Environmental Protection Issues in the 108th Congress

Environmental Protection Issues in the 108th Congress

Order Code IB10115
CRS Issue Brief for Congress
Received through the CRS Web
Environmental Protection Issues
in the 108th Congress
Updated December 15, 2004
Coordinated by Susan Fletcher and Margaret Isler
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Environmental Protection Agency Appropriations
Clean Air Issues
Clean Water Act
Safe Drinking Water
Leaking Underground Storage Tanks
Superfund and Brownfields
Surface Transportation and Environment
Defense Environmental Cleanup and Other Issues
Alternative Fuels and Advanced Technology Vehicles

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Environmental Protection Issues in the 108th Congress
SUMMARY
This issue brief provides an overview of
to address a number of other key issues, in-
the key environmental protection issues that
cluding leaking underground storage tanks
received attention in the 108th Congress. The
that may contaminate water supplies; security
sections on specific issues reference more
issues related to wastewater treatment and
detailed and extensive CRS reports. (This
chemical facilities; expanding authority for an
issue brief emphasizes pollution-related mat-
EPA ombudsman; environmental concerns in
ters; natural resource management issues are
surface transportation reauthorization legisla-
not included.)
tion; brownfields grants and tax breaks; envi-

ronmental issues in comprehensive energy
Appropriations for the Environmental
legislation; and defense cleanup and military
Protection Agency (EPA) affect many of the
environmental issues. These issues are dis-
programs and issues discussed in this issue
cussed in this report, along with others includ-
brief (e.g., funding for state environmental
ing issues involving the Clean Air Act, Clean
programs, enforcement, water infrastructure
Water Act, Safe Drinking Water Act, and
projects and many others); thus, EPA’s fund-
alternative fuels and vehicles.
ing is an issue of perennial interest. At the
beginning of the second session, Congress
The status of committee and floor action
completed consideration of a consolidated
on environmental legislation as well as bills
appropriations act (P.L. 108-199, H.R. 2673),
enacted into law are shown in Table 1 at the
which provided $8.37 billion for EPA in
end of this issue brief. Bills that received
FY2004.
some congressional action include the confer-
ence report on the energy bill, H.R. 6; the
Later in the session, action was
Water Infrastructure Financing Act, S. 2550;
completed on FY2005 funding. The confer-
the Water Quality Financing Act of 2003,
ence agreement on the Consolidated Appropri-
H.R. 1560; the Underground Storage Tank
ations Act for FY2005 (H.R. 4818, H.Rept.
Compliance Act of 2003, S. 195; the Ombuds-
108-792) includes $8.09 billion for EPA,
man ReauthorizationAct, S. 515; the Brown-
subject to an across-the-board rescission of
fields Redevelopment Enhancement Act, H.R.
0.80%. The Administration requested $7.79
239; the Chemical Facility Security Act, S.
billion, and Congress appropriated $8.37
994; the POPs, LRTAP POPs, and PIC Imple-
billion for FY2004. The most controversial
mentation Act of 2003, S. 1486; the Waste-
issues were the adequacy of funding for fed-
water Treatment Works Security Act of 2003,
eral assistance to states for wastewater and
H.R. 866 and S. 1039; the Economic Develop-
drinking water infrastructure projects, scien-
ment Administration Reauthorization Act,
tific research on human health effects upon
H.R. 2535 and S. 1134; the National Defense
which pollution control standards are based,
Authorization Act for FY2004 (P.L. 108-136);
and cleanup of hazardous waste sites under
and the National Defense Authorization Act
the Superfund program.
for FY2005 (P.L. 108-375). Both defense
authorization bills included environmental
The 108th Congress took action, but in
provisions that were controversial.
most cases did not complete it, on legislation
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On December 8, 2004, the President signed the conference agreement on the
Consolidated Appropriations Act for FY2005 (H.R. 4818, H.Rept. 108-792), which provides
funding for numerous federal agencies, including $8.09 billion for EPA, subject to an across-
the-board rescission of 0.80%. The Administration request for FY2005 was $7.79 billion.
Congress appropriated $8.37 billion for FY2004. The reductions relative to FY2004 that
have received the most attention are those for wastewater infrastructure projects and
scientific research, due to disagreement over the adequacy of funding to meet these needs.
Steady funding is provided for the cleanup of contaminated sites under the Superfund
program, the adequacy of which also was subject to debate.
In addition to funding for EPA, action on bills to authorize and appropriate funding for
defense-related activities was completed in the latter part of the second session of the 108th
Congress. The President signed the Ronald W. Reagan National Defense Authorization Act
for FY2005 (P.L. 108-375) on October 28, 2004. It authorizes funding for military activities,
including cleanup and other environmental activities administered by the Department of
Defense (DOD). It also authorizes funding for the cleanup of former nuclear weapons sites
administered by the Department of Energy (DOE), and provides targeted authority for the
permanent on-site disposal of radioactive tank wastes in South Carolina and Idaho, which
had been controversial. H.R. 4818, noted above, appropriates funding for DOE’s cleanup
activities, including the new waste disposal authority in these two states. Earlier, the
President signed the Military Construction Appropriations Act for FY2005 (P.L. 108-324)
on October 13, 2004, which funds cleanup at base closure sites, and the Department of
Defense Appropriations Act for FY2005 (P.L. 108-287) on August 5, 2004, which funds
cleanup on active military installations and other former military properties.
On October 22, 2004, the President signed H.R. 4520 (P.L. 108-357), the American
Jobs Creation Act. Among other provisions, the act extends and modifies existing tax
incentives for ethanol, establishes tax credits for biodiesel production, expands tax credits
for electricity produced from renewable resources, and encourages brownfield cleanups.
