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

the key environmental protection issues that

received attention in the 108th Congress. The

sections on specific issues reference more

detailed and extensive CRS reports. (This

issue brief emphasizes pollution-related matters; natural resource management issues are

not included.)

Appropriations for the Environmental

Protection Agency (EPA) affect many of the

programs and issues discussed in this issue

brief (e.g., funding for state environmental

programs, enforcement, water infrastructure

projects and many others); thus, EPA’s funding is an issue of perennial interest. At the

beginning of the second session, Congress

completed consideration of a consolidated

appropriations act (P.L. 108-199, H.R. 2673),

which provided $8.37 billion for EPA in

FY2004.

Later in the session, action was

completed on FY2005 funding. The conference agreement on the Consolidated Appropriations Act for FY2005 (H.R. 4818, H.Rept.

108-792) includes $8.09 billion for EPA,

subject to an across-the-board rescission of

0.80%. The Administration requested $7.79

billion, and Congress appropriated $8.37

billion for FY2004. The most controversial

issues were the adequacy of funding for federal assistance to states for wastewater and

drinking water infrastructure projects, scientific research on human health effects upon

which pollution control standards are based,

and cleanup of hazardous waste sites under

the Superfund program.

The 108th Congress took action, but in

most cases did not complete it, on legislation

Congressional Research Service

to address a number of other key issues, including leaking underground storage tanks

that may contaminate water supplies; security

issues related to wastewater treatment and

chemical facilities; expanding authority for an

EPA ombudsman; environmental concerns in

surface transportation reauthorization legislation; brownfields grants and tax breaks; environmental issues in comprehensive energy

legislation; and defense cleanup and military

environmental issues. These issues are discussed in this report, along with others including issues involving the Clean Air Act, Clean

Water Act, Safe Drinking Water Act, and

alternative fuels and vehicles.

The status of committee and floor action

on environmental legislation as well as bills

enacted into law are shown in Table 1 at the

end of this issue brief. Bills that received

some congressional action include the conference report on the energy bill, H.R. 6; the

Water Infrastructure Financing Act, S. 2550;

the Water Quality Financing Act of 2003,

H.R. 1560; the Underground Storage Tank

Compliance Act of 2003, S. 195; the Ombudsman ReauthorizationAct, S. 515; the Brownfields Redevelopment Enhancement Act, H.R.

239; the Chemical Facility Security Act, S.

994; the POPs, LRTAP POPs, and PIC Implementation Act of 2003, S. 1486; the Wastewater Treatment Works Security Act of 2003,

H.R. 866 and S. 1039; the Economic Development Administration Reauthorization Act,

H.R. 2535 and S. 1134; the National Defense

Authorization Act for FY2004 (P.L. 108-136);

and the National Defense Authorization Act

for FY2005 (P.L. 108-375). Both defense

authorization bills included environmental

provisions that were controversial.

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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 acrossthe-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 infrastructure 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 acrossthe-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 “multipollutant” 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

21 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.

st

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

American Jobs Creation Act of

2004

Contains tax credits for electricity from renewable sources, for

ethanol and for biodiesel.

P.L. 108- 357 (S. 1637)

Jumpstart Our Business

Strength (JOBS) Act

Enacted October 22, 2004

Contains tax provisions from H.R. 6, including incentives for

renewable energy, alternative fuels, and petroleum and natural gas

development.

H.R. 6

Energy Policy Act of 2003

Passed House April 11, 2003

(H.Rept. 108-65). Amended and

passed Senate July 31, 2003

(with language from H.R. 4,

107th Cong.). House passed

Conference Report Nov. 18,

2003

(H.Rept. 108-375).

Among environmental 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 established a renewable

fuels standard. Provisions would have included “safe harbor”

from product liability lawsuits for MTBE and renewable fuel

producers, and allowed mine wastes from the Tar Creek

Superfund site to be used in highway construction.

H.R. 4503

Energy Policy Act of 2004

Passed House June 15, 2004

Identical to conference version of H.R. 6. Among environmental

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

Energy Policy Act of 2003

H.R. 6 as amended passed in lieu Energy and environmental provisions included R&D and

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

Underground Storage Tank

Compliance Act of 2003

Passed Senate May 1, 2003

(S.Rept. 108-13).

S. 791

Reliable Fuels Act of 2003

Reported by Senate Environment Would have banned MTBE in motor fuels, except in states that

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

Energy Policy Act of 2003

Introduced February 11, 2004.

Taken up on Senate floor for

debate March 5, 2004

Among environmental 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. Did not include “safe harbor”

provisions.

Enacted October 30, 2004

Amends the Federal Water Pollution Control Act to reauthorize

the National Estuary Program.

Among other provisions, would have established a renewable fuels

standard, banned MTBE, authorized renewable energy programs,

and established a greenhouse gas database.

