Order Code IB10146
CRS Issue Brief for Congress
Received through the CRS Web
Environmental Protection Issues
in the 109th Congress
Updated January 31, 2006
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
EPA, subject to an across-the-board rescission
a wide variety of issues, including clean air,
of 0.476% and a 1% government-wide rescis-
water quality, chemical security, and environ-
sion. The final appropriation is more than the
mental aspects of other major issue areas such
request of $7.52 billion, but less than the
as energy, transportation, and defense. This
FY2005 appropriation of $8.03 billion.
issue brief provides an overview of key envi-
ronmental issues receiving attention in the
The first session completed action on
109th Congress. Most recently, the attention to
FY2006 defense authorization (P.L. 109-163,
Hurricanes Katrina and Rita involved a num-
H.R. 1815) and appropriations (P.L. 109-148,
ber of environmental concerns, and legislative
H.R. 2863; P.L. 109-114, H.R. 2528), includ-
proposals on matters such as emergency
ing funding for cleanup and other environ-
waivers of environmental requirements are
mental activities on military lands. As en-
before Congress.
acted, none of these bills included exemptions
from air quality and cleanup requirements that
A number of environmental measures
the Department of Defense (DOD) had re-
have been the subject of congressional activ-
quested.
ity, some of them as part of comprehensive
bills and laws on broader subjects such as
Early in 2005, the Senate Environment
energy and transportation. On August 8, 2005,
and Public Works Committee held hearings
President Bush signed P.L. 109-58 (H.R. 6),
and scheduled markup of S.131, the Clear
the Energy Policy Act of 2005, an omnibus
Skies Act. However, the bill failed on a tie
energy package that contains numerous envi-
vote on March 9, 2005, owing to the conten-
ronmentally related provisions. Perhaps the
tious nature of the debate over whether clean
most controversial include a renewable fuel
air regulation would be made more effective
standard and streamlined environmental per-
or weakened by the legislation and whether it
mitting.
should include the greenhouse gas carbon
dioxide.
On August 10, 2005, the President signed
the transportation reauthorization bill, P.L.
As bills receive floor action, they will be
109-59. This law, the Safe, Accountable,
listed at the end of this report in Table 1,
Flexible and Efficient Transportation Equity
which briefly describes each bill and its cur-
Act: A Legacy for Users (SAFETEA-LU),
rent status. The sections on specific issues
contains various environmental provisions.
contain references to more detailed CRS
reports.
Appropriations for the Environmental
Protection Agency (EPA) affect many of the
[Note: This issue brief treats mainly
programs and issues discussed in this issue
pollution-related matters; for natural resource
brief, and the adequacy of EPA’s funding has
management issues, see CRS Report
been of perennial interest in Congress. On
RL32699, Natural Resources: Selected Issues
August 2, 2005, the President signed the
for the 109th Congress, by Nicole Carter and
Interior, Environment, and Related Agencies
Carol Hardy Vincent.]
Appropriations Act for FY2006 (P.L. 109-54,
H.R. 2361). Title II provided $7.73 billion for
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MOST RECENT DEVELOPMENTS
On January 6, 2006, the President signed the National Defense Authorization Act for
FY2006 (P.L. 109-163, H.R. 1815), including authorization of funding for cleanup of active
and closed military installations and other former military lands. On December 30, 2005, the
President signed the Department of Defense Appropriations Act for FY2006 (P.L. 109-148,
H.R. 2863), including appropriation of funding for cleanup of active military installations
and certain former military properties. FY2006 appropriations for cleanup of closed bases
were enacted earlier in the first session. In addition to funding for defense, P.L. 109-148
included a 1% government-wide rescission that reduced the final FY2006 appropriation for
EPA and other federal agencies. It also reallocated $8 million in emergency funds to EPA
for responding to leaking underground tanks in Gulf Coast states affected by Hurricanes
Katrina and Rita, but it did not include a $166 million rescission for EPA’s clean water State
Revolving Fund (SRF) that the Administration had requested.
On August 8, 2005, President Bush signed P.L. 109-58 (H.R. 6), the Energy Policy Act
of 2005. An omnibus energy package, the bill contains numerous environmentally related
provisions. Among these, key provisions include a requirement that motor fuel contain
renewable fuel, streamlined environmental permitting, and stricter regulation of underground
storage tanks. On August 10, 2005, the President signed the transportation reauthorization
bill, P.L. 109-59. The Safe, Accountable, Flexible and Efficient Transportation Equity Act:
A Legacy for Users (SAFETEA-LU) contains a variety of environmental provisions,
discussed in this report.
BACKGROUND AND ANALYSIS
The first session of the 109th Congress saw enactment of several laws that include key
environmental provisions, and Congress currently has before it a variety of remaining
environmental measures. Many of the issues dealt with by this Congress 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.
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 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 alter 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
energy measures, or environmental issues in defense authorization or appropriations; and (4)
security concerns, such as terrorism and infrastructure protection in areas such as water
infrastructure and chemical facilities.
