Order Code IB10146
CRS Issue Brief for Congress
Received through the CRS Web
Environmental Protection Issues
in the 109th Congress
Updated July 20, 2005
Coordinated by Susan R. Fletcher and Margaret Isler
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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
(TEA-LU). On May 17, 2005, the Senate
a wide variety of issues, including clean air,
passed its version of H.R. 3 (previously S.
water quality, chemical security, and environ-
732), the Safe, Accountable, Flexible and
mental aspects of other major issue areas such
Efficient Transportation Equity Act
as energy, transportation and defense. This
(SAFETEA). Conferees were appointed by
issue brief provides an overview of key envi-
the Senate on May 26, 2005.
ronmental issues that are receiving or may
receive attention in the 109th Congress.
Appropriations for the Environmental
Protection Agency (EPA) affect many of the
A number of environmental measures
programs and issues discussed in this issue
have been the subject of congressional activ-
brief; therefore, EPA’s annual funding is an
ity. On April 21, 2005, the House passed H.R.
issue of perennial interest. On May 19, 2005,
6, the Energy Policy Act of 2005, and the
the House passed the Interior, Environment,
Senate passed its version of H.R. 6 June 28,
and Related Agencies Appropriations bill.
2005. An omnibus energy package, the two
H.R. 2361 (H.Rept. 109-80) includes $7.71
versions of the bill contain numerous environ-
billion for EPA, $187.4 million (2%) more
mentally related provisions. Perhaps the most
than the President’s FY2006 request of $7.52,
controversial include liability protection for
and $318.5 million (4%) less than the $8.03
the gasoline additive methyl tertiary butyl
billion (including a 0.8% rescission) appropri-
ether (MTBE), a renewable fuel standard,
ated for FY2005. Related issues and action
streamlined environmental permitting, and
are the subject of the first section below.
opening the Arctic National Wildlife Refuge
(ANWR) to oil and gas explorations. The
FY2006 defense authorization (H.R.
Senate bill includes some of these provisions,
1815 and S. 1042) and appropriations (H.R.
but not others, as discussed in this report.
2528) have been the subject of congressional
action; however, bills acted on thus far do not
Early in the year the Senate Environment
contain the environmental exemptions DOD
and Public Works Committee held hearings
requested.
and scheduled markup of S. 131, the Clear
Skies Act. However, the bill failed on a tie
As bills receive committee or floor ac-
vote March 9, 2005, owing to the contentious
tion, they will appear in a table at the end of
nature of the debate over whether clean air
this report, providing a brief description of
regulation would be made more effective or
each bill and its current status. The sections on
weakened by the legislation, and whether it
specific issues contain references to more
should include the greenhouse gas carbon
detailed CRS reports.
dioxide.
[It should be noted that this issue brief
Both the House and the Senate have
treats mainly pollution-related matters; for
passed transportation reauthorization bills that
natural resource management issues, see CRS
contain environmental provisions. On March
Report RL32699, Natural Resources: Selected
10, 2005, the House passed H.R. 3, the Trans-
Issues for the 109th Congress.]
portation Equity Act: A Legacy for Users
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On June 28, 2005, the Senate passed H.R. 6, the Energy Policy Act of 2005 (the House
passed its version on April 21). An omnibus energy package, the two versions of the bill
contain 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. The Senate bill would
also mandate the use of renewable fuels, but does not include some of the other key
environmentally related provisions of the House bill.
Congress has also taken action on a number of defense/environment issues. On May
26, 2005, the House passed the Military Quality of Life and Veterans Affairs Appropriations
Act for FY2006 (H.R. 2528), which would appropriate nearly $1.75 billion for
environmental cleanup at active, closed, and other former Department of Defense (DOD)
installations. On May 25, 2005, the House passed the National Defense Authorization Act
for FY2006 (H.R. 1815), which would authorize the same amount as in H.R. 2528 for
cleanup at DOD sites, and another $6.31 billion for the cleanup of former nuclear weapons
sites by the Department of Energy (DOE). On May 24, 2005, the House passed the Energy
and Water Development Appropriations Act for FY2006 (H.R. 2419), which would
appropriate $6.47 billion for environmental cleanup at former nuclear weapons sites, more
than the authorized amount in H.R. 1815. None of the major defense authorization and
appropriations bills contains the environmental exemptions from certain air quality and
hazardous waste cleanup requirements for military readiness activities that DOD had
requested.