Tax-related provisions encouraging brownfield cleanups were included in the Working
Families Tax Relief Act (P.L. 108-311, H.R. 1308, H.Rept. 108-696), which was signed on
October 4, 2004. On October 30, 2004, the President signed H.R. 4731 (P.L. 108-399),
legislation to reauthorize the National Estuary Program. Table 1 at the end of this issue brief
shows congressional action on environmentally related bills.
BACKGROUND AND ANALYSIS
The 108th Congress acted on a variety of disparate environmental measures; some of
these represented proposals or issues that had been under consideration in the 107th Congress
and earlier. In general, environmental issues were not high on the congressional agenda
relative to other matters in this Congress.
Environmental issues considered by Congress tend to fall into several major categories:
(1) funding issues — whether funding levels are adequate and focused on appropriate
priorities; (2) expanding, renewing, or refocusing specific environment programs; (3)
environmental issues that are important elements of other major areas of concern, such as
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energy, defense, or transportation programs; and more recently, (4) terrorism and infra-
structure protection in areas such as wastewater and chemical facilities.
Bills were passed by one or both houses of Congress to address several topics, including
security at sewage treatment facilities; MTBE contamination of groundwater from leaking
underground storage tanks; brownfields; and defense and environment. Other measures
under consideration included the comprehensive energy bill, which contained provisions
affecting several environmental laws, as well as legislation to reauthorize federal highway
and transit programs (which included environmental concerns).
Other major issues on the environmental protection agenda of the 108th Congress
included consideration of the Administration’s “Clear Skies” proposal concerning emissions
from electric power plants, continuing interest in energy conservation, and legislation
concerning treaties controlling certain persistent pesticide and other pollutants. Also under
consideration were oversight of various programs, including New Source Review regulations
implementing provisions of the Clean Air Act. All of these are discussed in the sections
below. Table 1 at the end of this issue brief provides a summary of action on a wide array
of environmental bills in the 108th Congress.
While the overall authorizations for most environmental protection statutes have
expired, program activities continue as Congress has regularly appropriated funds to
implement these laws; so the fact that authorizations have expired does not seem to be a
significant impetus for legislative activity. In addition, demands for or constraints on
funding programs are likely to continue to stimulate legislative action.
The discussion of the major environmental protection issues below focuses on selected
major issues and activity in the 108th Congress. It is not intended to include comprehensive
coverage of all environmental issues; in particular, it does not address issues involving public
lands and natural resources. For more details on individual issues, see the references in each
section below. For an overview of environmental protection laws, see CRS Report
RL30798, Environmental Laws: Summaries of Statutes Administered by the Environmental
Protection Agency.
Environmental Protection Agency Appropriations
(By David Bearden, Environmental Policy Analyst, 7-2390)

The most controversial issues for the FY2005 budget of the Environmental Protection
Agency (EPA) were the adequacy of funding for (1) federal assistance to states for
wastewater and drinking water infrastructure projects; (2) cleanup of hazardous waste sites
under the Superfund program; and (3) scientific research on human health effects, upon
which pollution control standards are based.
As signed by the President on December 8, 2004, the conference agreement on the
Consolidated Appropriations Act for FY2005 (H.R. 4818, H.Rept. 108-792) provides
funding for numerous federal agencies, including $8.09 billion for EPA, subject to an across-
the-board rescission of 0.80%. The Administration requested $7.79 billion for FY2005, and
Congress appropriated $8.37 billion for FY2004. Amounts discussed below are not
comprehensive, but are line items in the final bill for activities that received considerable
attention. They do not reflect the across-the-board rescission of 0.80%. (For more
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information, see CRS Report RL32441, Environmental Protection Agency: Appropriations
for FY2005.)
The conference agreement includes $1.10 billion for the clean water State Revolving
Fund (SRF) to provide federal assistance for wastewater infrastructure projects, more than
the Administration request of $850 million, but less than the FY2004 appropriation of $1.34
billion. The conference agreement also includes another $850 million for the SRF that
provides federal assistance for drinking water infrastructure projects, the same as the
Administration’s request and nearly the same as the FY2004 appropriation. These SRFs
provide seed monies for state loans to communities for wastewater and drinking water
infrastructure projects. The reduction relative to FY2004 for wastewater infrastructure has
been contentious, as there is disagreement over the adequacy of funding to meet these needs.
Although funding for drinking water infrastructure is close to that for FY2004, some have
advocated that higher funding is needed to meet local needs. In addition to the SRFs, the
conference agreement includes $310 million in earmarked funding for grants to specific
communities for drinking water, wastewater, and storm water infrastructure projects.
Congress appropriated $323 million for FY2004. As in recent fiscal year budget requests,
the Administration did not request any funding for these earmarked projects for FY2005.
The conference agreement includes $750 million for EPA’s scientific research activities
(prior to transfers of $36 million from Superfund ) — more than the Administration request
of $689 million, but less than the FY2004 appropriation of $782 million. Some scientists
had expressed opposition to decreasing funding for scientific research, arguing that critical
areas of knowledge needed for public policy decisions on controlling pollution would be
compromised. The Administration had countered that its requested decrease was due to cost
savings from consolidating and realigning certain research areas, and that it would maintain
research in key areas needed for the development of pollution control regulations.
For the cleanup of hazardous waste sites under the Superfund program, the conference
agreement includes $1.26 billion (prior to transfers of $36 million to scientific research and
$13 million to the Office of Inspector General), the same as the FY2004 appropriation but
less than the Administration’s request of $1.38 billion. Some Members advocated an
increase in funding to ensure protection of human health and the environment, whereas other
Members supported steady funding and argued that the current pace of cleanup is adequate.
The source of funding for the Superfund program has also been an issue. The conference
agreement authorizes the use of general Treasury revenues to entirely support its funding
level, if sufficient funds are not available in the Superfund Trust Fund. This fund was
essentially expended by the end of FY2003, as the taxing authority for it expired in 1995.
