Order Code IB10146
CRS Issue Brief for Congress
Received through the CRS Web
Environmental Protection Issues
in the 109th Congress
Updated March 25, 2005
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
Clean Water Act
Safe Drinking Water
Leaking Underground Storage Tanks
Superfund and Brownfields
Surface Transportation and Environment
Chemical Security and Regulatory Issues
Defense Environmental Cleanup and Other Issues
Alternative Fuels and Advanced Technology Vehicles

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Environmental Protection Issues in the 109th Congress
SUMMARY
Environmental protection concerns span
regulation would be made more effective or
a wide variety of issues, including clean air,
weakened by the legislation, and whether it
water quality, chemical security, and environ-
should include carbon dioxide. On March 16,
mental aspects of other major issue areas such
2005, the same committee ordered reported S.
as transportation and defense. This issue brief
606, the Reliable Fuels Act, which would
provides an overview of key environmental
amend the Clean Air Act to ban the gasoline
issues that are receiving or may receive atten-
additive MTBE, and providing for a replace-
tion in the 109th Congress. The sections on
ment additive — ethanol.
specific issues contain references to more
detailed and extensive CRS reports on the
The House Financial Services Committee
subjects covered.
reported H.R. 280, a bill to make HUD
brownfield grants more accessible.
(It should be noted that this issue brief
treats mainly pollution-related matters; for
Appropriations for the Environmental
natural resource management issues, see CRS
Protection Agency (EPA) affect many of the
Report RL32699, Natural Resources: Selected
programs and issues discussed in this issue
Issues for the 109th Congress.)
brief; therefore, EPA’s annual funding is an
issue of perennial interest, and related issues
One of the first environmental issues to
and action are the subject of the first section
be the subject of actions in the 109th Congress
below.
was air quality. The Senate Environment and
Public Works Committee held hearings and
As bills receive committee or floor ac-
scheduled markup of S. 131, the Clear Skies
tion, they will appear in a table at the end of
Act. However, the bill failed on a tie vote
this report, providing a brief description of
March 9, 2005, owing to the contentious
each bill and its current status.
nature of the debate over whether clean air
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
One of the first environmental issues to be the subject of attention in the 109th Congress
was air quality. The Senate Environment and Public Works Committee held hearings on S.
131, the Clear Skies Act, on January 26 and February 2, 2005, and rescheduled markup of
the bill several times, owing to unresolved differences among committee members. Markup
occurred on March 9, 2005, and the bill failed on a tie vote, preventing it from being reported
to the floor.
Another issue that has received early attention is the treatment of renewable fuels and
methyl tertiary butyl ether (MTBE). On March 16, 2005, the Senate Environment and Public
Works Committee ordered reported S. 606, the Reliable Fuels Act. This bill would require
the use of 6 billion gallons of ethanol or other renewable fuels by 2012, and it would ban the
use of the gasoline additive MTBE. It would also amend reformulated gasoline standards
under the Clean Air Act.
On March 16, 2005, the House Financial Services Committee reported H.R. 280, a bill
to make HUD brownfield grants more accessible to smaller communities.
BACKGROUND AND ANALYSIS
The 109th Congress will have before it a variety of disparate environmental measures.
Many of these will reflect continuing consideration of issues that were before the 108th and
prior Congresses. These will include issues that were considered but not enacted, as well as
annually occurring legislation on such matters as Environmental Protection Agency (EPA)
appropriations, and defense and environment. In light of major concerns over the current
federal budget deficit, many of the issues present difficult or potentially controversial
choices. However, in general, as in the 108th Congress, environmental issues may not be
ranked particularly high on the 109th Congress’s agenda, relative to other matters.
Environmental issues considered by Congress tend to fall into several major categories:
(1) funding issues — whether funding levels are adequate and/or focused on appropriate
priorities; in light of the current federal budget deficit, reductions in the budget request for
EPA and other programs will present difficult choices, and questions about the adequacy of
funding levels will continue to be debated in such areas as water quality infrastructure and
Superfund cleanup; (2) expanding, renewing, or refocusing existing environmental policies
or programs — the refocusing of air quality requirements in the current Congress, for
example; (3) environmental issues that are important elements of other major areas of
concern; for example, the issue of streamlining environmental reviews in transportation
reauthorization legislation, including environmental provisions in comprehensive energy
bills, or including environmental issues in defense authorization or appropriations; and (4)
terrorism and infrastructure protection in areas such as water infrastructure and chemical
facilities.
A large number of bills passed one or both houses in the 108th Congress, and many of
these issues will again be considered in the 109th Congress. (Archived CRS Issue Brief
IB10115, Environmental Protection Issues in the 108th Congress [available from the
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authors], contains a table that shows the status of action on environmental bills both
considered and enacted.) Issues that were the subject of action in the last Congress included
contamination of groundwater from leaking underground storage tanks, especially by MTBE,
an additive in vehicle fuel; brownfields cleanup and development; comprehensive energy
legislation containing a number of environmental provisions; security at sewage treatment
facilities; and environmental provisions of defense and transportation authorization bills.