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The hurricanes that damaged large areas of the U.S. Gulf Coast in late August and
September have been a major focus of congressional attention, including a number of
environmental concerns. Wide-ranging oversight and legislative efforts are examining short-
term responses to the disasters, as well as options for policies and programs that may be
needed for longer-term clean-up and recovery. Among the many issues of interest are
environmental considerations related to the hurricane cleanup effort, involving a large
amount of contaminated — and uncontaminated — substances and debris; the possible need
for modification of environmental laws or rules to expedite disaster response and recovery;
and measures needed to speed delivery of assistance to restore public services, including
water infrastructure facilities. (For discussion and analysis of the environmental aspects of
hurricane-related issues and concerns, see CRS Report RS22248 and CRS Report RS22285
on water facilities and infrastructure; CRS Report RL33107 on emergency waivers of
environmental regulations; CRS Report RL33115 on cleanup issues; CRS Report RL33104
on the National Environmental Policy Act (NEPA) and hurricane response; and CRS Report
RL33117 on impacts on biological resources).
Major attention in the first session of the 109th Congress was focused on both energy
and transportation legislation, which passed in late August 2005. Environmental provisions
were key aspects of these laws, as discussed below. Early action occurred on S. 131, Clear
Skies legislation, which was originally scheduled for markup in February but rescheduled
several times due to the contentious nature of the debate over whether clean air regulation
would be improved or weakened by the bill. Markup occurred on March 9, 2005, but the bill
failed on a tie vote in committee, which prevented it from being reported to the floor.
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, parks, and other natural resources. (For information
on the latter, see CRS Report RL32699, Natural Resources: Selected Issues for the 109th
Congress, by Nicole Carter and Carol Hardy Vincent.) For an overview of major
environmental pollution control laws, see CRS Report RL30798, Environmental Laws:
Summaries of Statutes Administered by the Environmental Protection Agency, by Susan
Fletcher.
Environmental Protection Agency Appropriations
(By Robert Esworthy, Specialist in Environmental Policy, 7-7236)
Early in the first session, the 109th Congress eliminated the Veterans Affairs, Housing
and Urban Development (VA-HUD), and Independent Agencies appropriations
subcommittee and moved funding jurisdiction for the Environmental Protection Agency
(EPA) to the Interior subcommittee. As enacted in August 2005, Title II of the Interior,
Environment, and Related Agencies Appropriations Act for FY2006 (P.L. 109-54, H.R.
2361) provided $7.73 billion for EPA, subject to an across-the-board rescission of 0.476%.
The appropriation included an additional $80 million in unobligated funds “rescinded” from
past appropriations, which was redirected to fund FY2006 activities. Overall, P.L. 109-54
provided more funding for EPA than the Administration’s FY2006 request of $7.52 billion,
but less than the FY2005 appropriation of $8.03 billion. Among individual programs,
funding decreased for some activities and increased for others, compared with the FY2006
request and the FY2005 appropriation. (For more information, see CRS Report RL32856,
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Environmental Protection Agency: Appropriations for FY2006, by Robert Esworthy and
David Bearden, and CRS Report RS22064, Environmental Protection Agency: FY2006
Appropriations Highlights, by David Bearden and Robert Esworthy.)
At the end of the first session, the 109th Congress enacted a government-wide rescission
in the Department of Defense Appropriations Act for FY2006 (P.L. 109-148, H.R. 2863).
This rescission reduced FY2006 funding for EPA and all other federal agencies, except the
Department of Veterans Affairs, by 1% and excluded “emergency” spending. P.L. 109-148
also reallocated $8 million in emergency funds to EPA for responding to leaking
underground tanks in Gulf Coast states affected by Hurricanes Katrina and Rita. The
Administration had recommended $15 million for this purpose in October 2005, as part of
a $17.1 billion reallocation of emergency funds.
In the debate over EPA appropriations in the Interior bill, considerable attention focused
on the adequacy of federal assistance to states for the clean water and drinking water State
Revolving Funds (SRFs). States use these funds to issue loans to communities for
constructing and upgrading wastewater and drinking water infrastructure to meet federal
requirements. Prior to the two above rescissions, P.L. 109-54 provided $900 million for the
clean water SRF for FY2006, an increase above the Administration’s request of $730
million, but a decrease below the FY2005 appropriation of $1.09 billion. P.L. 109-54 also
provided $850 million for the drinking water SRF for FY2006, the same as the
Administration had requested and similar to the FY2005 appropriation, prior to the two
above rescissions. Congress did not approve the $166 million rescission for the clean water
SRF that the Administration had proposed in October 2005, as part of a $2.3 billion
rescission affecting numerous federal agencies. This rescission would have taken away
nearly all of the increase that Congress provided for the clean water SRF in P.L. 109-54 and
would have reduced funding back to the level that the Administration originally requested
in February 2005.
Other prominent issues in the FY2006 appropriations debate included the adequacy of
funding for the cleanup of hazardous waste sites under the Superfund program, the cleanup
of commercial and industrial sites referred to as brownfields, EPA’s homeland security
activities, and “congressional project priorities” (or earmarks). In addition to 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, as discussed in the “Superfund and
Brownfields” section below. Another prominent issue was EPA’s use and consideration of
intentional human dosing studies for determining human health risks from exposure to
pesticides. P.L. 109-54 prohibited EPA from using FY2006 funds to conduct such studies
until a final rule is issued specifying measures to protect testing subjects. There also were
varying levels of interest in numerous other activities funded within EPA’s accounts.
