Order Code IB10146
CRS Issue Brief for Congress
Received through the CRS Web
Environmental Protection Issues
in the 109th Congress
Updated April 27, 2005
Coordinated by Susan R. 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
Energy and Environment: The Energy Bill
Clean Air Issues
Clean Water Act
Safe Drinking Water
Leaking Underground Storage Tanks
Superfund and Brownfields
Surface Transportation and Environment
Chemicals: 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
nature of the debate over whether clean air
a wide variety of issues, including clean air,
regulation would be made more effective or
water quality, chemical security, and environ-
weakened by the legislation, and whether it
mental aspects of other major issue areas such
should include carbon dioxide. On March 16,
as transportation and defense. This issue brief
2005, the same committee ordered reported S.
provides an overview of key environmental
606, the Reliable Fuels Act, which would
issues that are receiving or may receive atten-
amend the Clean Air Act to ban the gasoline
tion in the 109th Congress. The sections on
additive MTBE, and providing for a replace-
specific issues contain references to more
ment additive — ethanol.
detailed and extensive CRS reports on the
subjects covered.
In mid-March transportation bills that
contain environmental provisions were subject
(It should be noted that this issue brief
to congressional action. The House passed
treats mainly pollution-related matters; for
H.R. 3, the Transportation Equity Act: A
natural resource management issues, see CRS
Legacy for Users (TEA-LU); and the Senate
Report RL32699, Natural Resources: Selected
Environment and Public Works Committee
Issues for the 109th Congress.)
approved S. 732, the Safe, Accountable,
Flexible and Efficient Transportation Equity
A number of environmental measures
act (SAFETEA).
have been the subject of congressional actions.
On April 21, 2005, the House passed H.R. 6,
The House Financial Services Committee
the Energy Policy Act of 2005. An omnibus
ordered reported H.R. 280, a bill to make
energy package, the bill contains numerous
HUD brownfield grants more accessible.
environmentally related provisions. Perhaps
the most controversial include liability protec-
Appropriations for the Environmental
tion for the gasoline additive methyl tertiary
Protection Agency (EPA) affect many of the
butyl ether (MTBE), a renewable fuel stan-
programs and issues discussed in this issue
dard, streamlined environmental permitting,
brief; therefore, EPA’s annual funding is an
and opening the Arctic National Wildlife
issue of perennial interest, and related issues
Refuge (ANWR) to oil and gas explorations.
and action are the subject of the first section
below.
Early in the year the Senate Environment
and Public Works Committee held hearings
As bills receive committee or floor ac-
and scheduled markup of S. 131, the Clear
tion, they will appear in a table at the end of
Skies Act. However, the bill failed on a tie
this report, providing a brief description of
vote March 9, 2005, owing to the contentious
each bill and its current status
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On April 21, 2005, the House passed H.R. 6, the Energy Policy Act of 2005. An
omnibus energy package, the bills contains numerous environmentally related provisions.
Among these, key provisions include liability protection for producers of the gasoline
additive methyl tertiary butyl ether (MTBE), a requirement that motor fuel contain renewable
fuel, streamlined environmental permitting, and a postponed deadline for meeting certain air
quality standards.
On March 10, 2005, the House passed the Transportation Equity Act: A Legacy for
Users (TEA-LU, H.R. 3), reauthorizing surface transportation programs through FY2009.
The Senate Environment and Public Works Committee on March 17, 2005, approved its
version of reauthorization legislation: S. 732, the Safe Accountable, Flexible, and Efficient
Transportation Equity Act of 2005 (SAFETEA). Both bills include a variety of
environmental provisions, including proposed changes in the procedures DOT would be
required to follow to comply with the Clean Air Act and the National Environmental Policy
Act (NEPA).

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.
BACKGROUND AND ANALYSIS
The 109th Congress has before it a variety of disparate environmental measures. Many
of these reflect continuing consideration of issues that were before the 108th and prior
Congresses. These 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.
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 — consideration of proposals that would refocus 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
energy and transportation reauthorization legislation, and other 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.
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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 funded 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 (Congress had
appropriated $8.37 billion for FY2004).
Most of the reduction in FY2005 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 in FY2005, relative 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
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of funding for numerous other activities. (For more information, see CRS Report RL32441,
Environmental Protection Agency: Appropriations for FY2005.)
For FY2006 appropriations for EPA, the President submitted his 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,
without adjusting for inflation. (For more information, see CRS Report RS22064,
Environmental Protection Agency: Highlights of the President’s FY2006 Request, and CRS
Report RL32441, Environmental Protection Agency: Appropriations for FY2006.)
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). 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.