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
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appropriations; and (4) terrorism and infrastructure protection in areas such as water
infrastructure and chemical facilities.
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 contentious nature of the debate over whether clean air regulation would be improved 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, but the bill failed on a tie vote
in committee, which prevented it from being reported to the floor. Debate on a number of
environmental issues was central to the passage of House and Senate versions of the omnibus
energy legislation, H.R. 6, and several of these issues remain to be resolved, as discussed
below in the section on energy and environment.
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)
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 and Senate Appropriations Committees
reorganized their subcommittees, including placing EPA’s appropriation under the Interior
subcommittee after eliminating the VA-HUD and Independent Agencies subcommittee.
On May 19, 2005, the House passed the Interior, Environment, and Related Agencies
Appropriations bill, H.R. 2361 (H.Rept.109-80), which would provide $26.11 billion for
FY2006, including $7.71 billion for EPA. The Senate passed its version of H.R. 2361
(S.Rept.109-80) on June 29, 2005, which would provide $26.26 billion overall and $7.88
billion for EPA. The President’s FY2006 budget request, submitted to Congress in February
7, 2005, included $7.52 billion for EPA, and Congress appropriated $8.03 billion (including
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a 0.8% rescission) for FY2005.1 An additional $100.0 million in the House-passed bill, and
$58.0 million in the Senate-passed bill, would be made available within the State and Tribal
Assistance Grants (STAG) account for FY2006 by “rescinding” expired grant and contract
unobligated funds previously appropriated to EPA. Among individual programs, both the
House- and Senate-passed versions of H.R. 2361 reflect decreases and increases throughout
the various EPA appropriations accounts when compared to the President’s FY2006 request
and the FY2005 funding levels. (For more information, see CRS Report RS22064,
Environmental Protection Agency: Highlights of FY2006 Appropriations, and CRS Report
RL32856, Environmental Protection Agency: Appropriations for FY2006.)
Considerable debate has focused on funding for the State and Tribal Assistance Grants
(STAG) account. A large portion of the funding provided within the STAG account is for
grants to support state revolving funds (SRFs) for loans to communities for constructing and
upgrading water infrastructure to meet federal requirements. The Administration’s request
to significantly reduce funding for the clean water SRF from $1.09 billion in FY2005 to $730
million in FY2006 has been contentious. Including the use of rescinded funds noted above,
the House-passed bill would provide $850 million for the clean water SRF. Amendments
during the House floor debate to bring the funding nearer to the FY2005 level were not
adopted. The Senate-passed bill would provide a higher amount of $1.10 billion, primarily
by reducing funding for other activities.
Other prominent issues of debate include the funding for cleanup of hazardous waste
sites under the Superfund program, the cleanup and redevelopment of certain commercial
and industrial sites referred to as Brownfields, EPA’s homeland security activities, and
“congressional priorities” (or earmarks). In addition to the adequacy of funding, another key
issue regarding the Superfund program has been whether to continue using general Treasury
revenues to fund the account, or to reinstate a tax on industry that expired and had originally
paid for most of the program.
Energy and Environment: The Energy Bill
(By Brent Yacobucci, Specialist in Environmental Policy, 7-9662)
In response to continuing concerns over U.S. energy policy, the 109th Congress is once
again 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.
The omnibus energy bill (H.R. 6) passed the House April 21, 2005; the Senate passed
its somewhat different version of the bill June 28, 2005. The House and Senate versions of
H.R. 6 contain many provisions involving environmental protection and regulation. Topics
1 The Consolidated Appropriations Act for FY2005 (P.L. 108-447) provided $8.09 billion for EPA,
less an across-the-board rescission of 0.8%. The rescinded amount and a $3 million supplemental
(P.L. 108-324) yielded an appropriation of $8.03 billion enacted for FY2005. For more information
on EPA’s FY2005 appropriations, see CRS Report RL32441, Environmental Protection Agency:
Appropriations for FY2005
.
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in the House version 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. The
Senate version contains some of these provisions, but not others.
As passed by the House, 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. The Senate bill would also
ban MTBE and would provide a safe harbor for renewable fuels, but not for MTBE. The
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 provision 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 House-passed 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. The House version 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. The Senate bill does
not contain these provisions.