In the 109th Congress, early action occurred on S. 131, Clear Skies legislation, originally
scheduled for markup in February but rescheduled several times for dates in March, due to
the highly contentious nature of the debate over whether clean air regulation would be made
more effective or weakened by the bill. Another aspect of the bill over which there were
divisions in the Senate Environment and Public Works Committee — and in Congress
generally — was whether carbon dioxide, the major greenhouse gas contributing to climate
change, should be regulated in this legislation. Markup occurred on March 9, and the bill
failed on a tie vote, which prevented it from being reported to the floor.
While the overall authorizations for most environmental protection statutes have
expired, program activities continue, as Congress has regularly appropriated funds to
implement these laws. Thus, the fact that authorizations have expired has not been a
significant impetus for legislative activity to reauthorize them. However, demands for or
constraints on funding programs will present particularly difficult choices and decisions in
the 109th Congress.
The discussion of major environmental protection issues below focuses on selected key
environmental concerns and related activity in the 109th Congress. It is not intended to
provide comprehensive coverage of all environmental issues; in particular, it does not
address issues involving public lands and natural resources (for information on the latter, see
CRS Report RL32699, Natural Resources: Selected Issues for the 109th Congress). For an
overview of major environmental pollution control laws, see CRS Report RL30798,
Environmental Laws: Summaries of Statutes Administered by the Environmental Protection
Agency.
Environmental Protection Agency Appropriations
(By Robert Esworthy, Specialist in Environmental Policy, 7-7236)
Late in the second session, the 108th Congress completed action on the Consolidated
Appropriations Act for FY2005 (P.L. 108-447, H.R. 4818), incorporating 9 of the 13 annual
appropriations bills that fund numerous federal agencies. Division I of the act included
funding for Veterans Affairs, Housing and Urban Development (VA-HUD), and Independent
Agencies, the appropriations bill that funds EPA. Title III of Division I provided $8.09
billion for EPA, subject to an across-the-board rescission of 0.8% that applied to all agencies
funded by the act. The Administration had requested $7.79 billion for FY2005, and Congress
appropriated $8.37 billion for FY2004.
Most of the reduction relative to FY2004 was for federal assistance to states and tribes
for wastewater infrastructure projects, and for scientific research on human health effects
upon which pollution control standards are based. The reductions were contentious, with
disagreement as to whether the funding level was adequate to meet these needs. Funding for
the cleanup of hazardous waste sites under the Superfund program remained steady relative
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to FY2004. The Administration and some Members had advocated an increase in funding
to speed the pace of cleanup. Another point of contention was whether special taxes on
industry should be reinstated to reduce the use of general Treasury revenues to support the
Superfund program. As in FY2004, the Consolidated Appropriations Act did not reinstate
these taxes, but authorized the use of general revenues to pay for site cleanups instead. There
also were varying levels of interest in the adequacy of funding for numerous other activities.
(For more information, see CRS Report RL32441, Environmental Protection Agency:
Appropriations for FY2005.)
FY2006 appropriations for EPA, and all other federal agencies, will be on the agenda
in the first session of the 109th Congress. The President submitted his FY2006 budget
request to Congress on February 7, 2005, proposing $7.6 billion for EPA. The President’s
request proposed $730 million for wastewater infrastructure projects, a reduction from the
$1.1 billion appropriated in FY2005. In contrast to these and other reductions, the FY2006
EPA request also reflects increased funding for science and technology, Superfund,
brownfields, homeland security, and other program activities, compared to FY2005
appropriations.
Disagreement over funding levels for the programs listed above, and for other
environmental activities, will likely continue in light of the current budget deficit and the
many other public needs that compete for limited funding within the federal budget, such as
national defense, homeland security, and domestic social programs.
The consideration of annual appropriations involves numerous steps leading up to
enactment. In the 109th Congress, committee hearings have begun in the House and Senate
to examine the President’s FY2006 budget request for EPA. Following hearings, the House
and Senate appropriations subcommittees mark up their respective bills for full committee
consideration. Each full committee then marks up and reports each bill — it is only at that
time that bill numbers are assigned — followed by floor consideration. Historically, EPA’s
funding has been determined as part of a suballocation for VA-HUD and Independent
Agencies and its corresponding subcommittee. However, at the beginning of the 109th
Congress, the House Appropriations Committee approved a reorganization plan reducing the
number of subcommittees from 13 to 10. The Senate Appropriations Committee approved
the elimination of one subcommittee, leaving 12. Both reorganizations eliminate the VA-
HUD and Independent Agencies Subcommittees, incorporating EPA’s appropriation within
the jurisdiction of the Department of the Interior subcommittee.
