Order Code IB10107
CRS Issue Brief for Congress
Received through the CRS Web
Clean Air Act Issues in the 108th Congress
Updated November 30, 2004
James E. McCarthy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Designation of Nonattainment Areas for New Air Quality Standards
MTBE and Ethanol
New Source Review (NSR)
Clear Skies / Multi-Pollutant Legislation
Mercury from Power Plants
Conformity of Transportation Plans and SIPs
Clean Air Act Issues in the 108th Congress
The most prominent air quality issue in
the 108th Congress was what to do about
emissions from coal-fired electric power
plants. On January 30, 2004, EPA proposed
standards for mercury, sulfur dioxide, and
nitrogen oxide emissions from such plants.
The proposed mercury standards have been
particularly controversial: EPA claims that
technology to achieve more than a 30% reduction in mercury emissions cannot be implemented until 2018, an assertion widely disputed.
Legislation was also proposed on the
subject — a group of bills referred to as
“multi-pollutant” legislation. The Administration version (the Clear Skies Act, H.R. 999/S.
485/S. 1844) proposed to replace numerous
existing Clean Air Act requirements with a
national cap and trade program for sulfur
dioxide, nitrogen oxides, and mercury. Senators Jeffords and Carper, and Representatives
Sweeney, Waxman, and Bass, all introduced
bills that were more stringent than Clear
Skies, and four of the five would have regulated carbon dioxide in addition to the other
pollutants. Congress took no action on any of
Controversy also arose over EPA’s
proposed and promulgated changes to the
Clean Air Act’s New Source Review (NSR)
requirements. NSR requires installation of
best available emission controls when power
plants and other major facilities are modified.
Since December 31, 2002, EPA has promulgated several changes to streamline (and,
many argue, weaken) the NSR requirements.
On January 22, 2003, the Senate approved an
amendment to H.J.Res. 2 that directed the
National Academy of Sciences to conduct a
study of the NSR changes. The President
signed the bill, with the amendment, February
20, 2003 (P.L. 108-7).
The conference report on the energy bill
(H.R. 6), which came to the House and Senate
floor for action the week of November 17,
2003, contained several Clean Air Act provisions. Most of these were also contained in S.
2095, a revised version of the bill introduced
February 12, 2004, and in H.R. 4503, which
passed the House June 15, 2004. Most of the
air provisions concerned the gasoline additives MTBE and ethanol, used to meet Clean
Air Act requirements that reformulated gasoline (RFG) sold in the nation’s worst ozone
nonattainment areas contain at least 2% oxygen, to improve combustion. MTBE has
contaminated ground water in several states.
All three bills would have banned the use of
MTBE as a fuel additive nationwide, except in
states that specifically authorized its use, after
December 31, 2014; repealed the requirement
that RFG contain oxygen; provided a major
new stimulus to the use of ethanol; authorized
$2 billion in grants to assist merchant MTBE
production facilities in converting to the
production of other fuel additives; and authorized funds for MTBE cleanup. H.R. 6 and
H.R. 4503 would also have provided a “safe
harbor” from product liability lawsuits for
producers of MTBE and renewable fuels; S.
2095 would not have.
The 108th Congress also enacted changes
to the “small engine” provisions of the Clean
Air Act and considered changes to the requirement that metropolitan area transportation
plans “conform” to the act.
MOST RECENT DEVELOPMENTS
On June 15, 2004, the House passed H.R. 4503, a comprehensive energy bill virtually
identical to the conference version of H.R. 6, which it had passed November 18, 2003. The
bill included provisions amending the Clean Air Act to address reformulated gasoline,
renewable fuels, and MTBE. Although the conference report on H.R. 6 passed the House
in November 2003, the Senate was unable to muster the 60 votes necessary to terminate
debate, and the bill never came to a vote on final passage.
On June 29, 2004, EPA proposed the designation of 243 counties in 21 states and the
District of Columbia as “nonattainment areas” for a new fine particle (PM2.5) air quality
standard. On April 15, 2004, the Agency had designated 474 counties in 32 states and DC
nonattainment for a new 8-hour ozone standard. Implementation of the two standards raised
a number of questions in areas affected by the designations. Amendments that would have
modified some of the implementation procedures for areas affected by upwind pollution were
also attached to the energy bill (H.R. 6 / H.R. 4503), and not enacted.
Both the House and Senate passed surface transportation legislation that would have
modified the Clean Air Act’s conformity provisions. The Senate bill, S. 1072, passed
February 12, 2004. The House bill, H.R. 3550, passed April 2, 2004. Conferees began
meeting to attempt to reconcile the bills’ provisions June 14, but the conference did not
report an agreed version of the bill.
BACKGROUND AND ANALYSIS
This issue brief looks at seven prominent air issues that were of interest in the 108th
Congress: designation of nonattainment areas for the new PM2.5 and 8-hour ozone standards;
MTBE and ethanol; New Source Review; multi-pollutant (or Clear Skies) legislation;
mercury from power plants; transportation conformity; and emission standards for small
engines. Most of these issues are addressed at greater length in separate CRS reports, which
are referenced in the appropriate sections.
Designation of Nonattainment Areas for New Air Quality Standards. On
June 29, 2004, EPA proposed the designation of 243 counties in 21 states and the District
of Columbia as “nonattainment areas” for a new fine particle (PM2.5) air quality standard.
On April 15, 2004, the Agency had designated 474 counties in 32 states and DC
nonattainment for a new 8-hour ozone standard. The standards were promulgated in 1997,
but due to legal challenges and other delays, are just now being implemented. The
nonattainment areas must adopt emission control programs sufficient to bring air quality into
attainment by an EPA deadline, generally 5 or 10 years after designation in areas being
designated for the first time.
The prospect of designation has raised numerous questions in these areas, including
when and why the standard was established; what criteria are used to determine
nonattainment; how boundaries of the nonattainment area are established; whether special
provisions can be made for areas affected by pollution from upwind; what the deadline will
be for reaching attainment; and how designation might affect economic development and
transportation investments in an area. How areas already designated nonattainment for
EPA’s existing 1-hour ozone standard (51 areas, including 239 counties) will be affected by
implementation of the new ozone standard presents additional questions. (For additional
information on all of these questions, see CRS Report RL32345, Implementation of EPA’s
8-Hour Ozone Standard, and CRS Report RL32431, Particulate Matter (PM2.5): National
Ambient Air Quality Standards (NAAQS) Implementation.)
