attention due to questions
regarding its impact on state compliance with federal air quality standards. Proposals to
enhance the program’s effectiveness, or possibly to shift its focus away from air quality to
reducing traffic congestion in general, may be considered. SAFETEA would retain the basic
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structure of the program and increase its total funding by nearly $750 million above the
previous authorization of $8.1 billion. It also would revise the funding formula to ensure that
states with new “nonattainment” areas (those that do not meet stricter federal air quality
standards finalized in 1997) receive greater funding, and would require further study of the
program’s effectiveness.
SAFETEA would continue support for other environmental
programs as well, with the exception of those dedicated to the support of low-emission
transit buses and advanced vehicle technologies, which were not fully implemented due to
lack of funding.
Another potential issue is whether to take further legislative action to streamline the
environmental review process for surface transportation projects. While TEA-21 required
the Secretary of Transportation to streamline the process, regulations have yet to be finalized,
and most actions have been administrative in nature. The lack of regulatory action may
prompt interest in establishing a new review process in federal statute. SAFETEA would not
create a new process, but would attempt to improve the coordination of project reviews by
allowing greater participation of project sponsors and states. It also would allow states to
make certain decisions necessary for project approvals. Additionally, SAFETEA would
amend current statutory requirements that specify the conditions under which parks and
recreational lands, wildlife and waterfowl refuges, and historic sites may be used for a
transportation project. While some argue that these changes would help to increase the pace
of project approvals, others believe that environmental protection might be compromised.
(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 EPA 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 natural
resources on 25 million acres of land located on military installations. To fulfill these
responsibilities, DOD administers five environmental programs that clean up past
contamination at current and former military facilities, comply with environmental laws that
apply to ongoing military operations, prevent pollution, develop 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. (For information on each of these programs and a discussion of key
implementation issues, see CRS Report RL31456, Defense Cleanup and Environmental
Programs: Authorization and Appropriations for FY2003.)
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 may conflict with
military readiness needs. Of these issues, balancing environmental compliance with military
readiness has received increasing attention. While numerous environmental statutes include
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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. In March,
DOD submitted its Readiness and Range Preservation Initiative (RRPI) to Congress to
address this issue. The initiative sought targeted exemptions for military readiness activities
from five federal environmental laws, including the Clean Air Act; Endangered Species Act;
Solid Waste Disposal Act; Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA); and Marine Mammal Protection Act.
The RRPI received significant attention in the debate over the FY2004 defense
authorization bill (H.R. 1588). As passed, both the House and Senate versions of the bill
include provisions that are similar to what DOD proposed to limit the designation of critical
habitat under the Endangered Species Act on military installations, if certain conditions are
met. Unlike the Senate bill, the House bill also includes a provision to address compliance
with the Marine Mammal Protection Act. Neither bill includes the provisions that DOD
proposed to address compliance with the Clean Air Act, Solid Waste Disposal Act, or
CERCLA. However, the House bill would require DOD to prepare a report that would
identify the extent to which these three statutes have affected military readiness needs. Both
bills also include provisions that would require a study of the effects of perchlorate on human
health, which is a substance commonly used in munitions propellants. Unlike the House bill,
the Senate bill includes an additional requirement for DOD to submit a survey of perchlorate
contamination on military installations. Both bills also include a host of other environmental
provisions, and they would authorize nearly the same amount of funding requested for
cleaning up contamination at DOD sites ($1.7 billion) and at DOE’s defense nuclear waste
sites ($6.8 billion). Differences between the two bills will be resolved in conference. Debate
of FY2004 defense appropriations has also begun. As reported, H.R. 2559 would appropriate
$370 million for base closure activities, including the cleanup of environmental
contamination, equal to the amount requested by the Administration.
[This section prepared by David Bearden, Environmental Policy Analyst, 7-2390.]
Alternative Fuels and Advanced Technology Vehicles
The development of alternative fuels and advanced technology vehicles has emerged
as a key issue in the 108th Congress. Advanced technology vehicles, such as gasoline- or
diesel-electric hybrids and fuel cell vehicles, have the potential to significantly increase
passenger vehicle fuel economy and reduce vehicle emissions. However, mass-production
of these vehicles is currently cost-prohibitive, and for alternative fuels there are many
technical and cost barriers associated with producing, storing, and delivering the fuel.
Therefore, there is interest in Congress and the Administration to support vehicle and fuel
development, and promote their entry into the marketplace.
Hydrogen fuel and fuel cell vehicles have received special attention. On January 28,
2003, the Administration announced the President’s Hydrogen Fuel Initiative, which aims
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to increase funding for hydrogen fuel and fuel cell research by $720 million over the next 5
years. This initiative complements the FreedomCAR partnership, announced in January
2002, which focuses on cooperative research and development of fuel cell passenger
vehicles. The funding for these initiatives will be debated when Congress considers the
FY2004 Energy and Water Development (hydrogen research) and the Interior and Related
Agencies (fuel cell research and FreedomCAR) appropriations bills.
In addition to appropriations bills, Congress is currently considering comprehensive
energy legislation. On April 11, 2003, the House passed H.R. 6. Among other provisions,
this energy bill would authorize hydrogen and fuel cell funding at the Administration's
requested levels - a total of $1.8 billion over 5 years. The Senate is currently considering S.
14. This bill would authorize an increase in hydrogen and fuel cell funding above the
Administration's request — a total of $3 billion over 5 years. In addition, on June 10, the
Senate voted 67-32 to approve Senator Dorgan's amendment (S.Amdt. 865) to establish goals
of producing 100,000 hydrogen-fueled fuel cell vehicles by 2010 and 2.5 million by 2020,
with annual production of 2.5 million thereafter.