Energy and Environment: The Energy Bill
(By Brent Yacobucci, Specialist in Environmental Policy, 7-9662)
After lengthy debate over U.S. energy policy, the 109th Congress enacted omnibus
energy legislation in July 2005. The debate over 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 stalemates over
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several contentious issues. Many of these contentious issues were addressed in various
versions of energy legislation in the 109th Congress, although some of them were dropped
from the final version of the bill. The Energy Policy Act of 2005 (P.L. 109-58, H.R. 6) was
signed by President Bush August 8, 2005. The final version of the bill contains many
provisions involving environmental protection and regulation, including the treatment of
renewable fuels, stricter regulation of underground fuel storage tanks, and environmental
exemptions for oil and gas exploration and production.
A key component of P.L. 109-58 is a requirement that gasoline sold in the United States
must contain 7.5 billion gallons annually of ethanol and other renewable fuels by 2012. The
measure also eliminates Clean Air Act requirements for the use of oxygenates in
reformulated gasoline. The oxygenate standard led to the increased use of MTBE in
gasoline. (MTBE is a fuel additive used to increase combustion efficiency that was found to
contaminate drinking water supplies, primarily due to leaking underground fuel storage
tanks). The House version of H.R. 6 would have banned the use of MTBE, except in states
that specifically allowed its use. It would also have provided a “safe harbor” from defective
liability lawsuits for MTBE and renewable fuels. The Senate bill would also have banned
MTBE and would have provided a safe harbor for renewable fuels, but not for MTBE. The
final version of the bill does not ban MTBE, nor does it provide a safe harbor for MTBE or
renewable fuels. The safe harbor for MTBE was seen as a key impediment to the passage
of an energy bill in the 108th Congress. (For more information on MTBE, see the sections
of this issue brief on “Clean Air Issues” and “Leaking Underground Storage Tanks.”)
P.L. 109-58 provides Clean Water Act and Safe Drinking Water Act exemptions for oil
and gas exploration and production (related to stormwater runoff and hydraulic fracturing).
These provisions are seen by some as necessary to promote increased domestic energy
supplies, while critics complain that they will allow energy producers to sidestep
environmental protection requirements.
P.L. 109-58 also contains provisions on technology to address climate change. Title
XVI establishes programs to promote the adoption of technologies — and their transfer to
developing countries — to reduce greenhouse gas intensity (emissions per unit of economic
output). These provisions are similar to those adopted on the Senate floor in S.Amdt. 817.
The Senate also debated two other climate change amendments that were not included in the
final version of the bill. S.Amdt. 866 expressed the sense of the Senate that Congress should
establish mandatory, market-based limits on greenhouse gas emissions; this amendment was
passed by the Senate in a voice vote, but dropped in conference. S.Amdt. 826 would have
required mandatory emission reductions; this amendment was rejected 38-60. The House
version of H.R. 6 did not address climate change or greenhouse gas emissions. (For further
discussion, see CRS Report RL32873, Key Environmental Issues in the Energy Policy Act
of 2005 (P.L. 109-58, H.R. 6), by Brent D. Yacobucci.)
Recent hurricanes along the gulf coast led to fuel supply disruptions and high gasoline
and diesel prices in many areas of the country. As a result, there is increased interest in
expanding U.S. refining capacity. Although total refining capacity has increased in recent
years, the number of refineries has steadily declined, and no new U.S. refineries have been
built in decades. Many factors have discouraged investment in new refineries, and
environmental regulations have been cited as one of those factors. H.R. 3893, which passed
the House October 7, 2005, would limit the number of fuel blends across the country and
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would streamline federal permitting of refineries, among other provisions. A controversial
amendment to the Clean Air Act’s New Source Review provisions was removed before
passage. (For more information on new source review, see CRS Report RS21608, Clean Air
and New Source Review: Defining Routine Maintenance, by Larry Parker).
Clean Air Issues
(By Jim McCarthy, Specialist in Environmental Policy, 7-7225)
The courts and the executive branch face major decisions on clean air issues in 2006,
with Congress more likely playing an oversight role. One focus will be EPA’s recent
proposal to strengthen air quality standards for fine particles, which are estimated to cause
tens of thousands of premature deaths annually. Whether the proposal is supported by the
available science and what impact its implementation would have are likely issues of
concern. Other issues of continuing interest are EPA’s 2005 decisions limiting interstate
transport of air pollution and establishing cap-and-trade systems for pollution emissions from
coal-fired power plants (not including carbon dioxide, the main greenhouse gas linked to
climate change). Both face court challenges.
Congress acted on several Clean Air Act (CAA) issues in legislation that it passed and
sent to the President in late July. The most significant of these issues, dealing with ethanol
and reformulated gasoline (RFG), were addressed in the Energy Policy Act of 2005, H.R. 6
(P.L. 109-58). The act eliminates a requirement that RFG, used in the nation’s most polluted
areas, contain at least 2% oxygen. In its place, the act requires that the total gasoline supply
contain increasing amounts of a specific oxygenate, ethanol, which is generally made from
corn, as discussed above.
Congress also amended the Clean Air Act in H.R. 3 (P.L. 109-59), the transportation
bill that the President signed on August 10, 2005, further discussed below. H.R. 3 addresses
the requirement that state and local transportation planners demonstrate conformity between
their transportation plans and the timely achievement of air quality standards. Under the act,
the frequency of conformity determinations and the time frame during which conformity
must be demonstrated will both be reduced. Failure to demonstrate conformity will lead to
a temporary suspension of federal highway funds.