In many — perhaps a majority of — cases, EPA has concluded that new nonattainment
areas will have little difficulty demonstrating attainment: the Agency projects that other
federal requirements, such as new auto and truck emission standards and federal controls on
power plants, will be sufficient to demonstrate attainment in 88% of monitored ozone
nonattainment counties and more than half the monitored PM2.5 nonattainment counties by
2015. The nonattainment areas will face deadlines for reaching attainment sooner than 2015,
however, in most cases. This has left many complaining that the Agency has done a poor job
of matching the implementation timelines of its various programs, and should either grant
nonattainment areas more time to comply, or speed implementation of federal controls on
Another issue that has been widely discussed concerns the boundaries of the designated
nonattainment areas. The Clean Air Act establishes a process for setting these boundaries,
but, in general, it allows the EPA Administrator some discretion in determining how large
or small an area should be. EPA has recommended that Metropolitan Statistical Areas or
Consolidated Metropolitan Statistical Areas serve as the “presumptive boundaries” for new
nonattainment areas. Even though specific counties within such an area may meet the
standard, they are likely to be included in the nonattainment area if the pollution generated
there could influence ozone or PM2.5 readings elsewhere in the metropolitan area. The
inclusion of such counties in nonattainment areas has proven controversial in many states.
The new ozone standard is widely viewed as a strengthening of requirements to control
ozone pollution, but it may have the opposite effect in many cases. In areas already
designated nonattainment under the old one-hour ozone standard (51 areas with 110 million
people), the principal effect of the new standard is likely to be more time to reach attainment
— as many as 16 years more, in some cases. This is so, because EPA plans to revoke the
one-hour standard, which had stringent, statutory deadlines, and recategorize the 51 areas
under the new standard, with additional time to comply. The legality of the planned
revocation raises numerous questions; but, for officials facing deadlines under the old
standard as early as 2005, EPA’s plan may be welcome news.
In any event, the implementation plan (like most EPA rules) has already been
challenged in the courts. The Agency’s first attempt at an implementation plan was among
the issues remanded by the Supreme Court in a 2001 decision (Whitman v. American
Trucking Ass’ns, 121 S. Ct. 903 (2001)). The new implementation plan was challenged by
four environmental groups in a suit filed June 29, 2004 (American Lung Association v. EPA,
D.C. Cir., No. 04-1209).
Concern over the potential impacts of the new standard has also led to several
legislative attempts to modify the implementation requirements. These have generally been
attached to larger pieces of legislation, and (with one minor exception) have not been
enacted. Section 1443 of the energy bill (H.R. 6), for example, would have extended
attainment deadlines in areas affected by upwind pollution, and Section 970 of the bill would
have required a demonstration project to address the effect of transported ozone and ozone
precursors on air quality in southwestern Michigan, prohibiting EPA from imposing any
requirements or sanctions during the two years pending the project’s completion.
The Administration also proposed to modify the ozone and PM2.5 requirements in its
Clear Skies bill (H.R. 999 / S. 485). In Section 3, Clear Skies would have allowed EPA to
avoid designating 8-hour ozone and PM2.5 areas as nonattainment until 2016, provided that
the area demonstrates that it will attain the standards by December 31, 2015. Areas fitting
into this new “transitional” category could avoid additional regulatory controls, including the
requirement to demonstrate conformity between their clean air and highway construction
programs, if they could demonstrate that attainment would be achieved through the
imposition of federal controls on utilities, diesel engines, automobiles, and other sources.
No action was taken on this bill.
MTBE and Ethanol. A second set of issues in the 108th Congress, regulation of the
gasoline additives MTBE and ethanol, was considered by several previous Congresses. At
least initially, the issues seemed on a faster track in the 108th Congress: the House passed
legislation to address them in April 2003; the Senate did so in late July 2003; and a
conference report (H.Rept. 108-375) was agreed to in the House on November 18, 2003. As
noted previously, however, on November 21, 2003, the Senate failed to achieve the 60 votes
necessary to end debate on the conference report, and the bill (H.R. 6) was pulled from the
floor. A revised version (S. 2095, introduced February 12, 2004), which removed some of
its most controversial provisions and lowered its cost, was not acted on.
MTBE is used to meet Clean Air Act requirements that reformulated gasoline (RFG),
sold in the nation’s worst ozone nonattainment areas, contain at least 2% oxygen, to improve
combustion. Under the RFG program, areas with “severe” or “extreme” ozone pollution (90
counties with a combined population of 64.8 million) must use reformulated gas; areas with
less severe ozone pollution may opt into the program as well, and many have. In all, portions
of 17 states and the District of Columbia use RFG, and about 30% of the gasoline sold in the
United States is RFG.
The law requires that RFG contain at least 2% oxygen by weight. Refiners can meet
this requirement by adding a number of ethers or alcohols, any of which contains oxygen and
other elements. By far the most commonly used oxygenate has been MTBE. In 1999, 87%
of RFG contained MTBE, a number reduced to 56% by late 2003. MTBE has also been used
since the late 1970s in non-reformulated gasoline, as an octane enhancer, at lower
concentrations. As a result, gasoline with MTBE has been used virtually everywhere in the
United States, whether or not an area has been subject to RFG requirements.
MTBE leaks, generally from underground gasoline storage tanks, have been implicated
in numerous incidents of ground water contamination. The substance creates taste and odor
problems in water at very low concentrations, and some animal studies indicate it may pose
a potential cancer risk to humans. For these reasons, 19 states have taken steps to ban or
regulate its use. The most significant of the bans (in California and New York) took effect
at the end of 2003, leading many to suggest that Congress revisit the issue to modify the
oxygenate requirement and set more uniform national requirements regarding MTBE and its
potential replacements (principally ethanol).
Support for eliminating the oxygen requirement on a nationwide basis is widespread
among environmental groups, the petroleum industry, and states. In general, these groups
have concluded that gasoline can meet the same low emission performance standards as RFG
without the use of oxygenates. But potential opposition to enacting legislation removing the
oxygen requirement arises from a number of agricultural interests. Nearly 10% of the
nation’s corn crop is used to produce the competing oxygenate, ethanol. If MTBE use is
reduced or phased out, but the oxygen requirement remains in effect, ethanol use will soar,
increasing demand for corn. Ethanol use has already grown substantially as MTBE begins
to be phased out. Conversely, if the oxygen requirement is waived by EPA or legislation, not
only will MTBE use decline, but so, likely, would demand for ethanol. Thus, Members of
Congress and Senators from corn states have taken a keen interest in MTBE legislation.