The goals are not binding, but the
Department of Energy would be required to develop a plan for research, development,
demonstration, and commercial application in support of the goals and in support of the
development of technologies to provide for the sale of hydrogen at a sufficient number of
fueling stations in the United States. DOE would also be required to include in each annual
budget submission a review of the progress made toward meeting the goals.
Another key component of the House energy bill would be a renewable fuels standard.
This standard would require the use of 5 billion gallons of renewable fuel in gasoline by
2015. It is likely that this requirement would be met primarily by ethanol. In the Senate, a
similar bill, S. 791, was reported by the Environment and Public Works Committee on June
3 (S.Rept. 108-57) and incorporated in S. 14 as S.Amdt. 850 on June 5. The Senate
provisions would require the use of 5 billion gallons of renewable fuel by 2012. Both House
and Senate bills would also extend or expand tax incentives for the purchase of alternative
fuel vehicles and the development of alternative fuel infrastructure.
The 108th Congress will also likely debate reauthorization of the main transportation
authorization bill, TEA-21 (see above discussion on Environmental Issues and Surface
Transportation).
Alternative fuel and advanced technology vehicle bills have been
introduced that could be inserted into the above legislation or debated as stand-alone bills.
Proposals include: increases in research and development funding (above the
Administration’s request); expanded tax incentives for the purchase of alternative fuel and
advanced technology vehicles; expanded incentives for the development of alternative fuel
infrastructure; and user incentives such as High Occupancy Vehicle (HOV) lane exemptions.
(For further discussion, see CRS Report RS21442, Hydrogen and Fuel Cell Vehicle
R&D: FreedomCAR and the President’s Hydrogen Fuel Initiative, and CRS Report
RL30758, Alternative Transportation Fuels and Vehicles: Energy, Environment, and
Development Issues.)
[This section prepared by Brent Yacobucci, Environmental Policy Analyst, 7-9662
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Table 1. Action on Environmental Legislation in the 108th Congress
Bill
Status
Purposes
H.R. 6
Passed the House
Among environmental provisions, amends the
Omnibus Energy bill
April 11, 2003
Clean Air Act’s reformulated gasoline (RFG)
(H.Rept. 108-65).
program, and includes provisions for R&D, energy
tax incentives, and MTBE cleanup.
H.R. 239
Reported by the
Makes HUD brownfield grants more accessible to
Brownfields
House Financial
small communities.
Redevelopment and
Services Committee
Enhancement Act
March 5, 2003
(H.Rept. 108-22).
H.R. 866
Passed the House
Authorizes funds to wastewater utilities for
Wastewater Treatment
May 7, 2003
vulnerability assessments.
Works Security Act of
(H.Rept. 108-33).
2003
H.R. 2559
Reported by the
Would provide funding for the cleanup of
Military Construction
House Appropriations
environmental contamination at base closure sites.
Appropriations Act for
Committee
FY2004
June 23, 2003
(H.Rept. 108-173)
S. 14
Floor debate begun
Energy and environmental provisions include R&D
Energy Policy Act of
May 8, 2003.
and production incentives. text from S. 791
2003
incorporated as an amendment Bans MTBE in
motor fuels, except in states that specifically
authorize its use, and increases production and use
of renewable fuels.
S. 195
Passed the Senate
Addresses drinking water contamination caused by
The Underground
May 1, 2003
leaking underground tanks, specifically
Storage Tank
(S.Rept. 108-13).
contamination caused by leaks involving methyl
Compliance Act of
tertiary butyl ether (MTBE).
2003
S. 515
Passed the Senate
Expands Ombudsman’s authority and
The Ombudsman
May 21, 2003
independence.
Reauthorization Act
(S.Rept. 108-22).
S. 791
Reported by the
Bans MTBE in motor fuels, except in states that
Reliable Fuels Act
Senate Environment
specifically authorize its use, addresses MTBE
2003
and Public Works
contamination, and increases production and use of
Committee
renewable fuels. Similar provisions incorporated in
June 3, 2003
S. 14, June 5 (S.Amdt. 850).
(S.Rept. 108-57)
S. 1039
Ordered reported by
Authorizes funds to wastewater utilities for
The Wastewater
Senate Environment
vulnerability assessments.
Treatment Works
and Public Works
Security Act of 2003
Committee
May 15, 2003.
H.R. 1588
Passed by the House
Among major environmental provisions, authorizes
National Defense
May 22, 2003
funding for environmental cleanup, provides greater
Authorization Act for
(H.Rept. 108-106).
compliance flexibility for DOD under the
FY2004
Endangered Species Act and Marine Mammal
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Protection Act, requires a report on the impact of
the Clean Air Act, Solid Waste Disposal Act, and
CERCLA on military installations, and requires a
study of exposure to perchlorate (used in munitions
propellents) on human health.
S. 1050
Passed by the Senate
Among major environmental provisions, authorizes
National Defense
May 22, 2003
funding for environmental cleanup, provides greater
Authorization Act for
(S.Rept. 108-46)
compliance flexibility for DOD under the
FY2004
Incorporated into H.R.
Endangered Species Act, and requires a study of
1588 as a substitute
perchlorate exposure, which are similar to H.R.
amendment and
1588. Unlike the House bill, also requires a survey
passed by the Senate
of perchlorate contamination on military
June 4, 2003.
installations. Does not include House provisions
regarding the Marine Mammal Protection Act or
reporting requirements regarding the Clean Air Act,
Solid Waste Disposal Act, and CERCLA.
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