Other Clean Air Act amendments appear to have stalled. A bill that would have
established a cap-and-trade program for emissions of sulfur dioxide (SO ), nitrogen oxides
2
(NOx), and mercury from coal-fired electric power plants was among the first items on the
agenda of the 109th Congress: S. 131 (the Clear Skies Act) was scheduled for markup by the
Senate Environment and Public Works Committee on March 9, 2005. But the committee
failed to approve the bill, on a 9-9 tie vote, in large part because of complaints that the bill
would weaken existing Clean Air Act requirements. Another issue in the debate was whether
to cap emissions of carbon dioxide (CO ) in addition to the other three pollutants. With Clear
2
Skies stalled, on March10, 2005, EPA finalized the Clean Air Interstate Rule (CAIR), which
will cap emissions of SO and NOx from power plants in 28 eastern states and the District
2
of Columbia and establish a cap-and-trade system through regulation.
A deadline for mercury regulations helped drive the Clear Skies debate: EPA faced a
judicial deadline of March 15, 2005, to promulgate standards for power plant mercury
emissions. The agency met this deadline, but the specific regulations have been widely
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criticized and are now being challenged by at least 15 states. The regulations could have been
overturned if Congress disapproved them under the Congressional Review Act. A resolution
to do so (S.J.Res.20) was defeated by a vote of 51-47 on September 13. Whether to modify
other requirements of the Clean Air Act (New Source Review, deadlines for nonattainment
areas, and provisions dealing with interstate air pollution) have also been contentious issues.
For additional information, see CRS Issue Brief IB10137, Clean Air Act Issues in the 109th
Congress, by James E. McCarthy.
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.
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.)
During the first session of the 109th Congress, some legislative action occurred on
specific CWA programs and issues. In December 2005, Congress passed H.R. 3963 (H.Rept.
109-293), authorizing $40 million per year for six years to extend the Long Island Sound
program under Section 119 of the act. President Bush signed it on December 22 (P.L. 109-
137). Also in December, the House approved H.R. 1721 (H.Rept. 109-292), to extend the
coastal water quality program in Section 406 of the act and to authorize $30 million over six
years for coastal water quality monitoring activities. On May 18, the House Transportation
and Infrastructure Committee approved bills to reauthorize two other existing CWA
programs. The bills are (1) H.R. 624 (H.Rept. 109-166), to reauthorize Section 221 of the
act and provide $1.5 billion over six years for sewer overflow projects (identical to H.R. 784
from the 108th Congress), and (2) H.R. 1359 (H.Rept. 109-167), to extend Section 220 of the
act, authorizing a pilot program for alternative water source projects.
Legislation to authorize funding for clean water infrastructure projects has received
attention in the 109th Congress. At issue is how the federal government will help states and
cities meet 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. On
July 20, the Senate Environment and Public Works Committee approved S. 1400 (S.Rept.
109-186), authorizing federal funds for water quality and drinking water State Revolving
Fund programs. In the House, several clean water infrastructure funding bills were
introduced (H.R. 2684, H.R. 4560) but no further action occurred. Prospects for future
action on these legislative proposals is uncertain.
The hurricanes that damaged large areas of the U.S. Gulf Coast in August and
September 2005 have been a major focus of congressional attention. Wide-ranging oversight
and legislative efforts are examining short-term responses to the disasters, as well as options
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for policies and programs that may be needed for longer-term recovery. One area of interest
is restoring public services that were disabled by the storms, including water infrastructure
facilities that experienced flooding and wind damage. States and EPA are assessing needs
to repair or rebuild these facilities. On September 27, 2005, the Senate passed a bill intended
to streamline delivery of funds through existing EPA programs to repair storm-damaged
sewage treatment and drinking water plants (S. 1709). (For information, see CRS Report
RS22285, Hurricane-Damaged Drinking Water and Wastewater Facilities: Impacts, Needs,
and Response, by Claudia Copeland.)
Water infrastructure funding also has been an issue in the context of the federal budget
and appropriations. 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 improvement projects. Administration officials said that cuts for
the SRF in FY2006 were necessary because Congress boosted funds above their requested
level in FY2005. In final action on FY2006 appropriations legislation for EPA (P.L. 109-
54), Congress agreed to provide $900 million for grants to capitalize clean water SRFs, $170
million more than the Administration requested but a 17.5% reduction from the FY2005
appropriated level for this program. In addition to funds for SRF grants, the FY2006
appropriation also included $285 million for congressionally earmarked water infrastructure
project grants. However, across-the-board reductions that appropriators included in P.L.
109-54 and a subsequent act (P.L. 109-148) reduced these amounts by 1.476%, resulting in
FY2006 clean water SRF appropriations of $887 million and earmarked project grants
totaling $281 million. (For additional information, see CRS Issue Brief IB89102, Water
Quality: Implementing the Clean Water Act, by Claudia Copeland.)
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 put in place regulations
covering 91 contaminants, and more rules are pending. 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 public water systems continue
implementing the 1996 amendments and related regulations.
Several SDWA issues have received congressional attention. 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 and radium standards); and
contamination problems caused by specific contaminants, such as the fuel additive 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 SDWA regulation the underground injection of fluids
for purposes of hydraulic fracturing related to oil and gas production activities. The Energy
Policy Act of 2005, P.L. 109-58 (H.R. 6), Section 322, exempts all fracturing fluids, except
diesel fuel, from regulation. (For further discussion, see CRS Report RL32873, Key
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Environmental Issues in the Energy Policy Act of 2005 (P.L. 109-58, H.R. 6), by Brent D.