Clean Air Issues
(By Jim McCarthy, Specialist in Environmental Policy, 7-7225)
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, as critics contend they
should be more stringent; EPA’s proposal is based on an assertion that technology to achieve
more than a 30% reduction in mercury emissions cannot be implemented until 2018, an
assertion that is widely disputed. (For additional information on this and other clean air
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issues, see CRS Issue Brief IB10107, Clean Air Act Issues in the 108th Congress. For
additional information on mercury, see CRS Report RL31881, Mercury Emissions to the
Air.)
Legislation was also proposed on this 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; some of these would have regulated carbon dioxide in addition
to the other three pollutants.
Controversy has also arisen 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, on February 20, 2003 (P.L.
108-7). The study began in May 2004, with an expected completion date of December 2005.
(For additional information on new source review, see CRS Report RS21608, Clean Air and
New Source Review.)
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 on 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. (For additional information, see CRS Report RL31912, Renewable Fuels and MTBE.)
Clean Water Act
(By Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227)
The Clean Water Act (CWA) is the principal law that governs pollution in the nation’s
lakes, rivers, and coastal waters, and authorizes funds to aid construction of municipal
wastewater treatment plants. Although no comprehensive legislation has been enacted since
1987, bills dealing with specific water quality issues have been enacted, and oversight
hearings on the act and recent Administration water quality initiatives have been held. The
sole Clean Water Act legislation enacted by the 108th Congress was a bill to reauthorize the
National Estuary Program, H.R. 4731 (P.L. 108-399). Throughout this period, Congress has
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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 IB10108, Clean Water Act Issues in the 108th
Congress; for background on the Clean Water Act, see CRS Report RL30030, Clean Water
Act: A Summary of the Law.)
Legislation to authorize funding for clean water infrastructure projects was a focus of
attention in the 108th Congress and is likely to be a prominent topic in the 109th Congress as
well. At issue is how the federal government will assist states and cities in meeting needs
to rebuild, repair, and upgrade wastewater treatment plants, especially in view of costs that
are projected to be as much as $390 billion over the next two decades. On October 7, 2004,
the Senate Environment and Public Works Committee reported legislation to authorize $20
billion over five years for the act’s State Revolving Fund (SRF) program that assists
municipal wastewater treatment projects (S. 2550). In July 2003 a House Transportation and
Infrastructure Committee subcommittee had approved similar legislation (H.R. 1560). Both
bills would add provisions allowing states to offer additional subsidization to disadvantaged
communities and longer loan repayment periods. They differ in a number of respects, such
as how to revise the formula for state-by-state allotment of SRF grants and whether to apply
prevailing wage requirements of the Davis-Bacon Act to projects that receive SRF funding
(in S. 2550 only). (For information, see CRS Report RL32503, Water Infrastructure
Financing Legislation: Comparison of S. 2550 and H.R. 1560.) No further action occurred
on either bill for several reasons, including controversies over the Davis-Bacon Act and
Administration opposition to funding levels in the bills.
Water infrastructure funding also was an issue in the context of budget and
appropriations, because the President’s FY2005 budget request sought $492 million less in
Clean Water Act assistance for FY2005 than Congress provided in FY2004. In final action
on appropriations legislation (H.R. 4818), the House and Senate agreed to provide $1.1
billion for clean water SRF grants ($141 million more than in the President’s budget but
$231 million less than in FY2004) and also provided $402 million for earmarked water
infrastructure projects in specified communities. No final action was taken on other water
quality bills in the 108th Congress, although several did receive some consideration in the
House or Senate, such as legislation to authorize grants for wastewater utilities to assess the
vulnerability of their facilities to possible terrorist attack (H.R. 866/S. 1039) (see Table 1 for
relevant numbers).
Safe Drinking Water
(By Mary Tiemann, Specialist in Environmental Policy, 7-5937)
The Safe Drinking Water Act (SDWA) is the principal federal statute for regulating the
quality of water provided by public water systems. Key issues in the 108th Congress included
the availability of funding for infrastructure projects needed to comply with drinking water
standards, and the contamination of drinking water by specific contaminants, including
methyl tertiary butyl ether (MTBE) and perchlorate (the main ingredient in solid rocket fuel).
(See MTBE discussion in the section below on “Leaking Underground Storage Tanks.”)
Also, high lead levels in Washington DC’s tap water raised questions about the adequacy of,
and compliance with, EPA’s lead rule, and gave rise to a national review to determine
whether there was a more widespread problem. H.R. 4268 and S. 2377 were introduced to
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strengthen lead regulation. (See CRS Report RS21831, Lead in Drinking Water: Washington,
D.C. Issues and Broader Regulatory Implications.)
Several bills addressed drinking water contamination by perchlorate, a chemical that has
been found in ground or surface water in 33 states but is not regulated under SDWA. The
Department of Defense (DOD) Authorization Act for FY2004 (P.L. 108-136) directed the
DOD to provide for health studies of perchlorate in drinking water. The DOD FY2004
Appropriations Act (P.L. 108-87) directed DOD, with EPA, to study perchlorate groundwater
pollution that threatens drinking water and irrigation water supplies in the Southwest. The
National Defense Authorization Act for FY2005 (P.L. 108-375) included a “Sense of
Congress” that DOD should develop a plan for remediating perchlorate contamination
resulting from DOD activities to ensure that DOD can respond quickly once a federal
drinking water standard is established; that DOD should continue remediating sites where
perchlorate contamination poses an imminent and substantial endangerment to human health
and welfare; that it should develop a plan to remediate contamination when the Secretary
determines that the contamination poses a health hazard; and that it should continue to
evaluate sites, even in the absence of a SDWA perchlorate standard. Also, H.R. 2123, H.R.