The Senate also debated climate change as part of the discussion over H.R. 6. The
Senate adopted two floor amendments on climate change. S.Amdt. 817 would establish
programs to promote the adoption of technologies to reduce greenhouse gas intensity (the
rate of emissions compared to economic output). S.Amdt. 866 expresses the sense of the
Senate that Congress should establish mandatory, market-based limits on greenhouse gas
emissions. S.Amdt. 826 would have required mandatory emission reductions; this
amendment was rejected 38-60. The House version of H.R. 6 does not address climate
change or greenhouse gas emissions. (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 and
earlier Congresses. Specific issues include what to do about emissions of mercury and other
pollutants from coal-fired electric power plants; and regulation of the gasoline additive
MTBE, which is used in the Clean Air Act’s reformulated gasoline program.
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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
bill would weaken existing Clean Air Act requirements and delay emission reductions that
could be achieved under current law.
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 or
administratively by 14 states. In Congress, resolutions to disapprove the regulations
(S.J.Res. 20 and H.J.Res. 56) were introduced June 29. The Senate resolution can be brought
to the floor at any time. 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
, and CRS Report RL32927, Clean Air Interstate Rule: Review
and Analysis
).
The CAIR and mercury regulations mimic much of the Clear Skies’ cap-and-trade
approach, but EPA cannot modify existing, overlapping 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.
Like Clear Skies, other air issues that Congress faces are holdovers from previous
Congresses, including the regulation of fuel additives used in reformulated gasoline. One
particular additive, MTBE, has contaminated groundwater in numerous states, leading 25 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.
The Senate version of the bill, passed June 28, 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 60% (3 billion gallons) more.
For additional information, see CRS Issue Brief IB10137, Clean Air Act Issues in the
109th Congress.
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Clean Water Act
(By Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227)
The Clean Water Act (CWA) is the principal law that regulates pollution in the nation’s
lakes, rivers, and coastal waters. It also 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 CWA 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 differed 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. In the 109th Congress, the Senate
Environment and Public Works Committee approved S. 1400, a bill similar to S. 2550 in the
108th Congress, on July 20. The House Transportation and Infrastructure Committee has
approved two bills to reauthorize existing programs in the CWA. H.R. 624 extends Section
221 of the law, providing federal grants for sewer overflow projects, and H.R. 1359 extends
Section 220, authorizing a pilot program to develop alternative water supply projects.
Water infrastructure funding also has been an issue in the context of budget and
appropriations. In final action on FY2005 appropriations legislation (P.L. 108-447), the
House and Senate agreed to provide $1.09 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 requested $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
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improvement projects. Administration officials say that cuts for the SRF in FY2006 are
because Congress boosted funds above their requested level in FY2005. On May 19, the
House passed H.R. 2361, providing FY2006 appropriations for EPA. It includes $850
million for clean water SRF grants, but during debate on the bill the House rejected
amendments that would have increased funding for SRF grants. On June 29, the Senate
passed its version of H.R. 2361. It provides somewhat more EPA funding overall than the
House version, and it includes $1.1 billion for clean water SRF grants. (For additional
information, see CRS Issue Brief IB89102, Water Quality: Implementing the Clean Water
Act
.)
Safe Drinking Water
(By Mary Tiemann, Specialist in Environmental Policy, 7-5937)
The Safe Drinking Water Act (SDWA) is the principal federal statute 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.”) Another issue has been
whether to exempt from regulation the underground injection of fluids for purposes of
hydraulic fracturing related to oil and gas production. The House-passed energy bill, H.R.
6 (Section 327) and S. 837 would do so; S. 1080 would direct EPA to regulate this practice
as needed, and would prohibit the use of diesel fuel and other currently used pollutants in
hydraulic fracturing operations. (For further discussion, see CRS Report RL32873, Selected
Environmental Issues Related to the Omnibus Energy Bill (H.R. 6), 109th Congress
.)
As in recent years, legislation has been offered in the 109th Congress to address
perchlorate contamination of water supplies. H.R. 213 would require EPA to set a drinking
water standard for perchlorate by August 2007. EPA has not determined whether to develop
a standard for perchlorate, and uncertainties regarding perchlorate’s health effects and
occurrence, as well as concern about treatment technologies and potential cleanup costs, have
slowed EPA’s efforts to make such a determination. In January 2005, the National Research
Council (NRC) issued a comprehensive review of the health effects of perchlorate ingestion
and made several recommendations to EPA regarding its draft perchlorate risk assessment.