Yacobucci.) Other legislation, 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.
As in recent Congresses, legislation has been offered 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. (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 local systems finance projects needed to meet standards and address health risks. For
FY2006, in P.L. 109-54, Congress provided $850 million in grants for the DWSRF program,
as requested. Despite this program, an infrastructure funding gap is expected to grow, as
systems act to meet new standards and repair aging facilities. EPA’s latest needs survey
indicates that drinking water systems require a capital investment of $277 billion over the
next 20 years. In July, the Senate Environment and Public Works Committee ordered
reported S. 1400, the Water Infrastructure Financing Act, which would reauthorize and
increase funding authority for the DWSRF.
Hurricane Katrina damaged numerous drinking water systems and greatly increased the
infrastructure needs in the Gulf Coast area. The Senate passed S. 1709 to add flexibility to
the clean water and drinking water SRF programs to facilitate their use to repair water
infrastructure damaged by Hurricane Katrina. For information on hurricane-related issues,
see CRS Report RS22248, Federal Disaster and Emergency Assistance for Water
Infrastructure Facilities and Supplies; and CRS Report RL33115, Cleanup after Hurricane
Katrina: Environmental Considerations. (For more on SDWA issues and legislative action,
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. In P.L.
109-54, Congress provided $73 million from the trust fund for FY2006, as requested. For
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FY2005, Congress provided $69.4 million. The fund balance currently exceeds $2 billion and
it earned some $77 million in interest during FY2005.
Significant progress has been made in the LUST cleanup 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;
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 air quality standard.)
Another issue is that most states have not had adequate resources to fully enforce UST leak
prevention regulations. Some states have urged Congress to increase trust fund
appropriations for LUST cleanup activities, and to allow the fund to be used to enforce the
leak prevention program.
The Energy Policy Act of 2005 (P.L. 109-58, H.R. 6) adds new leak prevention
provisions to the UST regulatory program and authorizes funding specifically for the
remediation of petroleum tank leaks that involve MTBE. The act also adds tank inspection
and operator training requirements, and requires EPA or a state, when determining the
portion of cleanup costs to recover, to consider the tank owner’s ability to pay for cleanup
and still maintain business operations. It authorizes the appropriation of $200 million from
the LUST Trust Fund annually for five years for addressing leaks involving MTBE or
renewable fuels, and another $200 million annually for five years for EPA and states to
administer the general leaking petroleum tank cleanup program. The act allows EPA and
states to use LUST funds to enforce UST leak prevention regulations and authorizes trust
fund appropriations for this purpose. It also removes the Clean Air Act oxygenated fuel
requirement, and extends the LUST Trust Fund tax through March 2011. (See also CRS
Report RL32865, Renewable Fuels and MTBE: A Comparison of Selected Provisions in the
Energy Policy Act of 2005 (H.R. 6); 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)
The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, 42 U.S.C. 9601-9675) established the Superfund program to clean up
contamination at sites that pose significant threats to human health and the environment. At
federal facilities, the federal agency determined to have caused the contamination pays for
the cleanup out of its budget, subject to appropriations by Congress. Although Potentially
Responsible Parties (PRPs) are liable for cleanup costs at private sector sites, EPA’s
Superfund account pays for the cleanup of sites where there is no financially viable party.
The adequacy of funding to clean up such sites has been a long-standing issue. In the first
session of the 109th Congress, P.L. 109-54 (H.R. 2361) appropriated $1.26 billion for EPA’s
Superfund account for FY2006 (prior to transfers and rescissions of 0.476% required in P.L.
109-54 and 1% required in P.L. 109-148). The Administration had requested $1.28 billion,
and Congress had appropriated $1.25 billion for FY2005.
The FY2006 appropriation was funded with general Treasury revenues, as in FY2004
and FY2005. In earlier years, general revenues on average accounted for 17% to 20% of the
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total funding for the Superfund program, and the balance of the appropriation came from a
dedicated trust fund supported by taxes on industry. Authority for collecting these taxes
expired at the end of 1995, and the balance of the trust fund declined from a high of $3.8
billion in FY1997 to essentially zero in FY2004. (See CRS Report RL31410, Superfund
Taxes or General Revenues: Future Funding Options for the Superfund Program, by James
E. McCarthy.) At least three bills were introduced in the first session that would reinstate
Superfund taxes, none of which received committee action.
Numerous other bills were introduced in the first session to address issues related to
cleanup under Superfund, none of which received congressional action. After Hurricanes
Katrina and Rita, four bills were introduced to address the use of Superfund authorities to
respond to public health threats from releases of hazardous substances that may have
occurred during the two storms and subsequent flooding. Two resolutions also were
introduced expressing the sense of the House and Senate that the “crisis” of Hurricane
Katrina should not be used as justification to waive or relax environmental requirements in
order to hasten redevelopment. Two other bills addressed health hazards from lead-based
paint and would give priority consideration to Superfund sites in awarding federal grants for
remediation of this substance. At least one bill was introduced to exempt gasoline service
station dealers from liability for cleanup of waste oil.