5344, and S. 502 would have required EPA to issue a drinking water standard for
perchlorate. Data gaps regarding perchlorate’s health effects, occurrence, and treatment have
slowed EPA’s efforts to set a standard. In 2003, EPA, DOD, and other agencies asked the
National Academy of Sciences to review EPA’s draft risk assessment on perchlorate and to
advise EPA on issues related to that assessment. (For more information, see CRS Report
RS21961, Perchlorate Contamination of Drinking Water: Regulatory Issues and Legislative
Actions.)
A perennial issue concerns the ability of water systems to improve infrastructure to
comply with drinking water standards and to ensure the safety of water supplies. The 1996
SDWA amendments created a drinking water state revolving loan fund (DWSRF) program
to help systems finance projects needed to meet SDWA standards and address health risks.
Congress has provided $7.7 billion for this program, including $850 million provided in the
FY2005 omnibus spending bill, H.R. 4818. However, a large funding gap is expected to
grow as systems act to comply with new standards and repair aging infrastructure. Several
water infrastructure funding bills were offered in the 108th Congress. S. 2550, reported by
the Senate Environment and Public Works Committee (S.Rept. 108-386), would have
increased funding for the DWSRF and established a small system grant program. It also
addressed lead contamination and directed the U.S. Geological Survey to conduct a
nationwide assessment of sites contaminated with perchlorate. H.R. 3382 and S. 1432 would
have created a grant program to help smaller communities comply with SDWA standards.
Drinking water security concerns were addressed by the 107th Congress in the
Bioterrorism Preparedness Act of 2002 (P.L. 107-188), which amended SDWA to require
some 9,000 community water systems to conduct vulnerability assessments and prepare
emergency response plans. In the 108th Congress, attention focused on oversight of federal
and industry efforts to improve water security, and on the adequacy of funding to support
such efforts. (For more information, see CRS Report RL31294, Safeguarding the Nation’s
Drinking Water: EPA and Congressional Actions and CRS Issue Brief IB10118, Safe
Drinking Water Act: Implementation and Issues.)
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Leaking Underground Storage Tanks
(By Mary Tiemann, Specialist in Environmental Policy, 7-5937)
In 1984, Congress created a leak prevention, detection, and cleanup program under the
Resource Conservation and Recovery Act to address a nationwide problem of leaking
underground storage tanks (LUSTs) that store petroleum or hazardous chemicals. In 1986,
Congress created the LUST Trust Fund to help the EPA and states cover the costs of
responding to leaking petroleum USTs where tank owners fail to do so, and to oversee
cleanup activities. Much progress has been made in the tank program, but issues remain. One
is that many states have not dedicated, or have lacked, adequate resources to fully enforce
UST regulations. A related issue concerns the presence of methyl tertiary butyl ether (MTBE)
leaks at thousands of LUST sites and in many water supplies. This gasoline additive, used
to reduce air pollution from vehicles, is very water soluble and spreads quickly. Thus, MTBE
leaks are more costly to clean up than conventional gasoline leaks.
In the 108th Congress, various bills addressed these issues; however, action was not
completed on any of them. Three energy bills with UST and MTBE provisions included H.R.
6 (the conference report, H.Rept. 108-375, was passed by the House in November 2003), S.
2095, and H.R. 4503 (passed by the House in June 2004). These bills proposed to strengthen
the leak prevention provisions of the UST regulatory program and broaden the uses of the
LUST Trust Fund. They adopted the language of H.R. 3335, the Underground Storage Tank
Compliance Act of 2003, which was similar to Senate-passed S. 195 (S.Rept. 108-13). The
bills all would have added new tank inspection and operator training requirements;
authorized states to use LUST funds to help tank owners pay cleanup costs in cases of
financial hardship; and allowed LUST funds to be used to enforce leak prevention and
detection requirements. The energy bills and H.R. 3335 would have authorized
appropriations from the Trust Fund of $200 million for each of FY2004 through FY2008 for
remediating tank leaks generally, and another $200 million each year for responding to leaks
containing oxygenated fuel additives (e.g., MTBE and ethanol). H.R. 6, H.R. 4503, and S.
2095 would have phased out MTBE and removed the Clean Air Act’s oxygen content
requirement for reformulated gasoline, which had prompted the increased use of MTBE.
H.R. 6 and H.R. 4503 provided a product liability safe harbor for MTBE and renewable
fuels, while S. 2095 did not. Other bills, including H.R. 1122 and H.R. 2136, also would
have authorized appropriations from the Trust Fund for responding to MTBE leaks. H.R.
3940 and S. 2201 focused on leak prevention by requiring secondary containment for tank
systems installed near water supplies. (See also CRS Report RS21201, Leaking Underground
Storage Tanks: Program Status and Issues.)
Superfund and Brownfields
(By Mark Reisch, Analyst in Environmental Policy, 7-7255)
The Superfund and brownfield programs are the principal federal efforts to clean up
hazardous waste sites. Several provisions were enacted in the 108th Congress. The
brownfields tax incentive, which aids property developers, and which expired on December
31, 2003, was reinstated retroactively for two years (to December 31, 2005) by P.L. 108-311
(H.R. 1308, H.Rept. 108-696), which the President signed on October 4, 2004. The
American Jobs Creation Act (P.L. 108-357, H.R. 4520, H.Rept. 108-755), which the
President signed on October 22, 2004, contains two brownfield provisions. One authorizes
tax-exempt facility bonds for “green building and sustainable design projects” that include
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a brownfield and meet other requirements. The other allows tax-exempt entities to invest in
the cleanup and redevelopment of brownfields without incurring unrelated business income
tax when they sell the property. The Economic Development Administration (EDA)
Reauthorization Act, P.L. 108-373 (S. 1134, S.Rept. 108-382; H.R. 2535, H.Rept. 108-242,
Part 1), which the President signed on October 27, 2004, establishes a demonstration
program for “brightfield” sites (brownfields that are redeveloped using solar energy
technologies), and directs GAO to evaluate EDA’s grants for brownfields that were made
over the last 10 years.