Water Quality

P.L. 108-399 (H.R. 4731)

To amend the Federal Water

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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Status

Purpose

H.R. 866, Wastewater

Passed House May 7, 2003

Treatment Works Security Act (H.Rept. 108-33).

of 2003

Would have authorized funds for wastewater utilities to conduct

vulnerability assessments.

H.R. 1560

The Water Quality Financing

Act of 2003

Approved by House

Would have authorized appropriations for Clean Water Act state

Transportation and Infrastructure water pollution control revolving funds (SRFs).

Subcommittee on Water

Resources and Environment July

17, 2003.

H.R. 4470

To amend the Federal Water

Pollution Control Act to

extend the authorization of

appropriations for the Lake

Pontchartrain Basin

Restoration Program from

FY2005 to FY2010.

Passed House

October 7, 2004

(H.Rept. 108-676)

H.R. 4688

To amend the Federal Water

Pollution Control Act to

reauthorize the Chesapeake

Bay Program.

Reported by House

Would have amended the Federal Water Pollution Control Act to

Transportation and Infrastructure reauthorize the Chesapeake Bay Program.

Committee

Sept. 13. 2004

(H.Rept. 108-677)

Would have amended the Federal Water Pollution Control Act to

extend the authorization of appropriations for the Lake

Pontchartrain Basin Restoration Program for fiscal years 2005 to

2010.

S. 1039, Wastewater

Reported by Senate

Treatment Works Security Act Environment and Public Works

of 2003

Committee May 15, 2003

(S.Rept. 108-149).

Would have authorized funds for wastewater utilities to conduct

vulnerability assessments.

S. 2550

Reported by Senate

Water Infrastructure Financing Environment and Public Works

Act

Committee October 7, 2004

(S.Rept. 108-386)

Would have authorized appropriations to Clean Water Act and

Safe Drinking Water Act for State Revolving Loan Funds (SRFs).

Superfund / Brownfields

P.L. 108-311 (H.R. 1308)

Working Families Tax Relief

Act

Enacted

October 4, 2004

Reinstates the brownfields tax incentive, which aids property

developers.

P.L. 108-357 (H.R. 4520)

American Jobs Creation Act

Enacted October 22, 2004

Authorizes certain tax exempt facility bonds; and allows tax

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.

2535 )

Economic Development

Administration

Reauthorization Act

Enacted October 22, 2004

Among other things, establishes a demonstration program for

“brightfields” (brownfields redeveloped using solar energy

technologies), and directs GAO to report on EDA’s grants for

brownfields.

H.R. 239

Brownfields Redevelopment

and Enhancement Act

Reported by House Financial

Services Committee March 5,

2003 (H.Rept. 108-22).

Would have made HUD brownfield grants more accessible to

small communities.

Environmental Protection Agency

P.L. 108-7 (H.J.Res. 2)

Consolidated (Omnibus)

Appropriations Resolution

FY2003

Enacted Feb. 20, 2003

Funds EPA at $8.1 billion in FY2003.

P.L. 108-199 (H.R. 2673)

Consolidated (Omnibus)

Appropriations Act FY2004

Enacted January 23, 2004

Funds EPA at $8.4 billion in FY2004.

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Bill

Status

Purpose

H.R. 2861 VA-HUD

Appropriations FY2004

Passed by House July 25, 2003

Passed Senate Nov. 18, 2003

Included in P.L. 108-199.

House version would have funded EPA at $8.0 billion; Senate

version at $8.1 billion.

H.R. 4818

Consolidated (Omnibus)

Appropriations Act for

FY2005

Enacted December 8, 2004

Provides funding for numerous federal agencies for FY2005,

including $8.09 billion for EPA, subject to an across-the-board

rescission of .80%.

H.R. 5041

VA-HUD Appropriations

FY2005

Reported by House

Appropriations Committee

September 9, 2004

(H.Rept. 108-674)

House report would have funded EPA at $7.8 billion in FY2005.

S. 515, Ombudsman

Reauthorization Act

Passed by Senate

May 21, 2003

(S.Rept. 108-50)

Would have expanded Ombudsman’s authority and independence.

S. 2825 VA - HUD

Appropriations FY2005

Reported by Senate

Appropriations Committee

Sept. 21, 2004

(S.Rept. 108-353)

Senate report would have funded EPA at $8.5 billion in FY2005.

P.L. 108-87 (H.R. 2658)

Department of Defense

Appropriations Act for

FY2004

Enacted Sept. 30, 2003

Provides funding for the cleanup of environmental contamination

on active military installations and Formerly Used Defense Sites

(FUDS), which were decommissioned prior to the base closure

rounds that began in 1988. Requires DOD and EPA to conduct a

study of perchlorate groundwater contamination.