CERCLA also authorizes EPA to provide assistance to states and tribes for the cleanup
of abandoned, idled, or underutilized commercial and industrial sites, commonly referred to
as “brownfields.” Although brownfields typically are less contaminated than Superfund
sites, they often require cleanup to make them safe for redevelopment. P.L. 109-54
appropriated $165 million for EPA’s brownfields program in FY2006 (prior to the 0.476%
and 1% rescissions noted above). The Administration had requested $210 million, and
Congress had appropriated $163 million for FY2005. Additional federal assistance for
economic redevelopment of brownfields is provided through the Department of Housing and
Urban Development (HUD).
In addition to funding, numerous bills to address the cleanup and redevelopment of
brownfields were considered in the first session. P.L. 109-59 (H.R. 3) reauthorized funding
for federal surface transportation programs and authorized a pilot program to support
planning activities for highway and public transportation projects, including brownfield
redevelopment planning. As passed by the House, H.R. 280 would make HUD brownfield
grants more accessible to smaller communities. The House and Senate also passed budget
reconciliation legislation in the first session (H.R. 4297 and S. 2020) that would extend or
expand authority for tax incentives to encourage the redevelopment of brownfields. Five
other bills were introduced to provide similar tax incentives, but they did not receive
committee action.
Surface Transportation and Environment
(By Linda Luther, Environmental Policy Analyst, 7-6852)
On August 10, 2005, President Bush signed P.L. 109-59 (H.R. 3), the Safe,
Accountable, Flexible, and Efficient Transportation Equity Act of 2005: A Legacy for Users
(SAFETEA-LU, also known as SAFETEA). The act authorizes federal surface
transportation programs (highway, highway safety, and transit programs) undertaken by the
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U.S. Department of Transportation’s (DOT’s) Federal Highway Administration (FHWA) and
Federal Transit Administration (FTA) through FY2009.
During the reauthorization process, certain environmental issues garnered significant
attention from both Members of Congress and interested stakeholders (e.g., state
transportation agencies, transportation construction organizations, and environmental
groups). This attention was due to both the impact that surface transportation projects can
have on the environment (and, possibly, the costs associated with addressing those impacts)
and the impact that compliance with environmental requirements can have on project
delivery.
SAFETEA includes a variety of environmental provisions. Generally, those provisions
do one of the following: authorize funding to eliminate, control, mitigate, or minimize
environmental impacts associated with surface transportation programs or projects; or specify
procedures required to be undertaken to expedite compliance with certain environmental
requirements. With regard to the latter, environmental provisions in SAFETEA that have
garnered the most attention and debate are those that change the procedures DOT will be
required to follow to comply with the Clean Air Act’s (42 U.S.C. § 7401 et seq.) conformity
requirements; to “streamline” compliance with environmental review requirements of the
National Environmental Policy Act (NEPA, 42 U.S.C. § 4321 et seq.); and to streamline
compliance with “Section 4(f)” requirements regarding the use of publicly owned parks and
recreation areas, wildlife and waterfowl refuges, and publicly or privately owned historic
sites. (For additional information on these issues, see CRS Report RL33057, Surface
Transportation Reauthorization: Environmental Issues and Legislative Provisions in
SAFETEA-LU (H.R. 3, P.L. 109-59); and CRS Report RL32106, Transportation Conformity
Under the Clean Air Act: In Need of Reform?.)
Chemicals: Security and Regulatory Issues
(By Linda Schierow, Specialist in Environmental Policy, 7-7279)
The 109th Congress is considering how best to ensure enhanced security against
terrorism for privately owned facilities storing or handling large quantities of potentially
dangerous chemicals. Three bills have been introduced that 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 and S. 2145 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. S. 2145 would direct DHS to
establish security performance standards for facilities based on relative risk and would allow
facility owners to develop site-specific security measures to meet those standards. Congress
approved the conference report on H.R. 2360, providing appropriations for FY2006 to the
DHS, which became P.L. 109-90. The report states that enforceable federal standards are
necessary to protect against a terrorist attack on chemical facilities and requires DHS to
submit a report by February 10, 2006, on the resources needed to implement and ensure
compliance with security requirements. Other bills (S. 2052/H.R. 713 and S. 1995) aim to
enhance security for agricultural businesses and wastewater treatment facilities. (For more
information, see CRS Report RL31530, Chemical Facility Security, by Linda-Jo Schierow,
and CRS Report RL33043, Legislative Approaches to Chemical Facility Security, by Dana
A. Shea.)
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Legislation also has been introduced that would 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, enabling legislation is necessary prior to U.S. ratification. Three bills have been
introduced into the 109th Congress. H.R. 3849 and S. 2042 would amend the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), which governs pesticidal uses of the
chemicals. H.R.4591 would amend the Toxic Substances Control Act (TSCA), which more
generally authorizes EPA regulation of U.S. commerce in chemicals. The Administration
and the chemical industry have been urging Congress to enact implementing legislation for
several years, but particular legislative provisions have been controversial, especially with
regard to proposed changes to EPA’s existing regulatory authority for POPs under TSCA and
FIFRA. (For more information, see CRS Report RL32150, International Agreements on
Persistent Organic Pollutants (POPS): Background and Issues for Congress, by Linda-Jo
Schierow, Anne Hardenbergh.)