In March 2005, the House and Senate Budget Committees reported FY2006 budget
resolutions, including budget authority (BA) allocations for the Natural Resource and
Environment Function (300). This function includes several federal land management
agencies and EPA. The resolution reported by the House Committee (H.Con.Res. 95,
H.Rept. 109-17) includes $30.51 billion (BA) for functional category 300, and the resolution
reported to the Senate (S.Con.Res. 18; reported without a written report) includes $29.88
billion (BA). While the budget resolutions specify funding at the functional level and
generally are non-binding, specific funding levels for EPA and other federal agencies are
determined in the appropriations process.
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Clean Air Issues
(By Jim McCarthy, Specialist in Environmental Policy, 7-7225)
Many of the air quality issues now under consideration are holdovers from the 108th
Congress, but they gained new impetus as a result of the election and looming judicial and
legislative deadlines. Specific issues include what to do about emissions of mercury and
other pollutants from coal-fired electric power plants; whether to restrict use of the gasoline
additive MTBE and other possible changes to the reformulated gasoline program; and how
to insure the conformity of local plans for transportation and clean air. Underlying the
specific issues are broad questions regarding the role of federal versus state governments and
the appropriateness of economic versus regulatory approaches.
The Clear Skies Act (S. 131), which would establish a cap-and-trade program to control
emissions of mercury, sulfur dioxide, and nitrogen oxides from power plants, was among the
first items on the agenda of the 109th Congress. The bill was scheduled for markup by the
Senate Environment and Public Works Committee March 9. But the committee failed to
approve it, on a 9-9 tie vote, in large part because of complaints that the bill would weaken
existing Clean Air Act requirements and delay emission reductions that could be achieved
under current law.
A deadline for mercury regulations has helped drive the Clear Skies debate: EPA faced
a judicial deadline of March 15, 2005, to promulgate standards for mercury emissions from
electric power plants. The agency met this deadline, but the specifics of its chosen regulation
have been widely criticized and are almost certain to be challenged in court. The agency also
finalized, on March10, the Clean Air Interstate Rule (CAIR), which will cap emissions of
sulfur dioxide and nitrogen oxides from power plants in 28 eastern states and the District of
Columbia.
Rather than promulgate these rules, the Administration would have preferred that
Congress pass the Clear Skies Act, which would replace the mercury requirement and half
a dozen other Clean Air Act regulatory programs with the market-based approach to
controlling power plant pollution. Under Clear Skies (as under the promulgated mercury and
CAIR regulations), there would be national or regional caps on emissions of mercury, sulfur
dioxide, and nitrogen oxides; utilities would receive a set number of allowances; and a
trading regime would permit compliance through installation of pollution controls or the
purchase and use of excess allowances. The CAIR and mercury regulations mimic much of
Clear Skies’ cap and trade approach, but EPA cannot remove existing Clean Air Act
requirements without new legislation. Whether to remove (or modify) such requirements as
New Source Review, deadlines for nonattainment areas, and provisions dealing with
interstate air pollution are among the key issues in the Clear Skies debate. Other issues that
Congress and EPA face include the costs and benefits of various levels of control, the
availability of control technology, and legal issues related to the mercury standard.
Besides Clear Skies, several other bills have been introduced on these issues in the 108th
and 109th Congresses: all of these have more stringent deadlines than the Clear Skies
proposal, and many set a cap on emissions of carbon dioxide in addition to the three
pollutants included in the Clear Skies bill. If Clear Skies returns for markup, amendments
based on these bills will likely be offered. One key difference among these bills is whether
carbon dioxide, the major greenhouse gas associated with climate change, would be
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regulated. Several Senators have indicated that their support would depend on inclusion of
carbon dioxide regulation, while others are strongly opposed to including it.
Like Clear Skies, other air issues that Congress faces are holdovers from the 108th
Congress, including the regulation of fuel additives used in reformulated gasoline. One
particular additive, MTBE, has contaminated groundwater in numerous states, leading 19 of
them (notably California and New York) to ban or limit its use. In the last three years, both
the House and Senate have passed bills to ban MTBE nationwide, but final passage has
proven elusive. Remaining issues include whether to grant MTBE producers a safe harbor
from product liability lawsuits and how much stimulus to provide for the potential MTBE
replacement, ethanol. The Senate Environment and Public Works Committee ordered a bill
(S. 606) reported on these issues on March 16, 2005. The bill would ban MTBE use in
motor fuels, with some exceptions, four years after enactment, and require the use of 6
billion gallons of ethanol or other renewable fuels by 2012. It would not give MTBE
producers the safe harbor that they seek.
A third set of issues seeing early action is whether to modify a requirement that state
and local transportation planners demonstrate conformity between their transportation plans
and the timely achievement of air quality standards. Failure to do so can lead to a temporary
suspension of federal highway funds. For additional information, see CRS Issue Brief
IB10137, Clean Air Act Issues in the 109th Congress.
Clean Water Act
(By Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227)
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. The
sole Clean Water Act legislation enacted by the 108th Congress was a bill to reauthorize the
National Estuary Program, H.R. 4731 (P.L. 108-399). 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 IB10142, Clean Water Act Issues in the 109th
Congress; for background, see CRS Report RL30030, Clean Water Act: A Summary of the
Law.)