A continuing controversial issue is the financing of Superfund activities. The taxes that
originally fed the Superfund trust fund expired in 1995, and the fund is empty.
Appropriations for Superfund are now entirely from the general fund of the Treasury. Four
efforts in the 108th Congress to reinstate the Superfund taxes or to increase Superfund
funding were defeated. (See CRS Report RL31410, Superfund Taxes or General Revenues:
Future Funding Options for the Superfund Program.)
The comprehensive energy bill, H.R. 6 (conference committee H.Rept. 108-375), would
have authorized the use of mine wastes from the Tar Creek Superfund site in highway
construction projects; the House passed the conference agreement, and the Senate did not.
The House Financial Services Committee reported H.R. 239 (H.Rept. 108-22) on March 5,
2003. It would remove the connection between HUD’s brownfield program and the
department’s Section 108 loan guarantees, making the grants more obtainable by a larger
number of cities, particularly smaller ones.
The Ombudsman Reauthorization Act, S. 515 (S.Rept. 108-50), passed the Senate on
May 21, 2003. It would have provided the EPA ombudsman increased independence and
authority regarding Superfund and brownfields, as well as EPA’s solid waste, leaking
underground storage tank, oil spill, and chemical emergency preparedness and prevention
programs. (Also see CRS Issue Brief IB10114, Brownfields and Superfund Issues in the
108th Congress.)
Surface Transportation and Environment
(By Linda Luther, Environmental Policy Analyst, 7-6852)
During the 108th Congress, the House and Senate passed legislation (H.R. 3550 and S.
1072) to reauthorize surface transportation programs for FY2004-FY2009.1 Conferees were
unable to reach agreement on a final bill before Congress adjourned.
During the reauthorization process, 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 the impact that compliance with environmental requirements can have on
project delivery. As a result of these concerns, both H.R. 3550 and S. 1072 included a
1 Surface transportation programs include federal highway, highway safety, and transit programs
undertaken by the U.S. Department of Transportation’s (DOT’s) Federal Highway Administration
(FHWA) and Federal Transit Administration (FTA).
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variety of environmental provisions. Generally, those provisions would have done one of
the following: authorize funding to eliminate, control, mitigate, or minimize regulated
environmental impacts associated with a surface transportation programs or projects; or
specify procedures required to be undertaken to comply with certain environmental
requirements. In particular, both bills included provisions that would have changed the
procedures DOT would be required to follow to comply with the Clean Air Act and the
National Environmental Policy Act (NEPA). (For information on these issues, see CRS
Report RL32454, Environmental Provisions in Surface Transportation Reauthorization
Legislation Proposed During the 108th Congress, by Linda Luther; CRS Report RL32106,
Transportation Conformity Under the Clean Air Act: In Need of Reform? by James
McCarthy; and CRS Report RL32032, Streamlining Environmental Reviews of Highway and
Transit Projects: Analysis of Legislative Proposals in the 108th Congress, by Linda Luther.)
Authorization legislation for FY1998-FY2003, the Transportation Equity Act for the
21st Century (TEA-21, P.L. 105-178), expired on September 30, 2003. In accordance with
a series of extension bills, all existing surface transportation programs continue to operate
according to provisions of TEA-21 while Congress continues to consider reauthorization
proposals. The most recent extension (P.L. 108-310, H.R. 5183) runs until May 31, 2005.
It is anticipated that reauthorization legislation will be reintroduced early in 2005 and that
environmental provisions similar to those in H.R. 3550 and S. 1072 will be included.
Defense Environmental Cleanup and Other Issues
(By David Bearden, Environmental Policy Analyst, 7-2390)
Several environmental issues associated with military installations and former nuclear
weapons sites received attention in the 108th Congress. Among the most prominent issues
were the adequacy, cost, and pace of environmental cleanup, and whether additional
exemptions from selected provisions of some environmental laws are needed to preserve
military training capabilities. The first session of the 108th Congress enacted several bills
that authorized and appropriated funding for cleanup and other environmental activities
conducted by the Department of Defense (DOD) at military installations, as well as cleanup
at former nuclear weapons sites performed by the Department of Energy (DOE). (See Table
1 for a list of these bills.) In the first session, Congress also approved exemptions from
certain requirements of the Endangered Species Act and the Marine Mammal Protection Act
in the National Defense Authorization Act for FY2004 (P.L. 108-136, H.R. 1588), which
were controversial. (For further discussion, refer to CRS Report RL32183, Defense Cleanup
and Environmental Programs: Authorization and Appropriations for FY2004. )
The second session focused on authorization and appropriation of funding for FY2005.
Several relevant bills received action, including H.R. 4200, H.R. 4613, H.R. 4614, H.R.
4818, H.R. 4837, S. 2400, and S. 2674. (See Table 1.) Among the environmental issues
regarding DOD’s FY2005 request were whether to provide additional environmental
exemptions for military training exercises, as the Administration proposed. These
exemptions would have removed from DOD the responsibility of complying with certain
requirements of the Clean Air Act, Resource Conservation and Recovery Act (RCRA), and
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
DOD’s proposal was controversial among Members of Congress, the states, and
environmental organizations due to concerns about the weakening of environmental
protection and the lack of data to justify the need for the exemptions. None of the above
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defense authorization or appropriations bills for FY2005 contained the Administration’s
requested exemptions, either as proposed or in modified form. (For more information, see
CRS Report RL32537, Defense Cleanup and Environmental Programs: Authorization and
Appropriations for FY2005.)
Another prominent issue in the FY2005 debate was whether to provide DOE with the
authority to classify certain high-level radioactive wastes at former nuclear weapons sites in
a manner that would permit these wastes to be permanently disposed of on-site in the states
of Washington, Idaho, and South Carolina. These wastes are currently stored in underground
tanks. DOE’s preferred disposal method is to seal some of these wastes in the tanks with a
cement “grout.” However, the Nuclear Waste Policy Act requires wastes in these tanks that
are classified as “high-level” to be removed from the tanks and disposed of in a centralized
geologic repository, such as Yucca Mountain. DOE asked for the authority to leave some of
the wastes in the tanks, as a means to lower costs and speed the closure of the tanks.