Defense Environmental Cleanup and Other Issues
(By David Bearden, Environmental Policy Analyst, 7-2390)
The Department of Defense (DOD) is responsible for cleaning up contamination and
complying with other environmental requirements on approximately 30 million acres of
military lands. 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 on former nuclear weapons sites. The first session of the 109th Congress
enacted the FY2006 appropriations bills that fund these activities, including funding for the
cleanup of closed military bases (P.L. 109-114, H.R. 2528), active installations and other
former military properties (P.L. 109-148, H.R. 2863), and former nuclear weapons sites (P.L.
109-103, H.R. 2419). A controversial environmental provision to allow drilling in the Arctic
National Wildlife Refuge was attached to the conference agreement on the FY2006 defense
appropriations bill (H.R. 2863, H.Rept. 109-359), but it was deleted in the final bill after a
cloture vote failed. (See CRS Issue Brief IB10136, Arctic National Wildlife Refuge (ANWR):
Controversies for the 109th Congress, by Lynne Corn.) The first session also enacted
FY2006 defense authorization legislation (P.L. 109-163, H.R. 1815), which included specific
funding authorizations for cleanup of military lands and former nuclear weapons sites.
Authorization and appropriation of funds for defense-related environmental activities in
FY2007 will be considered in the second session.
Among the environmental issues affecting DOD has been the economic and technical
feasibility of cleaning up closed military bases for civilian reuse. Although most of the land
on bases closed under past closure rounds has been cleaned up and transferred for
redevelopment, some of these bases have yet to be cleaned up to make them safe for their
intended use. P.L. 109-114 appropriated $255 million in FY2006 for remaining cleanup at
bases closed under past rounds. Although the appropriation was $123 million less than
requested, proceeds from the sale of land on the former El Toro Marine Corps Air Station
in California were to be used to increase funding for the cleanup of Navy sites. The
appropriation also included an increase for Army and Air Force sites. The law appropriated
$1.5 billion to implement a new round of base closures and realignments, which Congress
approved in the first session, about $400 million less than requested. There has been rising
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interest in the extent to which contamination on these properties could affect the potential
for economic redevelopment, if funding or technological constraints would limit the degree
of cleanup that would be needed to make the land safe for its intended purpose. (See CRS
Report RS22065, Military Base Closures: Role and Costs of Environmental Cleanup, by
David M. Bearden.)
Another issue affecting DOD has been whether broader environmental exemptions than
provided in current law are necessary to preserve military training capabilities. The 107th and
108th Congresses enacted the exemptions from certain wildlife protection requirements that
DOD requested. However, Congress has not enacted exemptions from certain air quality and
hazardous waste cleanup requirements that DOD also has requested. These exemptions have
been controversial based on concerns about human health risks. As enacted, none of the
FY2006 defense authorization or appropriations bills noted above included these exemptions.
(See CRS Report RS22149, Exemptions from Environmental Law for the Department of
Defense: An Overview of Congressional Action, by David M. Bearden.)
Among the issues 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.
P.L. 109-103 appropriated $6.19 billion for cleanup of these sites in FY2006, an increase
above the $6.02 billion request, but a decrease relative to the $6.81 billion FY2005
appropriation. Among major concerns expressed in the FY2006 funding debate was the
perceived slow pace and high cost of cleanup at some of the larger and more complex
cleanup sites, such as the Savannah River site in South Carolina and the Hanford site in
Washington State. (See the “Environmental Management and Cleanup” section in CRS
Report RL32852, Energy and Water Development: FY2006 Appropriations, by Carl E.
Behrens.)
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 enacted comprehensive energy legislation, similar
to unfinished legislation in the 108th Congress. Signed by President Bush August 8, 2005,
the Energy Policy Act of 2005 (P.L. 109-58; H.R. 6) authorizes increased funding for
hydrogen and fuel cell research, establishes tax credits for the purchase of alternative fuel and
advanced technology vehicles, and promotes biofuels. A key component of H.R. 6, a
renewable fuels standard (RFS), requires the use of 7.5 billion gallons of renewable fuel in
gasoline by 2012. Earlier versions of the bill would have granted blenders of renewable fuels
and MTBE (another gasoline additive) a “safe harbor” from defective product liability, but
these provisions were not included in the final bill. Similar liability protection for MTBE
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was included in the energy bill in the 108th Congress, and was cited as one of the
impediments to the bill’s passage.
The 109th Congress enacted legislation to reauthorize federal highway and transit
programs. On August 10, 2005, President Bush signed the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (P.L. 109-59, H.R. 3), discussed
above. Among other provisions, the highway bill reauthorizes funding for various projects,
including advanced technology and alternative fuel transit buses. Further, the bill allows
states to exempt certain alternative fuel and high-efficiency vehicles from high occupancy
vehicle (HOV) restrictions.
A key component of the Bush Administration’s environmental goals focuses on research
on hydrogen fuel and fuel cells — through the Hydrogen Fuel and FreedomCAR initiatives.
For FY2006, Congress appropriated approximately $340 million for these initiatives, about
$20 million below the Administration’s request (Energy and Water Appropriations bill, P.L.
109-103). (For further discussion, see CRS Issue Brief IB10128, Alternative Fuels and
Vehicles: Issues in Congress, by Brent D. Yacobucci.)