Both H.R. 6 and S. 2095 contained numerous MTBE and ethanol provisions in Title
XV. They would have banned the use of MTBE as a fuel additive, except in states that
specifically authorized its use, after December 31, 2014, unless the President determined not
to ban it. The Clean Air Act requirement to use MTBE or other oxygenates in RFG would
have been repealed, 270 days after enactment. In place of this requirement, the bills would
have provided a major stimulus to the use of ethanol: under a renewable fuels standard
(RFS), annual production of gasoline would have been required to contain at least 5 billion
gallons of ethanol or other renewable fuel (about double the current production of ethanol)
by 2012. To prevent backsliding on air quality, the bills required that the reductions in
emissions of toxic substances achieved by RFG be maintained; they authorized $2 billion in
grants to assist merchant MTBE production facilities in converting to the production of other
fuel additives. The bills also authorized funds for MTBE cleanup, and perhaps most
controversially, H.R. 6 would have provided a “safe harbor” from product liability lawsuits
for producers of MTBE, ethanol, and other renewable fuels: product liability lawsuits have
been used to force petroleum and chemical companies to pay for cleanup of ground and
surface water contaminated by releases of fuels containing MTBE. The safe harbor provision
was cited by numerous opponents of H.R. 6 in Senate debate on the conference report. As
a result, S. 2095 dropped it while retaining all of the other MTBE and ethanol provisions.
(For a detailed comparison of the House, Senate, and conference provisions, see CRS Report
RL31912, Renewable Fuels and MTBE: Side-by-Side Comparison of House and Senate
Energy Bills and the Conference Report on H.R. 6. For additional background on the MTBE
issue, see CRS Report 98-290, MTBE in Gasoline: Clean Air and Drinking Water Issues.
For information on ethanol, see CRS Report RL30369, Fuel Ethanol: Background and
Public Policy Issues.)
New Source Review (NSR). The most prominent air quality issue for much of 2003
was whether to modify the Clean Air Act’s New Source Review requirements. EPA
promulgated changes to these rules on December 31, 2002 and October 27, 2003, the net
effect of which will be to allow modification of numerous existing major sources of air
pollution without subjecting them to current emission standards.
The controversy over the NSR process stems from EPA’s application of New Source
Performance Standards to existing stationary sources of air pollution that have been
modified. The Clean Air Act states that new sources (subject to NSR) include modifications
of existing sources as well as plants that are totally new. Industry has generally avoided the
NSR process, however, by claiming that changes to existing sources were “routine
maintenance” rather than modifications. In the 1990s, EPA began reviewing records of
electric utilities, petroleum refineries, and other industries to determine whether the changes
were routine. As a result of these reviews, since late 1999, EPA and the Department of
Justice have filed suit against 17 electric utilities, claiming that they made major
modifications to 64 plants in 16 states, extending their lives and increasing their electric
generating capacity without undergoing required New Source Reviews and without installing
best available pollution controls. With four exceptions, these suits were filed during the
Six of the 17 utilities charged with NSR violations (Tampa Electric, PSEG of New
Jersey, Dominion Resources/Virginia Electric Power, Wisconsin Electric Power, Southern
Indiana Gas and Electric, and South Carolina Public Service Authority/Santee Cooper) have
settled with EPA, agreeing to spend more than $3.5 billion over the next decade on pollution
controls or fuel switching in order to reduce emissions at their affected units. One other
utility (Cinergy) reached agreement in principle four years ago to spend more than $1 billion
to resolve NSR violations, but final settlement negotiations have not been concluded. An
eighth utility, the Tennessee Valley Authority, has announced plans to spend $1.5 billion to
reduce emissions at four of its plants, although not as part of a settlement agreement. Since
July 25, 2000, the Agency also reached 12 agreements with petroleum refiners representing
more than 40% of industry capacity. The refiners agreed to settle potential charges of NSR
violations by paying fines and installing equipment to eliminate 200,000 tons of pollution.
Most of the utilities have not settled with EPA. They and other critics of the Agency’s
enforcement actions claim that EPA reinvented the rules. They contend that a strict
interpretation of what constitutes routine maintenance will prevent them from making
changes that were previously allowed, without a commitment of time and money for permit
reviews and the installation of expensive pollution control equipment. This provides
disincentives for power producers, refiners, and others to expand output at existing facilities,
The first case involving one of the non-settling utilities went to trial in February 2003.
In an August 7, 2003 decision, U.S. District Judge Edmund Sargus found that Ohio Edison
had violated the Clean Air Act 11 times in modifying its W.H. Sammis power plant.
Penalties are to be determined in a separate trial that has been delayed, pending settlement
EPA has promulgated five sets of changes to NSR. The most controversial are new
regulations defining what constitutes routine maintenance, which is exempt from review.
These changes appeared in the Federal Register October 27, 2003. The new regulations
would exempt industrial facilities from undergoing NSR (and thus from installing new
emission controls) if they are replacing safety, reliability, and efficiency rated components
with new, functionally equivalent equipment, and if the cost of the replacement components
is less than 20% of the replacement value of the process unit. Using this benchmark, few,
if any, plant modifications would trigger new pollution controls.
These changes are highly controversial. The Administration and its supporters have
characterized them as a streamlining or improvement of the program; others see them as
permanently “grandfathering” older, more polluting facilities from ever having to meet the
clean air standards required of newer plants. On the day the first set of changes were
promulgated (December 31, 2002), nine Northeastern states filed suit to overturn them. In
addition, 14 states and numerous municipalities have filed suit to block the “routine
maintenance” portion of the rule. This portion of the rule was stayed by the U.S. Court of
Appeals for the D.C. Circuit, December 24, 2003.