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. (For more
information, see CRS Report RS21961, Perchlorate Contamination of Drinking Water:
Regulatory Issues and Legislative Actions.
)
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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 House
and Senate, in H.R. 2316, both would provide $850 million for the program for FY2006, as
requested. However, a funding gap is expected to grow, as systems act to meet new
standards and repair aging infrastructure. EPA’s latest drinking water needs survey indicates
that water systems require a capital investment of $277 billion over the next 20 years for
drinking water infrastructure. The Senate Environment and Public Works Committee has
ordered reported S. 1400, the Water Infrastructure Financing Act, which would reauthorize
and increase funding authority for the DWSRF.
H.R. 2417 and S. 689 have 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 states implement this program. 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). Broad water infrastructure
financing bills were reported in the past two Congresses; however, it is uncertain whether
similar legislation, or a new approach, will be considered in the 109th Congress. (For a
discussion of various 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.
Significant 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, usually at low levels. (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.
In April, the House passed H.R. 6, the omnibus energy bill, 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
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identical to those contained in the conference report for H.R. 6 in the 108th Congress.)
Among its provisions, the House-passed version of 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 another $200 million
annually for five years for EPA and states to administer the regular leaking petroleum tank
cleanup program. The House bill also would provide a retroactive shield from products
liability lawsuits to MTBE manufacturers. The Senate’s version of H.R. 6 would authorize
a one-time appropriation of $200 million from the LUST Trust Fund for responding to
releases of MTBE and other fuel ethers (but not ethanol). The Senate bill includes a products
liability safe harbor for renewable fuels, but not for MTBE. Both bills would allow EPA and
states to use LUST funds to enforce UST regulations and would authorize LUST Trust Fund
appropriations for this purpose. (For more information, see CRS Report RL32865,
Renewable Fuels and MTBE: A Comparison of Selected Legislative Initiatives. 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 the 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, and after transfers, $1.200 billion and $1.199 billion, 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 $1.235 billion, the House approved $1.214 billion, and the Senate approved
$1.212 billion (H.R. 2361). 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.
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 a 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; H.R. 2211, introduced on May 10, 2005, would provide the additional
liability protection.
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Appropriations for EPA’s brownfields program were $169.9 million in FY2004, and
$163.7 million in FY2005 (after rescissions both years). The administration’s FY2006
budget request is $210.1 million, the House approved $172.1 million, and the Senate
approved $165.0 million.
In the 109th Congress, the Financial Services Committee reported H.R. 280 on June 16,
2005 (H.Rept. 109-138). 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 is in conference, includes a pilot program to support planning activities (including
brownfield redevelopment planning) related to highway and public transportation projects.
Six 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. S. 398 and H.R. 877 would expand and
make permanent the brownfields tax incentive, as well as eliminate the recapture provision;
H.R. 2683 would extend the incentive through 2009. 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)
Both the House and Senate have passed legislation to reauthorize surface transportation
programs for FY2004-FY2009.2 The House passed H.R. 3, the Transportation Equity Act:
A Legacy for Users (TEA-LU). The Senate inserted language from S. 732, the Safe
Accountable, Flexible, and Efficient Transportation Equity Act of 2005 (SAFETEA), into
its version of H.R. 3, and it was passed on May 17, 2005. During the 108th Congress, the
House and Senate passed legislation (H.R. 3550 and S. 1072) with policy provisions that are
essentially identical to their respective bills passed in this session. However, conferees were
unable to reach agreement on a final bill before the 108th Congress adjourned.
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
2 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 RL32032, Streamlining Environmental Reviews of Highway
and Transit Projects: Analysis of TEA-LU (H.R. 3) and SAFETEA (S. 732)
, CRS Report
RL32454, Environmental Provisions in Surface Transportation Reauthorization Legislation:
TEA-LU (H.R. 3) and SAFETEA (S. 732)
; and CRS Report RL32106, Transportation
Conformity Under the Clean Air Act: In Need of Reform?