Table 1. Action on Environmental Legislation in the 109th Congress
Bill Status
Purpose
H.R. 3 (P.L. 109-59)
Signed by the President
Among other provisions, amends the
The Safe, Accountable, Flexible August 10, 2005
Clean Air Act conformity provisions,
and Efficient Transportation
and specifies procedures to perform
Equity Act of 2005: A Legacy for
environmental reviews under NEPA
Users (SAFETEA-LU)
for transportation projects. Amends
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 (P.L. 109-58)
Signed by the President
An omnibus energy bill. Various
Energy Policy Act of 2005
August 8, 2005
environmental provisions include
Conf. Report (H.Rept. 109-190)
expediting permitting, amendments to
the Clean Air Act fuels requirements,
funding for MTBE cleanup, and a
renewable fuels standard (RFS).
H.R. 280
Passed the House
Makes HUD brownfields grants more
Brownfields Redevelopment December 13, 2005
accessible to smaller communities.
Enhancement Act
(H.Rept. 109-138)
Establishes a pilot program that
includes brownfield planning.
H.R. 1721
Passed the House
Amends the Clean Water Act to
Coastal Recreation Water Quality December 7, 2005
reauthorize coastal recreation water
and Monitoring
(H.Rept. 109-292)
quality programs (Section 406)
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Bill Status
Purpose
H.R. 1815 (P.L. 109-163)
Signed by the President
Authorized funding for national
National Defense Authorization January 6, 2006
defense programs, including
Act for FY2006
(H.Rept. 109-360)
environmental cleanup at active,
closed, and other former military
installations, and former defense
nuclear weapons sites. Did not
include exemptions from the Clean
Air Act, Solid Waste Disposal Act,
and CERCLA that DOD had
requested.
H.R. 2361 (P.L. 109-54)
Signed by the President
Funds EPA at $7.73 billion for
Interior, Environment and Related August 2, 2005
FY2006 (subject to a 0.476% across-
Agencies Appropriations Act (H.Rept. 109-188)
the-board rescission and a 1%
FY2006
government-wide recision in P.L.
109-148).
H.R. 2419 (P.L. 109-103)
Signed by the President
A p p r o p r i a t e d f u n d i n g f o r
Energy and Water Development November 19, 2005
environmental cleanup at former
Appropriations Act for FY2006
(H.Rept. 109-275)
defense nuclear weapons sites.
H.R. 2528 (P.L. 109-114)
Signed by the President
Appropriated funding for national
Military Quality of Life, Military November 30, 2005
defense programs, including
Construction, Veterans Affairs (H.Rept. 109-305)
environmental cleanup at closed
a n d R e l a t e d A g e n c i e s
military installations.
Appropriations Act for FY2006
H.R. 2863 (P.L. 109-148)
Signed by the President
Appropriated funding for national
D e p a r t m e n t o f D e f e n s e December 30, 2005
defense programs; including funding
Appropriations Act for FY2006 (H. Rept 109-359)
for cleanup of active and former
military installations. Included a 1%
government-wide recision and
reallocated $8 million to EPA for
responding to leaking underground
storage tanks in areas affected by
Hurricanes Katrina and Rita.
H.R. 3893
Passed the House
A bill to expedite the construction of
Gasoline for America’s Security October 7, 2005
new U.S. refining capacity. Among
Act of 2005
(H.Rept. 109-244)
other provisions the bill would
streamline federal permitting and
limit the number of fuel blends
nationwide.
H.R. 3963 (P.L. 109-137)
Signed by the President
Amends the Clean Water Act to
Long Island Sound Authorization December 22, 2005
reauthorize the Long Island Sound
of Appropriations
(H.Rept. 109-293)
Program (Sec. 119)
H.R. 4297
Passed the House
Budget reconciliation legislation.
T a x R e l i e f E x t e n s i o n December 8, 2005
Includes provisions to extend tax
Reconciliation Act of 2005
(H.Rept. 109-304)
incentives for the cleanup of
brownfields.
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Bill Status
Purpose
S. 131
Markup failed on a tie vote
A bill to amend the Clean Air Act to
Clear Skies Act
March 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
and other major pollution sources,
interstate transport of air pollution,
and nonattainment areas.
S. 606
Reported by Senate Committee on Requires the use of 6 billion gallons
Reliable Fuels Act
Environment and Public Works on of renewable fuel by 2012. Bans the
May 26, 2005
use of MTBE nationwide four years
(S.Rept. 109-74), then superseded after enactment. Eliminates
by provisions incorporated into reformulated gasoline oxygen
H.R. 6.
requirements.
S. 732 (H.R. 3, P.L. 109-59)
Signed by the President
Environmental provisions similar to
The Safe, Accountable, Flexible August 10, 2005.
H.R. 3. In addition to historic sites,
and Efficient Transportation
amendments to the DOT Act of 1966
Equity Act of 2005 (SAFETEA)
would apply to publicly owned parks,
recreation areas, wildlife and
waterfowl refuges.
S. 1709
Passed by Senate September 27, Adds flexibility to the clean water
Gulf Coast Emergency
2005 (no written report)
and drinking water state revolving
Water Assistance Act
fund programs to facilitate use of
funds to repair water infrastructure
damaged by Hurricane Katrina or
related conditions.
S. 2020
Passed the Senate
Budget reconciliation legislation.
Tax Relief Act of 2005
November 11, 2005
Includes provisions that would extend
(no written report)
incentives for the cleanup of
brownfields.
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