DOE’s proposal was controversial among Members of Congress, the states, and
environmental organizations due to concern about the possibility of tank wastes leaking and
migrating into the soil and groundwater. Some of the tanks are already known or suspected
to have leaked. After considerable debate, Congress included provisions in Section 3116 of
the Ronald W. Reagan National Defense Authorization Act for FY2005 (P.L. 108-375, H.R.
4200) that provide targeted authority for DOE to grout some of the tank wastes in place as
a cost-saving measure in South Carolina and Idaho, subject to certain criteria, state approval,
monitoring by the Nuclear Regulatory Commission, and appropriations by Congress. This
authority does not apply to the tank wastes at the Hanford site in Washington, some of which
have leaked into the Columbia River. Prior to conference, the Senate had approved similar
authority only for South Carolina, and the House had not approved such authority for any
state. (For more information, see CRS Report RS21988, Radioactive Tank Wastes: Disposal
Authority in the Ronald W. Reagan National Defense Authorization Act for FY2005.)
Alternative Fuels and Advanced Technology Vehicles
(By Brent Yacobucci, Environmental Policy Analyst, 7-9662)
The development of alternative fuels and advanced technology vehicles emerged as a
key issue in the 108th Congress. Advanced technology vehicles, such as gasoline- or
diesel-electric hybrids and fuel cell vehicles, have the potential to significantly increase
passenger-vehicle fuel economy and reduce vehicle emissions. However, mass-production
of such vehicles is currently cost-prohibitive, and many technical and cost barriers are
associated with producing, storing, and delivering these alternative fuels. Therefore, there
is interest in Congress and the Administration to support vehicle and fuel development, and
promote their entry into the marketplace.
The 108th Congress considered comprehensive energy legislation, and the conference
report on H.R. 6 (H.Rept. 108-375) would have authorized increased funding for hydrogen
and fuel cell research, established tax credits for the purchase of hybrids and alternative fuel
vehicles, and promoted biofuels. H.R. 6 stalled in the Senate, and S. 2095 was introduced
in the Senate as an alternative to H.R. 6, but there was no vote on this bill. A House
substitute, H.R. 4503, was passed by the House but was never brought to the floor of the
Senate. A key component of the energy bill was the renewable fuels standard (RFS). All
three versions of the bill would have required the use of 5 billion gallons of renewable fuels
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by 2012. Further, H.R. 6 and H.R. 4503 would have exempted blenders of renewable fuels
and MTBE (another gasoline additive) from defective product liability; S. 2095 did not
contain this exemption. This provision has been highly controversial, and has been cited as
one of the key impediments to passage of the bill.
The 108th Congress also considered reauthorizing the highway authorization bill,
TEA-21 (see above discussion on Environmental Issues and Surface Transportation).
Among other provisions, the House and Senate bills (H.R. 3550 and S. 1072) would have
reauthorized funding for various projects, including advanced technology and alternative fuel
transit buses.
On October 22, 2004, the President signed P.L. 108 -357 ( H.R. 4520), the American
Jobs Creation Act of 2004. Among other provisions, the act eliminates the existing tax
exemption for ethanol-blended gasoline and replaces it with a refundable tax credit. The law
also establishes tax credits for the production and use of biodiesel fuel. (For further
discussion, see CRS Issue Brief IB10128, Alternative Fuels and Vehicles: Issues in
Congress.)
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Table 1. Action on Environmental Legislation in the 108th Congress
Bill Status
Purpose
Energy and Environment / MTBE
P.L. 108-357 (H.R. 4520)
Enacted October 22, 2004
Contains tax credits for electricity from renewable sources, for
American Jobs Creation Act of
ethanol and for biodiesel.
2004
P.L. 108- 357 (S. 1637)
Enacted October 22, 2004
Contains tax provisions from H.R. 6, including incentives for
Jumpstart Our Business
renewable energy, alternative fuels, and petroleum and natural gas
Strength (JOBS) Act
development.
H.R. 6
Passed House April 11, 2003
Among environmental provisions, would have amended the Clean
Energy Policy Act of 2003
(H.Rept. 108-65). Amended and
Air Act’s reformulated gasoline (RFG) program, and included
passed Senate July 31, 2003
provisions for R&D, energy tax incentives, MTBE cleanup,
(with language from H.R. 4,
underground storage tank regulation and established a renewable
107th Cong.). House passed
fuels standard. Provisions would have included “safe harbor”
Conference Report Nov. 18,
from product liability lawsuits for MTBE and renewable fuel
2003
producers, and allowed mine wastes from the Tar Creek
(H.Rept. 108-375).
Superfund site to be used in highway construction.
H.R. 4503
Passed House June 15, 2004
Identical to conference version of H.R. 6. Among environmental
Energy Policy Act of 2004
provisions, would have amended the Clean Air Act’s reformulated
gasoline (RFG) program, and included provisions for R&D,
energy tax incentives, MTBE cleanup, underground storage tank
regulation and would have established a renewable fuels standard.
S. 14
H.R. 6 as amended passed in lieu Energy and environmental provisions included R&D and
Energy Policy Act of 2003
of S. 14 (see above).
production incentives; text from S. 791 incorporated as an
amendment would have banned MTBE in motor fuels, except in
states that specifically authorized its use, and would have
increased production and use of renewable fuels.
S. 195
Passed Senate May 1, 2003
Among other provisions, would have established a renewable fuels
Underground Storage Tank
(S.Rept. 108-13).
standard, banned MTBE, authorized renewable energy programs,
Compliance Act of 2003
and established a greenhouse gas database.