Legislation to authorize funding for clean water infrastructure projects was a focus of
attention in the 108th Congress and is likely to be a prominent topic in the 109th Congress as
well. 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 high as $390 billion over the next two decades. In October 2004, the
Senate Environment and Public Works Committee reported legislation to authorize $20
billion over five years for the act’s State Revolving Fund (SRF) program, which assists
municipal wastewater treatment projects (S. 2550). In July 2003, a House Transportation and
Infrastructure Committee subcommittee had approved similar legislation (H.R. 1560). Both
bills would add provisions allowing states to offer additional subsidization to disadvantaged
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communities and longer loan repayment periods. They differ in a number of respects, such
as how to revise the formula for state-by-state allotment of SRF grants and whether to apply
prevailing wage requirements of the Davis-Bacon Act to projects that receive SRF funding
(in S. 2550 only). (For information, see CRS Report RL32503, Water Infrastructure
Financing Legislation: Comparison of S. 2550 and H.R. 1560.) No further action occurred
on either bill for several reasons, including controversies over the Davis-Bacon Act and
Administration opposition to funding levels in the bills.
Water infrastructure funding also has been an issue in the context of budget and
appropriations. The President’s FY2005 budget request sought $492 million less in Clean
Water Act assistance for FY2005 than Congress provided in FY2004. In final action on
appropriations legislation (P.L. 108-447), the House and Senate agreed to provide $1.1
billion for clean water SRF grants ($141 million more than in the President’s budget but
$231 million less than in FY2004) and also provided $402 million for earmarked water
infrastructure projects in specified communities. The President’s FY2006 budget requests
$730 million for clean water SRF grants, which is 33% less than was appropriated in FY2005
and 45.6% below the FY2004 funding level. Advocates of the SRF program (especially state
and local government officials) contend that the cuts will impair their ability to carry out
needed municipal wastewater treatment plant improvement projects. Administration officials
say that cuts for the SRF in FY2006 are because Congress boosted funds above their
requested level in FY2005.
Safe Drinking Water
(By Mary Tiemann, Specialist in Environmental Policy, 7-5937)
The Safe Drinking Water Act (SDWA) is the principal federal statute for regulating the
quality of water provided by public water systems. EPA has issued regulations covering 91
contaminants, and more rules are under development. Public water systems are required to
test and, if needed, treat their water to comply with the standards and treatment requirements
contained in these regulations. Congress last reauthorized this act in 1996, and although
funding authority for most SDWA programs expired in FY2003, broad reauthorization
efforts have not been pursued as EPA, states, and utilities continue efforts to implement the
1996 amendments and related regulations.
Several SDWA issues have received congressional attention in recent years. These
include the ability of water systems, especially small systems, to finance infrastructure
projects needed to comply with federal drinking water standards (such as the new arsenic
standard); and water contamination problems caused by specific contaminants, such as
methyl tertiary butyl ether (MTBE) and perchlorate (the key ingredient in solid water fuel).
(See MTBE discussion in the section below on “Leaking Underground Storage Tanks.”)
Also, the disclosure of high lead levels in Washington, DC’s tap water in 2004 raised
questions about the adequacy of, and compliance with, EPA’s lead rule. These concerns
prompted oversight hearings and the introduction of bills, and gave rise to a national review
to determine whether there was a more widespread problem. (See CRS Report RS21831,
Lead in Drinking Water: Washington, D.C., Issues and Broader Regulatory Implications.)
A perennial issue concerns the ability of water systems to improve infrastructure to
comply with drinking water standards and to ensure the safety of water supplies. The 1996
SDWA amendments created a drinking water state revolving loan fund (DWSRF) program
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to help systems finance projects needed to meet standards and address health risks. Congress
has provided $7.7 billion for this program, including $843 million for FY2005. The
President has requested $850 million for this program for FY2006. However, a large funding
gap is expected to grow, as systems act to comply with new standards and repair aging
infrastructure. Water infrastructure financing bills were reported in the past two Congresses,
and this issue remains on the agenda in the 109th Congress.
As in the past Congress, legislation has been offered in the 109th Congress to address
perchlorate contamination of water supplies. H.R. 213 would require EPA to promulgate a
drinking water standard for perchlorate before August 2007. EPA has not determined
whether to set a drinking water standard for perchlorate, and uncertainties regarding
perchlorate’s health effects and occurrence have slowed EPA’s efforts to make such a
determination. A January 2005 National Research Council (NRC) report on the health effects
of perchlorate ingestion could help resolve some of the scientific questions and facilitate state
and federal standard-setting efforts. In February, EPA adopted the NRC’s recommended
reference dose for perchlorate, which translates to a drinking water equivalent level of 24.5
parts per billion. EPA’s Superfund office plans to issue new cleanup guidance, based on the
NRC reference dose. The 108th Congress enacted several provisions to address perchlorate
contamination related to Department of Defense (DOD) activities. (For more information,
see CRS Report RS21961, Perchlorate Contamination of Drinking Water: Regulatory Issues
and Legislative Actions; and CRS Issue Brief IB10118, Safe Drinking Water Act:
Implementation and Issues.)