)
Authorization legislation for FY1998-FY2003, the Transportation Equity Act for the
21st Century (TEA-21, P.L. 105-178), expired on September 30, 2003. In accordance with
a series of extension bills, all existing surface transportation programs continue to operate
according to provisions of TEA-21 while Congress considers reauthorization proposals. The
most recent extension, the Surface Transportation Extension Act of 2005, Part II (H.R.
3104), extends funding until July 19, 2005.
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 109th Congress, two House bills would require designated
facilities to prepare vulnerability assessments and plans for increasing facility safety and/or
security and responding in the event of an emergency. H.R. 1562 would require submission
of assessments and plans to the Department of Homeland Security (DHS), while H.R. 2237
would require submission to EPA. H.R. 2237 also would require consideration and use of
“inherently safer” technologies, if practicable. No bill has been introduced into the Senate
to date, but the Committee on Homeland Security and Governmental Affairs has held two
hearings. (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 POPs,
including DDT, PCBs, and other chemicals that generally are no longer in U.S. commerce.
Although the President has 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, that 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.
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(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. Action is underway in the 109th Congress on legislation to authorize and appropriate
funding for national defense programs for FY2006, including DOD and DOE’s defense-
related environmental activities.
As in recent years, the difference in funding between the House and Senate for cleanup
of DOD sites is for former military installations decomissioned prior to the first round of
base closings in 1988. As passed by the House, H.R. 1815 would authorize the
Administration’s request of $1.37 billion for cleanup at active and former military
installations, and H.R. 2528, as passed by the House, would appropriate the same amount.
As reported, S. 1042 would authorize an additional $40 million for cleanup of former
installations.
Both H.R. 1815 and S. 1042 would authorize the Administration’s request of $378
million for cleanup of bases closed since 1988, and H.R. 2528 would appropriate the same
amount. DOD has recommended closing additional bases in 2005. A prominent issue has
been whether potential cost or technical limitations to cleaning up these properties for
civilian reuse could constrain economic redevelopment. (See CRS Report RS22065,
Military Base Closures: Role and Costs of Environmental Cleanup.)
Another issue has been whether further environmental exemptions than are provided
in current law are necessary to preserve military training capabilities. The 107th and 108th
Congresses enacted the exemptions that DOD requested from certain wildlife protection
requirements. However, Congress has not enacted exemptions from specific air quality and
hazardous waste cleanup requirements that have been controversial, based on concerns about
human health risks. Thus far, none of the FY2006 defense authorization or appropriations
bills include these exemptions. (See CRS Report RS22149, Exemptions from Environmental
Law for the Department of Defense: An Overview of Congressional Actio
n.)
For FY2006, the primary issue regarding DOE’s cleanup of former nuclear weapons
sites has been the adequacy of funding to address human health and environmental risks in
a timely manner. There are differences in the House and Senate between authorized and
appropriated amounts, which are significantly higher than the Administration’s request of
$6.02 billion, but are less than the FY2005 appropriation of $6.81 billion. As passed by the
House, H.R. 2419 would appropriate $6.47 billion, more than the authorization of $6.31
billion that the House passed in H.R. 1815. As passed by the Senate, H.R. 2419 would
appropriate $6.37 billion, more than the authorization of $6.19 billion approved by the
Senate Armed Services Committee in reporting S. 1042. (See the “Environmental
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Management” section in CRS Report RL32852, Energy and Water Development: FY2006
Appropriations
.)
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.
As noted above, 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 House version of H.R. 6, 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 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. The Senate
passed its version of H.R. 6 on June 28, 2005. The Senate bill would establish an RFS of 8
billion gallons by 2012, and would grant a safe harbor 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 its version of H.R. 3, the Transportation Equity Act: A
Legacy for Users. Among other provisions, the House bill would reauthorize funding for
various projects, including advanced technology and alternative fuel transit buses. Further,
the House bill would allow states to exempt certain alternative fuel and high-efficiency
vehicles from high occupancy vehicle (HOV) restrictions. The Senate version of H.R. 3,
which passed May 17, 2005, would also provide funding for bus projects and grant states the
authority to exempt certain vehicles from HOV restrictions. In addition, the Senate version
establish a 50-cent-per-gallon tax credit for the sale of alternative fuels.