Implementation of the changes also raises questions about the Agency’s ongoing NSR
enforcement actions. While the Agency stated in the new rule that “we do not intend our
actions today to create retroactive applicability for today’s rule,” continued pursuit of the
enforcement actions filed during the Clinton Administration would create a double standard
for utilities, with one set of rules applicable to those utilities unlucky enough to have been
cited for violations prior to promulgation of the new rule, and a different standard applicable
afterwards. Despite earlier Agency denials that the rule would affect ongoing investigations,
in early November 2003, EPA’s enforcement chief, J.P. Suarez, and another EPA official
were reported to have indicated that the Agency would drop enforcement actions against 47
facilities that had already received notices of violation, and would drop investigations of
possible violations at an additional 70 power companies. Agency staff who were involved
in the enforcement actions argue the prospect of an NSR rollback caused utilities already
charged with violations to withdraw from settlement negotiations over the pending lawsuits,
delaying emission reductions that could have been achieved in the near future. (For
additional information, see CRS Report RS21608, Clean Air and New Source Review:
Defining Routine Maintenance, and CRS Report RL31757, Clean Air: New Source Review
Policies and Proposals.)
On January 22, 2003, the Senate narrowly defeated an amendment offered by Senator
Edwards (S.Amdt. 67 to H.J.Res. 2) that would have delayed implementation of changes to
the NSR requirements for six months pending a study by the National Academy of Sciences.
The Senate approved a separate amendment offered by Senator Inhofe (S.Amdt. 86) directing
NAS to conduct such a study, but not delaying implementation of the standards. The Inhofe
amendment was enacted as Section 356 of the FY2003 Omnibus Appropriations bill (P.L.
108-7). The study began in May 2004, with an expected completion date of December 2005.
Besides the ongoing NAS study, on April 21, 2003, the National Academy of Public
Administration released a report commissioned by Congress that made sweeping
recommendations to modify NSR. The study panel recommended that Congress end the
“grandfathering” of major air emission sources, by requiring all major sources that have not
obtained an NSR permit since 1977 to install Best Available Control Technology or Lowest
Achievable Emissions Rate control equipment. In the interim, the NAPA panel concluded,
EPA and the Department of Justice should continue to enforce NSR vigorously, especially
for changes at existing facilities.
Clear Skies / Multi-Pollutant Legislation. In addition to its proposed and
promulgated regulatory changes in NSR, the Administration has asked Congress to modify
Clean Air Act requirements for power plants by enacting “Clear Skies” or “multi-pollutant”
legislation. A number of bills were introduced in the 108th Congress, in either three- or fourpollutant versions. The three-pollutant bills would have set standards for sulfur dioxide,
nitrogen oxides, and mercury. The four-pollutant bills added carbon dioxide to the mix.
Such legislation, it is argued — whether in three- or four-pollutant form — would both
reduce emissions and encourage investment in new plants by providing certainty regarding
future regulatory requirements. In some proposed bills, the new requirements would replace
numerous existing regulatory programs, including NSR, New Source Performance Standards,
Prevention of Significant Deterioration, Lowest Achievable Emission Rate standards, Best
Available Retrofit Technology, and regulations under development to control mercury
emissions from electric utilities.
The number of prospective regulations on power plant emissions has suggested to many
in industry, environmental groups, Congress, and the Administration that the time is ripe for
such comprehensive legislation. The key questions are how stringent the controls should be,
and whether carbon dioxide (CO2) will be among the emissions subject to controls.
Regarding the stringency issue, bills introduced in the 108th Congress would have
required reduction of NOx emissions to 1.5 or 1.7 million tons per year (a 70%-80%
reduction from 1998 levels) and reduction of sulfur dioxide emissions to 2.23-3.0 million
tons per year (also a reduction of 70%-80% versus 1998). Regarding mercury, the bills
would have either required EPA to determine the level of reductions, or required reductions
of 70%-90% from current levels of emissions (from 48 to 5, 10, or 15 tons annually,
depending on the bill). In the most stringent of the bills (Senator Jeffords’ S. 366 and
Representative Waxman’s H.R. 2042), these reductions would have taken place by 2008 or
2009. Four of the bills (Senator Jeffords’, Representative Waxman’s, Senator Carper’s S.
843, and Representative Bass’s H.R. 3093) would also have set caps on CO2 emissions, at
the level emitted in 1990 or 2000. (For additional information and a detailed comparison of
the legislative proposals, see CRS Report RL31779, Air Quality: Multi-Pollutant Legislation
in the 108th Congress and CRS Report RL31881, Mercury Emissions to the Air: Regulatory
and Legislative Proposals.)
The Administration’s “Clear Skies” bill (H.R. 999/S. 485) and a variant of it introduced
later by Senator Inhofe (S. 1844) envisioned less stringent standards than those in the other
bills, phased in over a much longer period of time. For NOx, the Administration would have
reduced emissions to 1.7 million tons per year by 2018, with an intermediate limit of 2.1
million tons in 2008. For sulfur dioxide, the limit would have been 3.0 million tons annually
in 2018, with an intermediate limit of 4.5 million tons in 2010. For mercury, the limit would
have been 26 tons per year in 2010, declining to 15 tons in 2018. (The Inhofe bill changed
the interim mercury limit to 34 tons.) “Clear Skies” and most of the other bills envision a
system like that used in the acid rain program, where national or regional caps on emissions
are implemented through a system of tradeable allowances.
The Administration opposes controls on CO2, viewing them as a step towards
implementing the Kyoto Protocol to the United Nations Framework Convention on Climate
Change, which it opposes. The absence of CO2 from the mix leads to different strategies for
achieving compliance, preserving more of a market for coal, and lessening the degree to
which power producers might switch to natural gas or renewable fuels as a compliance
Clear Skies and other multipollutant bills were not taken up by either the House or the
Senate. The House, with its larger Republican majority and more formal rules, could
presumably have passed Clear Skies if the leadership decided to make it a priority. In the
Senate, however, Clear Skies did not enjoy a majority in the Environment and Public Works
Committee, to which the bill and other multipollutant bills were referred. Faced with this
obstacle, some suggested that the Senate leadership take the bill directly to the Senate floor,
bypassing the committee; but it would probably have faced determined opposition there, as
well. Thus, the Environment Committee and the Energy and Commerce Committee held
hearings and the Administration continued to say the bill was a high priority, but the
prospects for action in the 108th Congress gradually disappeared. (For additional
information on regulation of electric utility emissions, see CRS Report RS20553, Air Quality
and Electricity: Initiatives to Increase Pollution Controls.)
Mercury from Power Plants. In addition to all the other regulatory and legislative
proposals related to power plants discussed above, in mid-December 2003 EPA proposed
regulations addressing mercury, SO2, and NOx under its existing legislative authority.