Leaking Underground Storage Tanks
(By Mary Tiemann, Specialist in Environmental Policy, 7-5937)
In 1984, Congress created a leak prevention, detection, and cleanup program under the
Resource Conservation and Recovery Act to address a nationwide problem of leaking
underground storage tanks (LUSTs) that store petroleum or hazardous chemicals. In 1986,
Congress created the 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
cleanup activities. Congress provided $69.4 million from the trust fund for FY2005, and the
President has requested $73 million for FY2006.
Much progress has been made in the tank program, but nearly 130,000 leaking tank sites
still require remediation. A key program issue is that cleanup costs have increased because
of the presence of methyl tertiary butyl ether (MTBE) at thousands of LUST sites; and
MTBE leaks have contaminated numerous drinking water supplies. (MTBE has been used
widely to meet the 1990 Clean Air Act requirement that oxygenated gasoline must be used
in areas that fail to meet the federal ozone standard.) Another issue is that most states have
not had adequate resources to fully enforce UST leak prevention regulations. Some states
have urged Congress to increase trust fund appropriations for LUST cleanup activities, and
to allow the fund to be used to enforce the leak prevention program. The trust fund balance
exceeds $2 billion. (See CRS Report RL32787, MTBE in Gasoline: Clean Air and Drinking
Water Issues, and CRS Report RS21201, Leaking Underground Storage Tanks: Program
Status and Issues.)
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The 109th Congress has acted on LUST legislation. H.R. 1270, which extends until
October 2005 the 0.1 cent-per-gallon motor fuels tax that finances the LUST Trust Fund,
passed the House on March 16, and the Senate on March 17, 2005. On March 16, the Senate
Environment and Public Works Committee ordered reported S. 606, the Reliable Fuels Act.
This bill would ban MTBE as a fuel additive in four years, except in states that specifically
authorize its use. It would require that motor fuels contain ethanol or other renewable fuel,
and remove the Clean Air Act’s oxygen content requirement for reformulated gasoline
(which prompted the increased use of MTBE). S. 606 also would authorize a one-time
appropriation of $200 million from the LUST Trust Fund for responding to releases of
MTBE and other fuel ethers, and authorize trust fund appropriations for enforcing leak
prevention regulations.
In the 108th Congress, the conference report for the energy bill, H.R. 6 (H.Rept. 108-
375), which was not approved by the Senate, proposed to broaden uses of the trust fund,
authorize appropriations from the fund to remediate MTBE and other oxygenated fuels leaks
(e.g., ethanol), and add new provisions to the UST regulatory program. H.R. 6 would have
phased out MTBE by 2014, although the President could decide not to ban it. H.R. 6 also
included a product liability safe harbor for MTBE and renewable fuels, and this contentious
provision contributed to the failure of the conference report in the Senate. (For more
information, see CRS Report RS21676, The Safe-Harbor Provision for MTBE.) The House
Energy and Commerce Committee discussion draft in the 109th Congress includes the LUST,
MTBE, and safe harbor provisions from H.R. 6.
Superfund and Brownfields
(By Mark Reisch, Analyst in Environmental Policy, 7-7255)
Increasing funding for cleanup of the nation’s hazardous waste sites, and expanding
exemptions from Superfund liability, may be areas of congressional interest in the 109th
Congress. The Superfund program addresses sites that pose significant threats to human
health and the environment, and the brownfields effort targets less seriously contaminated
sites.
Authority for taxes on industry that brought in about $1.48 billion annually to the
Superfund Trust Fund expired in 1995. The FY2004 and FY2005 appropriations (including
rescissions, $1,257.5 million and $1,247.4 million, respectively) came entirely from the
general fund of the Treasury, whereas in earlier years the general fund contributed 17% to
20%, and the balance of the appropriation was from the trust fund. The FY2006 request is
for $1,279.3 million. EPA has said that lack of funds prevented the initiation of cleanup
work at 34 sites in FY2004. The agency has also said that on average, new sites being
addressed are more costly, larger, and more complex than sites in the past. Reinstating the
taxes is opposed by congressional Republicans, EPA, and industry groups; congressional
Democrats and environmental organizations favor the idea.
Limiting the exposure of certain parties to Superfund liability may also be examined by
Congress. The Superfund law’s stringent liability scheme often subjects a wide variety of
persons — including the present owner of the facility — to strict, joint, and several liability
for cleanup and other costs. Past Congresses have limited the liability of financial
institutions and recyclers, as well as protecting those who sent only very small quantities of
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hazardous waste to a Superfund site, those who only sent municipal solid waste, and several
categories of “innocent parties.” For several years service station dealers have been seeking
to expand a limited existing exemption from liability for waste oil, and the issue may be
taken up in the 109th Congress.