Energy and Environment: The Energy Bill
(By Brent Yacobucci, Specialist in Environmental Policy, 7-9662)
In response to high energy prices, increasing energy imports, and concerns over
environmental quality, the 109th Congress is currently considering omnibus energy
legislation. The debate over a national energy policy has been ongoing since the 107th
Congress. Both the 107th and 108th Congresses were unable to complete action on an
omnibus energy bill due to the broad scope of the bills and several contentious issues that
eluded agreement. Many of these issues are again before Congress in the current energy
legislation (see discussion below).
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The House version of an omnibus energy bill (H.R. 6) passed the House April 21, 2005.
At that time, a comprehensive energy bill had not been introduced in the Senate. H.R. 6
contains various provisions involving environmental protection and regulation. Topics
include the treatment of MTBE and renewable fuels, stricter regulation of underground
storage tanks, environmental exemptions for oil and gas exploration and production, ozone
compliance deadlines, and streamlining of environmental regulations.
H.R. 6 would ban the use of MTBE (a fuel additive in gasoline found to contaminate
drinking water supplies, primarily due to leaking underground storage tanks), except in states
that specifically allow its use. It would also provide a “safe harbor” from defective liability
lawsuits for MTBE and renewable fuels. This safe harbor for MTBE was seen as a key
impediment to the passage of an energy bill in the 108th Congress. Proponents of the safe
harbor contend that oxygen standards for reformulated gasoline in the Clean Air Act
Amendments of 1990 virtually mandated the use of MTBE, while critics contend that there
were options other than MTBE, and that gasoline producers were aware of the potential for
groundwater contamination. Further, some stakeholders are concerned that the fuels
provisions of the bill would actually raise gasoline prices. An analysis by the Energy
Information Administration on a similar bill in the 108th Congress showed that the fuels
provisions could raise conventional gasoline prices by as much as 3 cents per gallon. (For
more information on MTBE, see the sections of this issue brief on “Clean Air Issues” and
“Leaking Underground Storage Tanks.”)
The bill would also streamline the process for environmental permitting for a variety
of energy projects. Further, it would postpone deadlines for compliance with ozone pollution
standards in certain areas. H.R. 6 would also provide Clean Water Act and Safe Drinking
Water Act exemptions for oil and gas exploration and production (related to stormwater
runoff and hydraulic fracturing). The above provisions are seen by some as necessary to
promote increased domestic energy supplies, while critics argue that they would allow energy
producers to sidestep environmental laws. (For further discussion, see CRS Report
RL32873, Selected Environmental Issues Related to the Omnibus Energy Bill (H.R. 6), 109th
Congress.)
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 environmental 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
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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 have been challenged in court by 10 states. 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. (For more detailed discussion, see CRS Report RL32868, Mercury Emissions
from Electric Power Plants: An Analysis of EPA’s Cap-and-Trade Regulations).

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
109th Congress: 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. Whether carbon dioxide, the major greenhouse gas associated with
climate change, would be regulated, is a key issue. 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. H.R. 6, the energy bill
passed by the House April 21, would ban MTBE nationwide, with several potential
exceptions, and would grant MTBE producers a “safe harbor” from product liability lawsuits.
S. 606, approved by the Senate Environment and Public Works Committee, would ban
MTBE sooner and would not provide MTBE producers a safe harbor. The bills also differ
on how much stimulus to provide for the potential MTBE replacement, ethanol: both would
require the use of increasing amounts of ethanol (or other renewable fuels) in motor fuels by
2012, but the Senate bill would require more.
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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 demonstrate conformity 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
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
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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 projects needed to
comply with federal drinking water standards (such as the revised arsenic standard); and
contamination problems caused by specific contaminants, such as methyl tertiary butyl ether
(MTBE) and perchlorate (the key ingredient in solid rocket 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. (See CRS Report RS21831, Lead in Drinking Water:
Washington, D.C., Issues and Broader Regulatory Implications.)
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.)

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
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 the DWSRF program for FY2006. However, a
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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. S. 689 has been
introduced to establish a grant program to help small communities comply with drinking
water standards and to delay enforcement of the arsenic standard until the program is
implemented. H.R. 1315 and S. 41 would direct states to grant temporary exemptions to
eligible small water systems from regulations for certain naturally occurring contaminants
(e.g., arsenic and radium). In the past two Congresses, broad water infrastructure financing
bills have been reported; however, given the worsening budget environment and competing
priorities, it is uncertain whether similar legislation, or a new approach, will be considered
in the 109th Congress. (For more information on this and other SDWA issues, see 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
Solid Waste Disposal 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. The fund balance currently exceeds $2 billion. On March 31, 2005, the
President signed H.R. 1270 (P.L. 106-9), extending through September 2005 the 0.1 cent-
per-gallon motor fuels tax that supports the LUST Trust Fund.