(These proposals appeared in the Federal Register January 30, 2004.) The Agency was
required by the terms of a 1998 consent agreement to propose Maximum Achievable Control
Technology (MACT) standards under Section 112 of the Clean Air Act for emissions of
hazardous air pollutants (principally mercury and nickel) from electric power plants by
December 15, 2003. The Agency’s proposal offered two alternatives, one of which would
be chosen after review of public comment and further analysis, and promulgated by March
15, 2005. The first alternative met the Agency’s requirement under the consent agreement
by proposing MACT standards. The standards would apply on a facility-by-facility basis,
and would result in emissions of 34 tons of mercury annually, a reduction of about 30% from
the 1999 level. They would take effect in 2008, three years after promulgation, with possible
The second mercury alternative would use Section 111(d) of the act, a section of the act
rarely used before — and never for hazardous air pollutants. Under this proposal, there
would be a national “cap and trade” system for power plant emissions of mercury. The cap
would be 15 tons of emissions nationwide in 2018 (about a 70% reduction from 1999 levels).
There would also be an intermediate cap in 2010. The Agency did not specify this cap,
except to say that it would be the level of reductions achieved under its Interstate Air Quality
Rule (as explained below). The caps would be implemented through an “allowance” system
similar to that used in the acid rain program, through which utilities could either control the
pollutant directly or purchase excess allowances from other plants that have controlled more
stringently than they were required. Early reductions could be banked for later use, which
the Agency says would result in reductions being achieved sooner than required. If this
happens, however, it would also mean that the full 70% reduction would be delayed well
beyond 2018, as utilities used up their banked allowances rather than installing further
One of the main criticisms of the cap and trade proposal is that it would not address “hot
spots,” areas where mercury emissions and/or concentrations in water bodies are greater than
elsewhere. It would allow a facility to purchase allowances and avoid any emission controls,
if that compliance approach makes the most sense to the plant’s owners and operators. If
plants near hot spots do so, the cap and trade system may not have an impact on mercury
concentrations at the most contaminated sites. By contrast, a MACT standard requires
reductions at all plants, and would therefore be expected to improve conditions at hot spots.
The Section 111 mercury proposal mirrors the approach of Clear Skies, as does EPA’s
simultaneous proposal to regulate emissions of SO2, and NOx from power plants in 29
eastern states and the District of Columbia. This proposal (the Interstate Air Quality Rule,
IAQR, or Clean Air Interstate Rule) is designed to reduce interstate transport of fine
particulates (PM2.5) and ozone in order to facilitate attainment of the new PM2.5 and ozone
standards. Like the mercury proposal, the IAQR would establish a cap and trade program,
with caps in 2010 and 2015.
Many argue that the mercury regulations should be more stringent or implemented more
quickly. These arguments and EPA’s counterarguments rest on assumptions concerning the
availability of control technologies. Controlling SO2, NOx, and mercury simultaneously, as
the Agency prefers, would allow utilities to maximize “co-benefits” of emission controls.
Controls such as scrubbers and fabric filters, both of which are widely used today to control
SO2 and particulates, have the side effect (or co-benefit) of reducing mercury emissions to
some extent. EPA has attempted to calibrate the required SO2 and mercury standards to
substantially reduce the costs of compliance. In fact, under EPA’s preferred (cap and trade)
mercury proposal, the 2010 mercury emission standard would be set at the level of these cobenefits. Thus, no controls would be required to specifically address mercury emissions until
2018, and the costs specific to controlling mercury before then would be zero. The Agency’s
MACT alternative, which would take effect in early 2008, makes the same technology
assumptions. It sets a limit of 34 tons of mercury emissions, a reduction of only 29%
compared to 1999 levels (and probably less if compared to current emissions).
Besides citing the cost advantage of relying on co-benefits, EPA claims that technology
specifically designed to control mercury emissions (such as activated carbon injection, ACI)
would not be generally available until after 2010. This assertion is widely disputed. ACI and
fabric filters have been in use on municipal waste and medical waste incinerators for nearly
a decade, and have been successfully demonstrated on at least four coal-fired power plants.
Manufacturers of pollution controls and many others maintain that, if the Agency required
the use of ACI and fabric filters at power plants, reductions in mercury emissions as great
as 90% could be achieved at reasonable cost in the immediate future.
The Agency can take cost into consideration under the MACT rules, and cost to electric
utilities appears to have been a determining factor in EPA’s analysis. But calculations of
overall societal costs seem to support the imposition of a more stringent standard. The
Agency projects MACT compliance costs at $945 million per year, versus quantifiable
annual benefits of more than $15 billion (a 16 to 1 advantage). The IAQR would achieve
greater reductions of mercury and have a benefit-cost ratio of 21 to 1. If minimizing costs
to society is the criterion, a more stringent standard would better achieve that end.
In addition to the arguments over technology availability and cost, it is unclear whether
EPA has legislative authority to establish a cap and trade program for mercury: many argue
that the Agency is required by the statute to impose MACT standards on each individual
plant once it has decided to control mercury emissions. Questions have also arisen regarding
the role of industry lobbyists in crafting portions of the EPA proposal. For many of these
reasons, 45 Senators wrote EPA Administrator Leavitt at the beginning of April 2004 to
request that he withdraw the mercury proposal and begin over. In June, 178 House members
wrote Leavitt that they hoped further review “will lead to a stronger final rule.” If
promulgated in a form similar to the Agency’s proposal, it appears likely the rule will be
subject to court challenge. (For additional information on the mercury and IAQR proposals,
see CRS Report RL31881, Mercury Emissions to the Air: Regulatory and Legislative
Proposals, and CRS Report RL32273, Air Quality: EPA’s Proposed Interstate Air Quality
Conformity of Transportation Plans and SIPs. A sixth clean air issue
considered in the 108th Congress was the conformity of metropolitan area transportation
plans with the Clean Air Act. Under the act, areas that have not attained one or more of the
six National Ambient Air Quality Standards must develop State Implementation Plans (SIPs)
demonstrating how they will reach attainment. At least 124 areas with a combined
population in excess of 159 million are subject to the SIP requirements. Section 176 of the
Clean Air Act prohibits federal agencies from funding projects in these areas unless they
“conform” to the SIPs. Specifically, projects must not “cause or contribute to any new
violation of any standard,” “increase the frequency or severity of any existing violation,” or
“delay timely attainment of any standard.” Because new highways generally lead to an
increase in vehicle miles traveled and related emissions, both the statute and regulations
require that an area’s Transportation Improvement Program (TIP), which identifies major
highway and transit projects an area will undertake, demonstrate conformity each time it is
revised (i.e., at least every two years). Highway and transit projects in most nonattainment
areas cannot receive federal funds unless they are part of a conforming TIP.