Several brownfield provisions were enacted in the 108th Congress. The brownfields tax
incentive, which aids property developers, was reauthorized (P.L. 108-311), and a
demonstration program for brownfields using solar energy technologies was established in
the Economic Development Administration (P.L. 108-373). Also, P.L. 108-357 authorized
tax-exempt facility bonds for certain brownfields, and allowed tax-exempt entities to invest
in brownfields without incurring unrelated business income tax when they sell the property.
Finally, the Consolidated Appropriations Act, P.L. 108-447, included a provision for FY2005
making eligible for brownfields grants properties that were acquired prior to the enactment
of the Small Business Liability Relief and Brownfield Revitalization Act of 2001 (P.L. 107-
118) on January 11, 2002. Congress provided the same authority in FY2004.
Appropriations for EPA’s brownfields program were $168.5 million in FY2004, and
$163.7 million in FY2005 (after rescissions both years). The administration’s FY2006
budget request is $210.1 million.
In the 109th Congress, the Financial Services Committee reported H.R. 280 on March
16, 2005. The bill would make HUD brownfield grants more accessible to smaller
communities. Also, the transportation bill, H.R. 3, which was reported (H.Rept. 109-12,
parts 1 and 2) on March 7, 2005, would establish a pilot program to support planning
activities (including brownfield redevelopment planning) related to highway and public
transportation projects.
Surface Transportation and Environment
(By Linda Luther, Environmental Policy Analyst, 7-6852)
During the 108th Congress, the House and Senate passed legislation (H.R. 3550 and S.
1072) to reauthorize surface transportation programs for FY2004-FY2009.1 However,
conferees were unable to reach agreement on a final bill before the 108th Congress adjourned.
On March 10, 2005, the Transportation Equity Act: A Legacy for Users (TEA-LU, H.R. 3),
a bill with the same title and essentially the same policy provisions as H.R. 3550, passed in
the House. On March 17, 2005, the Senate Environment and Public Works Committee
passed its version of reauthorization legislation. The Senate bill, the Safe Accountable,
Flexible, and Efficient Transportation Equity Act of 2005 (SAFETEA, as yet unnumbered),
includes the same policy provisions as S. 1072.
During the reauthorization process, environmental issues have garnered significant
attention from both Members of Congress and interested stakeholders (e.g., state
transportation agencies, transportation construction organizations, and environmental
groups). This attention is due to both the impact that surface transportation projects can have
1 Surface transportation programs include federal highway, highway safety, and transit programs
undertaken by the U.S. Department of Transportation’s (DOT’s) Federal Highway Administration
(FHWA) and Federal Transit Administration (FTA).
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on the environment and the impact that compliance with environmental requirements can
have on project delivery. As a result of this concern, legislation proposed in both the House
and Senate has included a variety of environmental provisions.
Generally, those provisions propose to do one of the following: authorize funding to
eliminate, control, mitigate, or minimize regulated environmental impacts associated with
a surface transportation programs or projects; or specify procedures required to be
undertaken to comply with certain environmental requirements, often with the intention of
simplifying or expediting them. In particular, both the House and Senate have proposed
changes to the procedures DOT would be required to follow to comply with certain
provisions of the Clean Air Act and the National Environmental Policy Act (NEPA). (For
information on these issues, see CRS Report RL32454, Environmental Provisions in Surface
Transportation Reauthorization Legislation Proposed During the 108th Congress, by Linda
Luther; CRS Report RL32106, Transportation Conformity Under the Clean Air Act: In Need
of Reform? by James McCarthy; and CRS Report RL32032, Streamlining Environmental
Reviews of Highway and Transit Projects: Analysis of Legislative Proposals in the 108th
Congress, by Linda Luther.)
Chemical Security and Regulatory Issues
(By Linda Schierow, Environmental Policy Analyst, 7-7279)
The 109th Congress may again consider whether there is a need for federal oversight
of security arrangements against terrorism for privately owned facilities storing or handling
large quantities of potentially dangerous chemicals. At issue are the role of the federal
government in protecting such facilities from terrorist acts, and how facilities should address
concerns about terrorism. In the 108th Congress, the Senate Committee on Environment and
Public Works reported a bill that would have required submission to the Department of
Homeland Security (DHS) of vulnerability assessments and security and emergency response
plans for facilities designated by the DHS Secretary. A competing proposal, in addition to
vulnerability assessments and risk reduction plans, would have required risk reduction,
including use of “inherently safer” technologies, if practicable. Both bills were revised and
offered as amendments to S. 2845, which became P.L. 108-458, the Intelligence Reform and
Terrorism Prevention Act. The amendments were ruled non-germane prior to final passage
of S. 2845.
Whether similar proposals will be introduced into the 109th Congress is unclear, in part
because committee jurisdiction over this issue may change in either the House or the Senate.