P.L. 108-132 ( H.R. 2559)

Military Construction

Appropriations Act FY2004

Enacted Nov. 22, 2003

Provides funding for the cleanup of environmental contamination

at base closure sites. Requires DOD to submit reports on

perchlorate contamination, and cleanup plans for these sites.

P.L. 108-136 (H.R. 1588)

Enacted Nov. 24, 2003.

National Defense

Authorization Act for FY2004

Among major environmental provisions, authorizes funding for

environmental cleanup, provides greater compliance flexibility for

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)

Energy and Water

Development Appropriations

Act for FY2004

Enacted Dec. 1, 2003

Provides funding for the management and cleanup of defense

nuclear waste.

P.L. 108-287 (H.R. 4613)

Department of Defense

Appropriations Act for

FY2005

Enacted August 5, 2004

Provides funding for cleanup and other environmental activities at

active and former military installations. Does not include

exemptions from the Clean Air Act, RCRA, and CERCLA, which

DOD requested.

P.L. 108-324 (H.R. 4837)

Military Construction

Appropriations Act for

FY2005

Enacted October 13, 2004

Provides funding for environmental cleanup at military base

closure sites. Does not include exemptions from the Clean Air

Act, RCRA, and CERCLA, which DOD requested.

Defense and Environment

P.L. 108-375 (H.R. 4200)

Enacted October 28, 2004

National Defense

Authorization Act for FY2005

Authorizes funding for cleanup and other environmental activities

at active, former, and closed military installations, and former

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

Energy and Water

Development Appropriations

Act for FY2005

Passed by House June 25, 2004

(H.Rept. 108-554)

Would have appropriated funding for the management of defense

nuclear waste and cleanup of former nuclear weapons sites.

Would not have provided funding for the permanent on-site

disposal of high-level radioactive wastes in storage tanks in

Washington, South Carolina, and Idaho.

H.R. 4818

Consolidated (Omnibus)

Appropriations Act for

FY2005

Enacted December 8, 2004

Provides funding for numerous federal agencies for FY2005,

including DOE’s cleanup of former nuclear weapons sites and

implementation of tank waste disposal authority provided in P.L.

108-375 for South Carolina and Idaho.

S. 2400

Passed by Senate June 23, 2004

National Defense

(S.Rept. 108-260)

Authorization Act for FY2005 Inserted into H.R. 4200 as a

substitute amendment

Conferees appointed June 24,

2004

S. 2674

Military Construction

Appropriations Act for

FY2005

Would have authorized funding for cleanup and other

environmental activities at active, former, and closed military

installations, and former nuclear weapons sites. Did not include

exemptions from the Clean Air Act, RCRA, and CERCLA, which

DOD requested. Would have included targeted authority for

permanent on-site disposal of certain high-level radioactive wastes

in storage tanks in South Carolina only.

Would have appropriated funding for environmental cleanup at

Reported by Senate

Appropriations Committee July military base closure sites. Did not include exemptions from the

Clean Air Act, RCRA, and CERCLA, which DOD requested.

15, 2004 (S.Rept. 108-309)

Inserted in H.R. 4837 as a

substitute amendment and passed

instead

Transportation and Environment

P.L. 108-310 (H.R.5183)

Surface Transportation

Extension Act of 2004,

Part V

Enacted Sept. 30, 2004

Extends funding for highway transit and safety programs until

May 31, 2005. Previous extensions were enacted under H.R.

3087, H.R. 3850, H.R. 4219, H.R. 4635, and H.R. 4916.

H.R. 3550, Transportation

Equity Act: A Legacy for

Users

Passed by House April 2, 2004

(H.Rept. 108-452)

Among other provisions, would have amended the Clean Air Act

conformity provisions, and specified procedures to perform

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

Safe, Accountable, Flexible

and Efficient Transportation

Equity Act of 2003

(SAFETEA)

Passed Senate Feb. 12, 2004

(S.Rept. 108-222)

Environmental provisions similar to H.R. 3550. In addition to

historic sites, amendments to the DOT Act of 1966 would have

applied to publicly owned parks, recreation areas, wildlife and

waterfowl refuges.

Other

S. 994

Chemical Facilities Security

Act

Reported by Senate Environment Would have required vulnerability assessments and security plans

and Public Works Committee

for facilities handling large quantities of hazardous chemicals.

May 11, 2004 (S.Rept. 108-261)

S. 1486

Reported by the Senate

POPs, LRTAP POPs, and PIC Environment and Public Works

Implementation Act of 2003 Committee April 29, 2004

(S.Rept. 108-256)

Would have amended the Toxic Substances Control Act and

Federal Insecticide, Fungicide and Rodenticide Act to authorize

implementation of three international agreements limiting

manufacture, use, trade and disposal of certain persistent organic

pollutants (POPs).

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