The impact of conformity requirements is expected to grow in the next few years for
several reasons. The growth of emissions from SUVs and other light trucks and greater than
expected increases in vehicle miles traveled have both made it more difficult to demonstrate
conformity; recent court decisions have tightened the conformity rules; and the
implementation of more stringent air quality standards for both ozone and fine particulates
in 2004 means that additional areas are subject to conformity. Thus, numerous metropolitan
areas could face a temporary suspension of highway and transit funds unless they impose
sufficient reductions in vehicle, industrial, or other emissions. In a 2003 report, the
Government Accountability Office (GAO) found that, over the preceding six years, only five
metropolitan areas had to change transportation plans in order to resolve a conformity lapse;
but about one-third of local transportation planners surveyed expected to have difficulty
demonstrating conformity in the future. (See U.S. GAO, Environmental Protection: Federal
Planning Requirements for Transportation and Air Quality Protection Could Potentially Be
More Efficient and Better Linked, April 2003.)
The Clean Air Act provides no authority for waivers of conformity, and the only grace
period allowed is for one year following an area’s initial designation as nonattainment. Only
a limited set of exempt projects (mostly safety-related or replacement and repair of existing
transit facilities) can be funded in lapsed areas: the rules do not even allow funding of new
projects that might reduce emissions, such as new transit lines. These limitations are among
the issues of concern. In addition, many have raised concerns about a mismatch between the
SIP, TIP, and long range transportation planning cycles, and have called for less frequent, but
better coordinated demonstrations of conformity.
In the 108th Congress, conformity provisions were contained in S. 1072, the surface
transportation bill passed by the Senate February 12, 2004, and H.R. 3550, the House version
that passed April 2, 2004. The Senate bill would have required less frequent conformity
demonstrations (at least every four years instead of every two years in current law), and
would have shortened the planning horizon over which conformity must be demonstrated to
10 years in most cases, instead of the current 20 years. The House version of the bill was
similar, but it would have required that the local air pollution control agency agree if the
planning horizon were to be shortened. The House bill also would have established a 12month grace period following a failure to demonstrate conformity before a lapse would be
declared. Conferees began meeting to reconcile differences in the House and Senate bills on
June 14, but did not report a bill. (For additional information, see CRS Report RL32106,
Transportation Conformity Under the Clean Air Act: In Need of Reform?)
Small Engines. Section 209 of the Clean Air Act allows California to adopt and
enforce emission standards for some nonroad engines and vehicles, a category including such
equipment as lawnmowers, chain saws, leaf blowers, and string trimmers. It also permits
other states that contain nonattainment or maintenance areas for any of the National Ambient
Air Quality Standards to adopt the California standards. Beginning in 1990, California has
used this authority to set emission requirements for lawn and garden equipment, as well as
other nonroad engines. California served as a model for what eventually became national
standards for new small engines. On September 25, 2003, the California Air Resources
Board (CARB) adopted “Tier 3” standards that would require further emission reductions
from new small engines, beginning in 2007.
Manufacturers of the equipment raised several objections to the new standards,
including safety issues (related to heat generated by catalytic converters), increased cost, and
the potential impacts if other states adopt California standards. One manufacturer, Briggs
and Stratton, stated that if the standards were implemented, it would be forced to move
production facilities abroad, with the potential loss of more than 20,000 jobs.
In response to these concerns, on September 5, 2003, the Senate Appropriations
Committee approved a legislative rider to S. 1584, the VA-HUD, Independent Agencies
Appropriation bill that would have amended Section 209 to strip California and other states
of their authority to regulate small engines. A modified amendment was approved by voice
vote in the full Senate on November 12 (S.Amdt. 2156), and the appropriation bill passed
the Senate as H.R. 2861, November 18. The bill then went to a conference on the omnibus
appropriations measure, however, where the amendment was stripped from the bill on
November 19. Opponents of the amendment claimed that the industry arguments were
overstated. They noted that it would deprive California of the ability to reduce emissions and
place in jeopardy $2.5 billion annually in federal highway funds. Objections were also raised
on procedural grounds that the amendment was a legislative provision that did not belong in
an appropriations measure. Instead, the conference report (H.Rept. 108-401), which was
approved by the House December 8, 2003, approved by the Senate January 22, 2004, and
signed by the President January 23, 2004 (P.L. 108-199) would allow California to set such
standards, would prohibit other states from following suit, and would require EPA to
promulgate revised national standards for nonroad engines smaller than 50 horsepower by
December 31, 2005.
(This listing does not include bills whose principal purpose is to address global climate
change. For information on that subject, including a list of bills introduced, see CRS Issue
Brief IB89005, Global Climate Change.)
H.R. 6 (Tauzin) / H.R. 4503 (Barton). Energy Policy Act of 2003/2004. Title XV
amends the Clean Air Act to: remove the oxygen content requirement for RFG; increase
production and use of renewable fuels such as ethanol; ban use of MTBE in motor fuels after
2014 unless the President determines otherwise and except in states where the Governor
authorizes its use; provide a “safe harbor” from lawsuits for producers of renewable fuels and
MTBE; provide assistance for conversion of merchant MTBE production facilities; and
prevent backsliding on emissions of toxic air pollutants from RFG. Section 1443 amends
the Clean Air Act to extend deadlines for ozone nonattainment areas affected by emissions
in upwind areas. Incorporates provisions of H.R. 1644 (Barton), reported April 8, 2003
(H.Rept. 108-65, Part 1, Title IX). H.R. 6 introduced April 7, 2003; referred to Committees
on Energy and Commerce, Science, Ways and Means, Resources, Education and the
Workforce, Transportation and Infrastructure, Financial Services, and Agriculture. Passed
House, 247-175, April 11. Received in the Senate, April 29. Amended by S.Amdt. 1537 and
passed, 84-14, July 31. Conference Report (H.Rept. 108-375) adopted by the House
November 18, 2003. H.R. 4503 (identical to the conference version of H.R. 6) introduced
June 3, 2004. Passed House, 244-178, June 15, 2004.