The recently renamed Committee on Homeland Security and Governmental Affairs is likely
to claim primary jurisdiction in the Senate. Jurisdiction over chemical plant security may
continue for the House Committee on Energy and Commerce, which held hearings during
the 108th Congress, or may be transferred in whole or in part to the now permanent
Committee on Homeland Security. (For more information, see CRS Report RL31530,
Chemical Plant Security.)

The 109th Congress also may consider amendments to the Toxic Substances Control Act
(TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) so as to allow
implementation of the Stockholm Convention on Persistent Organic Pollutants (POPs). The
Stockholm Convention bans or severely restricts production, trade, and use of 12 persistent
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organic pollutants, including DDT, PCBs, and other chemicals that generally are no longer
in U.S. commerce. Although the President signed the treaty, implementing legislation is
necessary prior to U.S. ratification.
Discussion in the 108th Congress centered on EPA authority for rulemaking concerning
POPs (especially POPs which might be listed in future amendments to the treaty), and the
extent to which this authority should differ from EPA’s existing authority for regulating toxic
chemicals and pesticides. The Senate Committee on Environment and Public Works
reported a bill, S. 1486, which proposed amendments to TSCA. A competing proposal was
considered but not acted upon by the House Subcommittee on Environment and Hazardous
Materials of the Committee on Energy and Commerce. Neither the House nor the Senate
Agriculture Committee has yet held a hearing to consider amendments to FIFRA. (For more
information, see CRS Report RL32150, International Agreements on Persistent Organic
Pollutants (POPS): Background and Issues for Congress.)
Defense Environmental Cleanup and Other Issues
(By David Bearden, Environmental Policy Analyst, 7-2390)
The Department of Defense (DOD) administers five programs to address the cleanup
of hazardous waste and other environmental needs on over 30 million acres of land located
on active military installations and former military properties. In addition to these activities,
the Department of Energy (DOE), as part of its overall responsibility for U.S. nuclear
weapons programs, is responsible for cleaning up contamination at former nuclear weapons
sites. The second session of the 108th Congress completed action on defense authorization
legislation and appropriations for FY2005, including funding for the above activities.
Prominent environmental issues included the adequacy, pace, and cost of cleanup on military
lands and former nuclear weapons sites, and whether further environmental exemptions are
necessary to preserve military training capabilities.
In enacting appropriations for FY2005, Congress increased funding for cleanup of
active military installations above FY2004 levels, but reduced funding for cleanup of base
closure sites and other former military properties. As in past years, Congress granted DOD
the discretion to allocate funding for its other environmental activities (including compliance,
pollution prevention, conservation, and environmental technology) from its accounts for
Operation and Maintenance, Procurement, and Research and Development. None of the
defense authorization or appropriations bills for FY2005 included DOD’s requested
exemptions from certain clean air and hazardous waste cleanup requirements, which had
been controversial. Although DOD argued that the exemptions would have had minimal
environmental impacts, some Members of Congress, states, and environmental organizations
countered that the impacts would have been more extensive and could pose a threat to public
health. There was also concern over setting a precedent for additional efforts to obtain
blanket exemptions. (See CRS Report RL32537, Defense Cleanup and Environmental
Programs: Authorization and Appropriations for FY2005.)
Congress also increased funding in FY2005 for cleanup at former nuclear weapons sites.
The increase was mostly devoted to the on-site disposal of radioactive wastes stored in
underground tanks at the Savannah River site in South Carolina and at the Idaho National
Engineering and Environmental Laboratory. Congress approved targeted authority to
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permanently dispose of some of these wastes by sealing them in the tanks with a cement-like
“grout.” DOE and some Members of Congress argued that this disposal method would
safely immobilize the wastes, save costs, and speed the pace of cleanup. Other Members,
states, environmental organizations, and communities expressed concern that the waste might
not mix thoroughly with the grout and permit some of the waste to migrate from leaking
tanks into the soil and groundwater. (See CRS Report RS21988, Radioactive Tank Wastes:
Disposal Authority in the Ronald W. Reagan National Defense Authorization Act for
FY2005.)
Consideration of national defense authorization legislation and appropriations for
FY2006 will be on the agenda early in the first session of the 109th Congress, including
funding for the above environmental activities once again. The President’s FY2006 budget
request includes $1.75 billion for environmental cleanup on military lands, some $146
million more than the FY2005 appropriation of $1.60 billion. Although the request includes
an increase for cleanup at active military installations and base closure sites, funding would
decline for cleanup at other former military properties decommissioned before the first round
of base closings in 1988. In recent years, Congress has appropriated more funding than
requested for cleanup on these properties, in response to ongoing concern about the pace of
cleanup to address human health risks. Funding for DOD’s other environmental activities
would come out of several larger accounts, noted above. The amount that DOD has planned
to allocate for these activities in FY2006 will be specified in the department’s annual
Operation and Maintenance Overview, usually released in March.