Much progress has been made in the tank program, but nearly 130,000 leaking tank sites
still require remediation. A key 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.
On April 21, the House passed H.R. 6, which would add new leak prevention provisions
to the UST regulatory program and authorize funding for the remediation of petroleum tank
leaks that involve MTBE. (These UST provisions are nearly identical to those contained in
the conference report for H.R. 6 in the 108th Congress.) Among its provisions, the new H.R.
6 would add tank inspection and operator training requirements, and would require EPA or
a state, when determining the portion of cleanup costs to recover from a tank owner, to
consider the tank owner’s ability to pay for cleanup and still maintain business operations.
H.R. 6 would authorize the appropriation of $200 million from the LUST Trust Fund
annually, for five years, for cleaning up leaks involving MTBE or renewable fuels (e.g.,
ethanol), and would provide a retroactive shield from products liability lawsuits to MTBE
manufacturers. In March, the Senate Environment and Public Works Committee ordered
reported S. 606, the Reliable Fuels Act, which would authorize a one-time appropriation of
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$200 million from the LUST Trust Fund for responding to releases of MTBE and other fuel
ethers (but not ethanol). S. 606 includes a products liability safe harbor for renewable fuels.
Both bills would authorize EPA and states to use LUST funds to enforce UST leak
prevention regulations. (For more information, see CRS Report RS21676, The Safe-Harbor
Provision for MTBE. See also CRS Report RL32787, MTBE in Gasoline: Clean Air and
Drinking Water Issues, and CRS Report RS21201, Leaking Underground Storage Tanks:
Program Status and Issues.)
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; 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
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.
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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 ordered H.R. 280 reported on
March 16, 2005. The bill would make HUD brownfield grants more accessible to smaller
communities. Also, the transportation bill, H.R. 3 (H.Rept. 109-12, parts 1 and 2), which
passed the House on March 10, 2005, would establish a pilot program to support planning
activities (including brownfield redevelopment planning) related to highway and public
transportation projects. Three other brownfield bills have been introduced. H.R. 336 and
H.R. 1237 would authorize funds for five years for the Economic Development
Administration to make grants of up to 75% of the cost of brownfield development projects.
And H.R. 1680 would allow a limited tax credit to holders of qualified brownfields cleanup
bonds.
Superfund bills in the 109th Congress include H.R. 434, which would redirect $124
million per year for five years from EPA’s science and technology programs to the Superfund
program, would limit the program’s management and administrative expenditures, and would
suspend new listings of Superfund sites until all remedial actions have been completed at all
sites currently on the National Priorities List.
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, H.R. 3, the Transportation Equity Act: A Legacy for Users (TEA-LU),
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
approved S. 732, its version of reauthorization legislation. The Senate bill, the Safe
Accountable, Flexible, and Efficient Transportation Equity Act of 2005 (SAFETEA),
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
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
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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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 additional information on
these issues, see CRS Report RL32454, Environmental Provisions in Surface Transportation
Reauthorization Legislation Proposed During the 108th Congress; CRS Report RL32106,
Transportation Conformity Under the Clean Air Act: In Need of Reform? and CRS Report
RL32032, Streamlining Environmental Reviews of Highway and Transit Projects: Analysis
of Legislative Proposals in the 108th Congress).
Chemicals: Security and Regulatory Issues
(By Linda Schierow, Specialist in Environmental Policy, 7-7279)
The 109th Congress is considering 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. A third approach was
introduced in the House. H.R. 2901 was similar to the reported Senate bill, with a few
exceptions — for example, it would have required consultation between DHS and EPA and
designation of high-priority facilities. These provisions were reintroduced into the 109th
Congress in H.R. 1562. No bill has been introduced into the Senate to date, but the chair of
the recently renamed Committee on Homeland Security and Governmental Affairs has
announced that she intends to address the issue, and scheduled a hearing for April 27, 2005.
(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
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,
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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.
The 109th Congress has begun hearings on the President’s FY2006 budget for national
defense programs, including DOD and DOE’s defense-related environmental activities. The
President’s budget includes $1.75 billion for environmental cleanup on military lands, nearly
$150 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.
There are no line-item appropriations accounts for DOD’s other environmental
programs, including compliance, pollution prevention, conservation, and environmental
technology. Rather, Congress historically has granted DOD the discretion to determine the
allocation of funding for these activities primarily out of the accounts for Operation and
Maintenance, Procurement, and Research and Development. DOD’s proposed allocation of
funding for these environmental activities is specified in its annual Operation and
Maintenance (O&M) Overview, rather than in the President’s budget documents. Although
the FY2006 O&M Overview has not been released to date, Philip Grone, Deputy Under
Secretary of Defense for Installations and Environment, testified before the Subcommittee
on Readiness and Management Support of the Senate Armed Services Committee on April
6, 2005, that DOD proposes to allocate $2.12 billion to the above four environmental
programs in FY2006, $142 million less than the FY2005 amount of $2.26 billion.