H.R. 185 (Serrano). Amends the Internal Revenue Code of 1986 to provide a business
credit relating to the use of clean-fuel vehicles by businesses within areas designated as
nonattainment areas under the Clean Air Act. Introduced January 7, 2003; referred to
Committee on Ways and Means
H.R. 203 (Sweeney). Amends the Clean Air Act to reduce emissions of sulfur dioxide,
nitrogen oxides, and mercury from electric powerplants. Introduced January 7, 2003;
referred to Committee on Energy and Commerce.
H.R. 244 (Issa). Amends the Clean Air Act to permit the exclusive application of
California State regulations regarding reformulated gasoline in federal RFG areas within the
State. Introduced January 7, 2003; referred to Committee on Energy and Commerce.
H.R. 427 (Sensenbrenner). Fuel Price Stability Act of 2003. Amends the Clean Air
Act to allow the Governors of Illinois, Indiana, and Wisconsin to permit the sale of
conventional gasoline in a reformulated gasoline area if the Governor finds that reduced
availability of RFG has resulted in, or is likely to result in, a significant price increase in that
area. Introduced January 28, 2003; referred to Committee on Energy and Commerce.
H.R. 673 (K. Brady). Safe Highways and Roads Act of 2003. Repeals the existing
transportation conformity regulations, replacing them with those in effect prior to a March
1999 court decision, and requires EPA to promulgate revised criteria and procedures for
conformity within one year. Introduced February 11, 2003; referred to Committee on Energy
H.R. 837 (C. Peterson). Fuels Security Act of 2003. Amends the Clean Air Act to
ban MTBE from the U.S. fuel supply not later than four years after enactment, to eliminate
the oxygen content require-ment for reformulated gasoline while maintaining reductions in
emissions of air toxics, to increase production and use of renewable fuels such as ethanol to
5 billion gallons per year by 2012, to provide a “safe harbor” from liability resulting from the
use of renewable fuels, to require federal agencies to purchase fuels containing ethanol and
biodiesel if available at competitive prices, and to authorize $400 million for remediation of
MTBE contamination and $750 million in grants for conversion of merchant MTBE
production facilities. Introduced February 13, 2003; referred to Committee on Energy and
H.R. 999 (Barton, by request). Clear Skies Act of 2003. The Administration’s multipollutant legislation for electric utility emissions of sulfur dioxide, nitrogen oxides, and
mercury. Introduced February 27, 2003; referred to Committee on Energy and Commerce.
Hearing, Subcommittee on Energy and Air Quality, July 8, 2003.
H.R. 1020 (P. Ryan). Amends the Clean Air Act requirements relating to gasoline to
prevent future supply shortages and price spikes in the gasoline market by reducing the
proliferation of “boutique fuels.” Introduced February 27, 2003; referred to Committee on
Energy and Commerce.
H.R. 1891 (Paul). Amends the Clean Air Act to prohibit liability for the effects of
emissions resulting from or caused by an act of nature including volcanic eruptions and dust
storms; accident; war; terrorism; or fires that occur beyond a local jurisdiction related to land
clearing, agriculture and ecological restoration and management. Introduced April 30, 2003;
referred to Committee on Energy and Commerce and Committee on the Judiciary.
H.R. 2042 (Waxman). Clean Smokestacks Act of 2003. Amends the Clean Air Act
to reduce emissions of sulfur dioxide, nitrogen oxides, mercury, and carbon dioxide from
electric powerplants. Introduced May 8, 2003; referred to Committee on Energy and
H.R. 2136 (P. King). Amends the Clean Air Act to prohibit the use of MTBE as a
gasoline additive and to repeal the oxygenate requirement for reformulated gasoline, and to
provide funding for the clean up of underground storage tanks. Introduced May 15, 2003;
referred to Committee on Energy and Commerce.
H.R. 2253 (Pombo). Amends the Clean Air Act to require EPA to ban the use of
MTBE in gasoline as soon as practicable and to prohibit any gasoline additive unless it has
been determined (through scientific testing and peer review) not to have any adverse effects
on the public. Introduced May 22, 2003; referred to Committee on Energy and Commerce.
H.R. 2865 (Cardoza). Clean Air Incentive Act of 2003. Amends the Internal Revenue
Code of 1986 to provide a credit for qualified clean-fuel vehicles which are used in serious,
severe, or extreme ozone nonattainment areas. Introduced July 24, 2003; referred to
Committee on Ways and Means.
H.R. 3093 (Bass). Clean Air Planning Act of 2003. House version of S. 843.
Introduced September 16, 2003; referred to Committee on Energy and Commerce.
H.R. 3403 (Radanovich). Amends the Clean Air Act to modify provisions regarding
methyl bromide. Introduced October 29, 2003; referred to Committee on Energy and
H.R. 3550 (Young). Transportation Equity Act: A Legacy for Users. Reauthorizes
highway and transit programs, including the Congestion Mitigation and Air Quality program.
Also modifies the Clean Air Act’s conformity provisions. Introduced November 20, 2003;
referred to Committees on Transportation and Infrastructure, Education and the Workforce,
Energy and Commerce, Judiciary, Resources, and Science. Reported, amended, H.Rept. 108452, March 29, 2004. Passed House 357-65, April 2, 2004.
H.R. 3555 (Moran). Amends the Clean Air Act to prohibit stationary sources located
in ozone nonattainment areas from purchasing nitrogen oxide emission credits under EPA’s
nitrogen oxide trading program without the consent of the State in which the source is
located. Introduced November 20, 2003; referred to Committee on Energy and Commerce.
H.R. 4309 (Hill). Amends the Clean Air Act to delay the designation of certain
counties as nonattainment areas for ozone under the 8-hour ozone standard and to establish
specific requirements for such counties. Introduced May 6, 2004; referred to Committee on
Energy and Commerce.
H.R. 4545 (Blunt). Amends the Clean Air Act to reduce the proliferation of boutique
fuels. Introduced June 14, 2004; referred to Committee on Energy and Commerce.
Considered under suspension of the rules, June 16, 2004. Passage failed, 236-194.
H.R. 4652 (Nussle). Energy Independence Act of 2004. Amends the Clean Air Act to
prohibit the use of MTBE as a fuel additive and to stimulate the use of ethanol. Provides tax
incentives for energy efficiency and renewable fuels. Introduced June 23, 2004; referred to
Committees on Energy and Commerce and on Ways and Means.