S. 791
Reported by Senate Environment Would have banned MTBE in motor fuels, except in states that
Reliable Fuels Act of 2003
and Public Works Committee
specifically authorized its use, would have addressed MTBE
June 3, 2003 (S.Rept. 108-57).
contamination, and increased production and use of renewable
fuels. Similar provisions incorporated in S. 14, June 5 (S.Amdt.
850), and the Senate version of H.R. 6, July 31, 2003.
S. 2095
Introduced February 11, 2004.
Among environmental provisions, would have amended the Clean
Energy Policy Act of 2003
Taken up on Senate floor for
Air Act’s reformulated gasoline (RFG) program, and included
debate March 5, 2004
provisions for R&D, energy tax incentives, MTBE cleanup,
underground storage tank regulation and would have established a
renewable fuels standard. Did not include “safe harbor”
provisions.
Water Quality
P.L. 108-399 (H.R. 4731)
Enacted October 30, 2004
Amends the Federal Water Pollution Control Act to reauthorize
To amend the Federal Water
the National Estuary Program.
Pollution Control Act to
reauthorize the National
Estuary Program.
H.R. 784
Reported by House
Would have authorized appropriations for sewer overflow control
Water Quality Investment Act Transportation and Infrastructure grants.
of 2003
Committee
Sept. 13, 2004
(H.Rept. 108-675)
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Bill Status
Purpose
H.R. 866, Wastewater
Passed House May 7, 2003
Would have authorized funds for wastewater utilities to conduct
Treatment Works Security Act (H.Rept. 108-33).
vulnerability assessments.
of 2003
H.R. 1560
Approved by House
Would have authorized appropriations for Clean Water Act state
The Water Quality Financing
Transportation and Infrastructure water pollution control revolving funds (SRFs).
Act of 2003
Subcommittee on Water
Resources and Environment July
17, 2003.
H.R. 4470
Passed House
Would have amended the Federal Water Pollution Control Act to
To amend the Federal Water
October 7, 2004
extend the authorization of appropriations for the Lake
Pollution Control Act to
(H.Rept. 108-676)
Pontchartrain Basin Restoration Program for fiscal years 2005 to
extend the authorization of
2010.
appropriations for the Lake
Pontchartrain Basin
Restoration Program from
FY2005 to FY2010.
H.R. 4688
Reported by House
Would have amended the Federal Water Pollution Control Act to
To amend the Federal Water
Transportation and Infrastructure reauthorize the Chesapeake Bay Program.
Pollution Control Act to
Committee
reauthorize the Chesapeake
Sept. 13. 2004
Bay Program.
(H.Rept. 108-677)
S. 1039, Wastewater
Reported by Senate
Would have authorized funds for wastewater utilities to conduct
Treatment Works Security Act Environment and Public Works
vulnerability assessments.
of 2003
Committee May 15, 2003
(S.Rept. 108-149).
S. 2550
Reported by Senate
Would have authorized appropriations to Clean Water Act and
Water Infrastructure Financing Environment and Public Works
Safe Drinking Water Act for State Revolving Loan Funds (SRFs).
Act
Committee October 7, 2004
(S.Rept. 108-386)
Superfund / Brownfields
P.L. 108-311 (H.R. 1308)
Enacted
Reinstates the brownfields tax incentive, which aids property
Working Families Tax Relief
October 4, 2004
developers.
Act
P.L. 108-357 (H.R. 4520)
Enacted October 22, 2004
Authorizes certain tax exempt facility bonds; and allows tax
American Jobs Creation Act
exempt entities to invest in brownfields without incurring
unrelated business income tax when they sell the property.
P.L. 108-373 (S. 1134, H.R.
Enacted October 22, 2004
Among other things, establishes a demonstration program for
2535 )
“brightfields” (brownfields redeveloped using solar energy
Economic Development
technologies), and directs GAO to report on EDA’s grants for
Administration
brownfields.
Reauthorization Act
H.R. 239
Reported by House Financial
Would have made HUD brownfield grants more accessible to
Brownfields Redevelopment
Services Committee March 5,
small communities.
and Enhancement Act
2003 (H.Rept. 108-22).
Environmental Protection Agency
P.L. 108-7 (H.J.Res. 2)
Enacted Feb. 20, 2003
Funds EPA at $8.1 billion in FY2003.
Consolidated (Omnibus)
Appropriations Resolution
FY2003
P.L. 108-199 (H.R. 2673)
Enacted January 23, 2004
Funds EPA at $8.4 billion in FY2004.
Consolidated (Omnibus)
Appropriations Act FY2004
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Bill Status
Purpose
H.R. 2861 VA-HUD
Passed by House July 25, 2003
House version would have funded EPA at $8.0 billion; Senate
Appropriations FY2004
Passed Senate Nov. 18, 2003
version at $8.1 billion.
Included in P.L. 108-199.
H.R. 4818
Enacted December 8, 2004
Provides funding for numerous federal agencies for FY2005,
Consolidated (Omnibus)
including $8.09 billion for EPA, subject to an across-the-board
Appropriations Act for
rescission of .80%.
FY2005
H.R. 5041
Reported by House
House report would have funded EPA at $7.8 billion in FY2005.
VA-HUD Appropriations
Appropriations Committee
FY2005
September 9, 2004
(H.Rept. 108-674)
S. 515, Ombudsman
Passed by Senate
Would have expanded Ombudsman’s authority and independence.
Reauthorization Act
May 21, 2003
(S.Rept. 108-50)
S. 2825 VA - HUD
Reported by Senate
Senate report would have funded EPA at $8.5 billion in FY2005.