Congress authorizes many federal programs on a multi-year basis, but authorizes
national defense programs annually, in addition to appropriating funding for them. DOD
submitted its FY2006 authorization proposal to Congress on April 7, 2005. It includes
authorization for the accounts that would fund the above amounts requested for cleanup, and
for those accounts from which DOD would allocate funding for its other environmental
activities. The proposal also includes several environmentally related legislative provisions,
including exemptions from certain clean air and hazardous waste cleanup requirements.
DOD has requested these exemptions each year since FY2003, arguing that they are needed
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to preserve military readiness capabilities and that they would have minimal environmental
impacts. Some Members of Congress, states, and environmental organizations have
countered that the impacts would be more extensive and could pose a threat to public health.
There also has been 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, for a discussion of past debate.)
The President’s FY2006 budget 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%). However, much of this reduction
is due to DOE’s proposal to transfer the administration of several cleanup sites to the
National Nuclear Security Administration within the department, which is funded out of
different accounts. 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.

Among the prominent issues at defense nuclear weapons sites has been how to safely
dispose of high-level radioactive wastes stored in underground tanks. Congress approved
targeted authority to permanently dispose of some of these wastes at the Idaho National
Laboratory and the Savannah River site by sealing them in the tanks with a cement-like
“grout.” (See CRS Report RS21988, Radioactive Tank Wastes: Disposal Authority in the
Ronald W. Reagan National Defense Authorization Act for FY2005.) DOE reports that the
President’s budget would fund the closing of one high-level waste tank at the Idaho National
Laboratory in FY2006, but the amount of waste that would be grouted in place is uncertain
at this time and is subject to state regulatory approval. The FY2006 request also includes
funding for the construction of waste treatment facilities at the Idaho National Laboratory
and the Savannah River site that would be necessary for DOE to process the waste removed
from the tanks prior to grouting any residual waste in place.
Alternative Fuels and Advanced Technology Vehicles
(By Brent Yacobucci, Specialist in Environmental Policy, 7-9662)
The development of alternative fuels and advanced technology vehicles has emerged
as a key issue in Congress. Advanced technology vehicles, such as 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 109th Congress is considering comprehensive energy legislation, similar to
unfinished legislation in the 108th Congress. As passed by the House April 21, 2005, H.R.
6 would authorize increased funding for hydrogen and fuel cell research, establish tax credits
for the purchase of lean-burn vehicles, and promote biofuels. A key component of the bill,
a renewable fuels standard (RFS), would require the use of 5 billion gallons of renewable
fuel in gasoline by 2012. Further, the bill grants blenders of renewable fuels and MTBE
(another gasoline additive) a “safe harbor” from defective product liability. Similar liability
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protection for MTBE was included in the energy bill in the 108th Congress, and was cited as
one of the impediments to the bill’s passage. 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, and would also grant
safe harbor protection to renewable fuels, but not MTBE.
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 conformity
A Legacy for Users
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
H.R. 6
Passed the House
An omnibus energy bill. Various
Energy Policy Act of 2005
April 21, 2005
environmental provisions include
expediting permitting, amendments
to the Clean Air Act fuels
requirements, funding for MTBE
cleanup, and liability protection for
renewable fuels producers.
H.R. 280
Ordered reported from House
Makes HUD brownfields grants
Brownfields Redevelopment
Financial Services Committee on
more accessible to smaller
Enhancement Act
March 16, 2005.
communities. Establishes a pilot
program that includes brownfield
planning.
S. 131
Markup failed on a tie vote March A bill to amend the Clean Air Act to
Clear Skies Act
9, 2005.
reduce air pollution from electric
utilities through expansion of cap
and trade programs, and to alter or
delete current provisions of the
Clean Air Act applicable to electric
utilities.
S. 606
Ordered reported by Senate
Requires the use of 6 billion gallons
Reliable Fuels Act
Committee on Environment and
of renewable fuel by 2012. Bans
Public Works on March 16, 2005. the use of MTBE
nationwide four years after
enactment. Eliminates reformulated
gasoline oxygen requirements.
S. 732
Approved by Senate Environment Environmental provisions similar to
The Safe, Accountable, Flexible and Public Works Committee on
H.R. 3. In addition to historic sites,
and Efficient Transportation
March 17, 2005.
amendments to the DOT Act of
Equity Act of 2005 (SAFETEA) (S.Rept. 109-53)
1966 would apply to publicly owned
parks, recreation areas, wildlife and
waterfowl refuges.
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