H.R. 4774 (Filner). FAIR (Foreign Air Impact Regulation) AIR Act of 2004. Amends
the Clean Air Act to delay the effect of reclassifying certain nonattainment areas adjacent to
an international border. Introduced July 7, 2004; referred to Committee on Energy and
H.R. 5165 (Blunt). Boutique Fuels Reduction Act of 2004. Amends the Clean Air Act
to prohibit EPA from approving additional fuels if such approval would increase the number
of fuels approved in State Implementation Plans. Allows waivers of fuel requirements during
supply emergencies. Introduced September 29, 2004; referred to Committee on Energy and
H.Amdt. 338 to H.R. 2861 (Allen). Amends the VA, HUD, Independent Agencies
Appropriation bill to prohibit EPA from placing a lower statistical value on the lives of older
Americans than the lives of other adults when conducting statistical analyses of the costs and
benefits of Clean Air Act regulations. Offered July 25, 2003; agreed to by voice vote.
S. 366 (Jeffords). Clean Power Act of 2003. Amends the Clean Air Act to reduce
emissions of sulfur dioxide, nitrogen oxides, mercury, and carbon dioxide from electric
powerplants. Introduced February 12, 2003; referred to Committee on Environment and
S. 385 (Daschle). Fuels Security Act of 2003. Amends the Clean Air Act to ban
MTBE from the U.S. fuel supply not later than four years after the date of enactment, to
eliminate the oxygen content requirement for reformulated gasoline while maintaining
reductions in emissions of toxic air pollutants, to increase production and use of renewable
fuels such as ethanol to 5 billion gallons per year by 2012, to provide a “safe harbor” from
liability resulting from the use of renewable fuels, to require federal agencies to purchase
gasoline containing at least 10% ethanol and diesel fuel containing biodiesel provided they
are available at a generally competitive price, to authorize $400 million from the Leaking
Underground Storage Tank Fund for remediation of MTBE contamination, and to authorize
$750 million in grants for conversion of merchant MTBE production facilities. Introduced
February 13, 2003; referred to Committee on Environment and Public Works.
S. 484 (Leahy). Amends the Clean Air Act to establish requirements concerning the
operation of fossil fuel-fired electric utility steam generating units, commercial and industrial
boiler units, solid waste incineration units, medical waste incinerators, hazardous waste
combustors, chlor-alkali plants, and Portland cement plants to reduce emissions of mercury
to the environment. Introduced February 27, 2003; referred to Committee on Environment
and Public Works.
S. 485 (Inhofe, by request). Clear Skies Act of 2003. The Administration’s multipollutant legislation for electric utility emissions of sulfur dioxide, nitrogen oxides, and
mercury. Introduced February 27, 2003; referred to Committee on Environment and Public
S. 791 (Inhofe). Reliable Fuels Act. Amends the Clean Air Act to remove the oxygen
content requirement for RFG, to eliminate MTBE from the U.S. fuel supply except in states
that specifically authorize its use, to increase production and use of renewable fuels such as
ethanol, to provide a “safe harbor” from lawsuits for producers of renewable fuels, and to
prevent backsliding on emissions of toxic air pollutants from RFG. Also amends the Solid
Waste Disposal Act to authorize funding for cleanup of MTBE. Introduced April 3, 2003;
referred to Committee on Environment and Public Works. Reported, with amendments, June
3, 2003 (S.Rept. 108-57). Similar language was added to S. 14 June 5, 2003, by S.Amdt. 850.
S. 843 (Carper). Clean Air Planning Act of 2003. Amends the Clean Air Act to reduce
emissions of sulfur dioxide, nitrogen oxides, mercury, and carbon dioxide from electric
powerplants. Introduced April 9, 2003; referred to Committee on Environment and Public
S. 1052 (Inhofe). Safe, Accountable, Flexible, and Efficient Transportation Equity Act
of 2003. Reauthorizes highway and transit programs, including the Congestion Mitigation
and Air Quality program. Also modifies the Clean Air Act’s conformity provisions.
Introduced May 15, 2003; referred to Committee on Environment and Public Works.
Reported, amended, January 9, 2004 (S.Rept. 108-222). Passed Senate, 76-21, February 12,
S. 1407 (Edwards). Concentrated Livestock Existing Alongside Nature Act. Among
other purposes, amends the Clean Air Act to direct EPA to promulgate national primary
ambient air quality standards for hydrogen sulfide and ammonia as measured at any point on
the property line of a concentrated animal feeding operation (CAFO). Introduced July 15,
2003; referred to Committee on Agriculture, Nutrition, and Forestry.
S. 1844 (Inhofe). Clear Skies Act of 2003. Modifies the Administration’s Clear Skies
bill (S. 485) to raise the interim (2010) cap on mercury emissions, allow one-year extensions
of the emission cap deadlines, and modify the emissions allowance system. Introduced
November 10, 2003; referred to Committee on Environment and Public Works.
S. 2095 (Domenici). Energy Policy Act of 2003. Energy bill similar to H.R. 6 in many
respects, but eliminating some its most controversial provisions. Contains the same clean
air provisions as H.R. 6, but eliminates the “safe harbor” provisions. Introduced February
S.Amdt. 67 (Edwards). Requires a study by the National Academy of Sciences of the
effects of the final rule relating to New Source Review promulgated December 31, 2002, to
determine whether it would result in any increase in air pollution or any adverse effect on
human health. Delays implementation of EPA’s changes to the NSR program for six months
to allow completion of the study. Amendment was not agreed to, by a vote of 46-50. Record
Vote Number 12.
S.Amdt. 86 (Inhofe). Requires a study by the National Academy of Sciences of the
effects of the final rule relating to New Source Review promulgated December 31, 2002, and
requires an interim report to Congress no later than March 3, 2004. Amendment was agreed
to, by a vote of 51-45. Record Vote Number 11. Enacted as Section 356 of H.J.Res. 2 (P.L.
S.Amdt. 850 (Frist). Similar to S. 791. Introduced June 4, 2003. Amendment was
agreed to June 5, 2003, during debate on S. 14, by a vote of 67-29.
S.Amdt. 2156 to H.R. 2861 (Bond). Amends Section 209 of the Clean Air Act to
prohibit states from adopting or enforcing emission standards for engines smaller than 50
horsepower and to require EPA to propose national standards for small engines by December
1, 2004. Amendment was agreed to by voice vote, November 12, 2003.
S.Amdt. 2195 to H.R. 2861 (Durbin). Similar to H.Amdt. 338. Offered November
17, 2003; agreed to by voice vote.