The President’s FY2006 request also includes $6.02 billion for DOE’s cleanup of
former nuclear weapons sites, about a $1 billion decrease relative to the FY2005
appropriation of $7.03 billion (less an across-the-board rescission of 0.8%). Sites with
significant reductions in proposed funding include Hanford, Oak Ridge Reservation, Rocky
Flats, and Savannah River. Although overall funding would decline, an increase would be
provided for certain activities at various sites. The adequacy of funding for cleanup on
military lands and other defense-related environmental activities may be an issue in the
FY2006 appropriations debate, considering the many other needs that compete for limited
funding within the overall federal budget.
Alternative Fuels and Advanced Technology Vehicles
(By Brent Yacobucci, Environmental Policy Analyst, 7-9662)
The development of alternative fuels and advanced technology vehicles emerged as a
key issue in the 108th Congress and has continued on the agenda of the 109th 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 such vehicles is currently cost-
prohibitive, and many technical and cost barriers are associated with producing, storing, and
delivering these alternative fuels. Therefore, there is interest in Congress and the
Administration in legislatively supporting vehicle and fuel development, and promoting their
entry into the marketplace.
The 108th Congress considered comprehensive energy legislation, and similar legislation
is expected to be introduced early in the 109th Congress. In the 108th Congress, the
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conference report on H.R. 6 (H.Rept. 108-375) would have authorized increased funding for
hydrogen and fuel cell research, established tax credits for the purchase of hybrids and
alternative fuel vehicles, and promoted biofuels. However, the bill stalled in the 108th
Congress. A key component of the energy bill has already seen action in the 109th Congress.
The energy bill in the 108th Congress would have established a renewable fuels standard
(RFS), requiring the use of renewable fuels in gasoline. On March 16, 2005, the Senate
Committee on Environment and Public Works ordered reported S. 606, the Reliable Fuels
Act. This bill would require the use of 6 billion gallons of renewable fuel by 2012. Further,
the bill exempts blenders of renewable fuels from defective product liability. Similar
liability protection for MTBE (another gasoline additive) was included in the energy bill in
the 108th Congress, and was cited as one of the impediments to the bill’s passage.
The 109th Congress is also considering reauthorization of the highway authorization
bill, TEA-21 (see above discussion on “Surface Transportation and Environment”). On
March 10, 2005, the House passed H.R. 3, the Transportation Equity Act: A Legacy for
Users. Among other provisions, the bill would reauthorize funding for various projects,
including advanced technology and alternative fuel transit buses. Further, the bill would
allow states to exempt certain alternative fuel and high-efficiency vehicles from high
occupancy vehicle (HOV) restrictions.
On October 22, 2004, the President signed P.L. 108 -357 (H.R. 4520), the American
Jobs Creation Act of 2004. Among other provisions, the act eliminates the existing tax
exemption for ethanol-blended gasoline and replaces it with a refundable tax credit. The law
also establishes tax credits for the production and use of biodiesel fuel.
A key component of the Bush Administration’s environmental goals is focused on
research on hydrogen fuel and fuel cells — through the Hydrogen Fuel and FreedomCAR
initiatives. For FY2005, Congress appropriated a total of $264 million for these initiatives;
the Administration has requested a total of $283 million for FY2006. Funding is considered
in the Energy and Water Appropriations bill and the Interior and Related Agencies
Appropriations bill. (For further discussion, see CRS Issue Brief IB10128, Alternative Fuels
and Vehicles: Issues in Congress.)
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Table 1. Action on Environmental Legislation in the 109th Congress
Bill Status
Purpose
H.R. 3
Passed the House March 10, 2005 Among other provisions, would
Transportation Equity Act:
(H.Rept. 109-12).
amend the Clean Air Act
A Legacy for Users
conformity provisions, and
specify procedures to perform
environmental reviews under
NEPA for transportation projects.
Would amend the DOT Act of
1966 regarding protection of
historic sites, and specifies
funding levels for projects
intended to improve air quality
and mitigate other environmental
impacts
The Safe, Accountable, Flexible
Approved by Senate Environment Environmental provisions similar
and Efficient Transportation
and Public Works Committee on
to H.R. 3. In addtion to historic
Equity Act of 2005 (SAFETEA)
March 17, 2005.
sites, amendments to the DOT
(currently unnumbered)
Act of 1966 would apply to
publicly owned parks, recreation
areas, wildlife and waterfowl
refuges.
S. 131
Markup failed on a tie vote March A bill to amend the Clean Air Act
Clear Skies Act
9, 2005.
to reduce air pollution through
expansion of cap and trade
programs, to provide an
alternative regulatory
classification for units subject to
the cap and trade program.
S. 606
Ordered reported by Senate
Requires the use of 6 billion
Reliable Fuels Act
Committee on Environment and
gallons of renewable fuel by
Public Works on March 16, 2005. 2012. Bans the use of MTBE
nationwide by 2009. Eliminates
reformulated gasoline oxygen
requirements.
H.R. 280
Reported from House Financial
Makes HUD brownfields grants
Brownfields Redevelopment
Services Committee on March 16, more accessible to smaller
Enhancement Act
2005.
communities. Establishes a pilot
program that includes brownfield
planning.
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