Appropriations FY2005
Appropriations Committee
Sept. 21, 2004
(S.Rept. 108-353)
Defense and Environment
P.L. 108-87 (H.R. 2658)
Enacted Sept. 30, 2003
Provides funding for the cleanup of environmental contamination
Department of Defense
on active military installations and Formerly Used Defense Sites
Appropriations Act for
(FUDS), which were decommissioned prior to the base closure
FY2004
rounds that began in 1988. Requires DOD and EPA to conduct a
study of perchlorate groundwater contamination.
P.L. 108-132 ( H.R. 2559)
Enacted Nov. 22, 2003
Provides funding for the cleanup of environmental contamination
Military Construction
at base closure sites. Requires DOD to submit reports on
Appropriations Act FY2004
perchlorate contamination, and cleanup plans for these sites.
P.L. 108-136 (H.R. 1588)
Enacted Nov. 24, 2003.
Among major environmental provisions, authorizes funding for
National Defense
environmental cleanup, provides greater compliance flexibility for
Authorization Act for FY2004
DOD under the Endangered Species Act and Marine Mammal
Protection Act, requires a report on the impact of the Clean Air
Act, Solid Waste Disposal Act, and CERCLA on military
installations, and requires a study of exposure to perchlorate (used
in munitions propellents) on human health.
P.L. 108-137 (H.R. 2754)
Enacted Dec. 1, 2003
Provides funding for the management and cleanup of defense
Energy and Water
nuclear waste.
Development Appropriations
Act for FY2004
P.L. 108-287 (H.R. 4613)
Enacted August 5, 2004
Provides funding for cleanup and other environmental activities at
Department of Defense
active and former military installations. Does not include
Appropriations Act for
exemptions from the Clean Air Act, RCRA, and CERCLA, which
FY2005
DOD requested.
P.L. 108-324 (H.R. 4837)
Enacted October 13, 2004
Provides funding for environmental cleanup at military base
Military Construction
closure sites. Does not include exemptions from the Clean Air
Appropriations Act for
Act, RCRA, and CERCLA, which DOD requested.
FY2005
P.L. 108-375 (H.R. 4200)
Enacted October 28, 2004
Authorizes funding for cleanup and other environmental activities
National Defense
at active, former, and closed military installations, and former
Authorization Act for FY2005
nuclear weapons sites. Does not include exemptions from the
Clean Air Act, RCRA, and CERCLA, which DOD requested.
Provides authority for the permanent on-site disposal of high-level
radioactive wastes in storage tanks in South Carolina and Idaho,
which DOE requested.
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Bill Status
Purpose
H.R. 4614
Passed by House June 25, 2004
Would have appropriated funding for the management of defense
Energy and Water
(H.Rept. 108-554)
nuclear waste and cleanup of former nuclear weapons sites.
Development Appropriations
Would not have provided funding for the permanent on-site
Act for FY2005
disposal of high-level radioactive wastes in storage tanks in
Washington, South Carolina, and Idaho.
H.R. 4818
Enacted December 8, 2004
Provides funding for numerous federal agencies for FY2005,
Consolidated (Omnibus)
including DOE’s cleanup of former nuclear weapons sites and
Appropriations Act for
implementation of tank waste disposal authority provided in P.L.
FY2005
108-375 for South Carolina and Idaho.
S. 2400
Passed by Senate June 23, 2004
Would have authorized funding for cleanup and other
National Defense
(S.Rept. 108-260)
environmental activities at active, former, and closed military
Authorization Act for FY2005 Inserted into H.R. 4200 as a
installations, and former nuclear weapons sites. Did not include
substitute amendment
exemptions from the Clean Air Act, RCRA, and CERCLA, which
Conferees appointed June 24,
DOD requested. Would have included targeted authority for
2004
permanent on-site disposal of certain high-level radioactive wastes
in storage tanks in South Carolina only.
S. 2674
Reported by Senate
Would have appropriated funding for environmental cleanup at
Military Construction
Appropriations Committee July
military base closure sites. Did not include exemptions from the
Appropriations Act for
15, 2004 (S.Rept. 108-309)
Clean Air Act, RCRA, and CERCLA, which DOD requested.
FY2005
Inserted in H.R. 4837 as a
substitute amendment and passed
instead
Transportation and Environment
P.L. 108-310 (H.R.5183)
Enacted Sept. 30, 2004
Extends funding for highway transit and safety programs until
Surface Transportation
May 31, 2005. Previous extensions were enacted under H.R.
Extension Act of 2004,
3087, H.R. 3850, H.R. 4219, H.R. 4635, and H.R. 4916.
Part V
H.R. 3550, Transportation
Passed by House April 2, 2004
Among other provisions, would have amended the Clean Air Act
Equity Act: A Legacy for
(H.Rept. 108-452)
conformity provisions, and specified procedures to perform
Users
environmental reviews for transportation projects under NEPA.
Would have amended the DOT Act of 1966 regarding protection
of historic sites, and specified funding levels for projects intended
to improve air quality and mitigate other environmental impacts.
S. 1072
Passed Senate Feb. 12, 2004
Environmental provisions similar to H.R. 3550. In addition to
Safe, Accountable, Flexible
(S.Rept. 108-222)
historic sites, amendments to the DOT Act of 1966 would have
and Efficient Transportation
applied to publicly owned parks, recreation areas, wildlife and
Equity Act of 2003
waterfowl refuges.
(SAFETEA)
Other
S. 994
Reported by Senate Environment Would have required vulnerability assessments and security plans
Chemical Facilities Security
and Public Works Committee
for facilities handling large quantities of hazardous chemicals.
Act
May 11, 2004 (S.Rept. 108-261)
S. 1486
Reported by the Senate
Would have amended the Toxic Substances Control Act and
POPs, LRTAP POPs, and PIC Environment and Public Works
Federal Insecticide, Fungicide and Rodenticide Act to authorize
Implementation Act of 2003
Committee April 29, 2004
implementation of three international agreements limiting
(S.Rept. 108-256)
manufacture, use, trade and disposal of certain persistent organic
pollutants (POPs).
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