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 for these is
considered in the Energy and Water Appropriations bill and the Interior and Related
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Agencies Appropriations bill. (For further discussion, see CRS Issue Brief IB10128,
Alternative Fuels and Vehicles: Issues in Congress.)
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
Passed the Senate May 17, 2005
provisions, and specify procedures
to perform environmental reviews
under NEPA for transportation
[S. 732, the Safe, Accountable,
projects. Would amend the DOT
Flexible and Efficient
Act of 1966 regarding protection of
Transportation Equity Act of
historic sites, and specifies funding
2005 (SAFETEA)]
levels for projects intended to
improve air quality and mitigate
other environmental impacts
H.R. 6
Passed the HouseApril 21, 2005.
An omnibus energy bill. Various
Energy Policy Act of 2005
Passed the Senate June 28, 2005
environmental provisions include
with several differences from the
expediting permitting, amendments
House version.
to the Clean Air Act fuels
requirements, funding for MTBE
cleanup, and liability protection for
renewable fuels and MTBE
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.
H.R. 624
Approved by House
Amends the Clean Water Act to re-
To amend the Federal Water
Transportation and Infrastructure
authorize appropriations for sewer
Pollution Control Act to
Committee
overflow grants (sec. 221)
authorize appropriations for
May 18, 2005
sewer overflow control grants.
(H.Rept. 109-166)
H.R. 1359
Approved by House
Amends the Clean Water Act to re-
To amend the Federal Water
Transportation and Infrastructure
authorize pilot program for
Pollution Control Act to extend
Committee
alternative water source projects.
the pilot program for alternative May 18, 2005
water source projects.
(H.Rept. 109-167)
H.R. 1815
Passed the House May 25, 2005
Would authorize funding for
National Defense Authorization
(H.Rept. 109-89).
national defense programs,
Act for FY2006
including environmental cleanup at
active, closed, and other former
military installations, and former
defense nuclear weapons sites.
Does not include exemptions from
the Clean Air Act, Solid Waste
Disposal Act, and CERCLA that
DOD had requested.
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Bill Status
Purpose
H.R. 2361
Passed the Senate June 29, 2005
Would fund EPA at $7.88 billion
Interior, Environment and
(S.Rept. 109-80)
for FY2006.
Related Agencies
Appropriations Bill FY2006
Passed the House May 19, 2005
Would fund EPA at $7.71 billion
(H.Rept. 109-80
for FY2006.
H.R. 2419
Passed the House May 24, 2005
Would appropriate funding for
Energy and Water Development (H.Rept. 109-86).
environmental cleanup at former
Appropriations Act for FY2006
defense nuclear weapons sites.
Passed the Senate July 1, 2005
(S.Rept. 109-84)
H.R. 2528
Passed the House May 26, 2005
Would appropriate funding for
Military Quality of Life and
(H.Rept. 109-95).
national defense programs,
Veterans Affairs Appropriations
including environmental cleanup at
Act for FY2006
active, closed, and other former
military installations. Does not
include exemptions from the Clean
Air Act, Solid Waste Disposal Act,
and CERCLA that DOD had
requested.
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
Reported by Senate Committee
Requires the use of 6 billion gallons
Reliable Fuels Act
on Environment and Public
of renewable fuel by 2012. Bans
Works on May 26, 2005
the use of MTBE
(S.Rept. 109-74), then superseded nationwide four years after
by provisions incorporated into
enactment. Eliminates reformulated
H.R. 6.
gasoline oxygen requirements.
S. 732 (H.R. 3)
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 (S.Rept. 109-53). amendments to the DOT Act of
Equity Act of 2005 (SAFETEA) Passed as H.R. 3 May 17, 2005
1966 would apply to publicly owned
parks, recreation areas, wildlife and
waterfowl refuges.
S. 1042
Reported by the Senate Armed
Would authorize funding for
National Defense Authorization
Services Committee on May 17,
national defense programs,
Act for FY2006
2005 (S.Rept. 109-69).
including environmental cleanup at
active, closed, and other former
military installations, and former
defense nuclear weapons sites.
Does not include exemptions from
the Clean Air Act, Solid Waste
Disposal Act, and CERCLA that
DOD had requested.
S. 1400
Approved by Senate Environment Authorizes funds for clean water
Water Infrastructure Financing
and Public Works Committee
and drinking water state revolving
Act
July 20, 2005
fund programs.

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