Renewable Fuels and MTBE: A Comparison of Provisions in the Energy Policy Act of 2005 (P.L. 109-58 and H.R. 6)

Order Code RL32865

CRS Report for Congress

Received through the CRS Web

Renewable Fuels and MTBE:

A Comparison of Provisions in the Energy Policy

Act of 2005 (P.L. 109-58 and H.R. 6)

Updated October 3, 2006

Brent D. Yacobucci, Mary Tiemann, and James E. McCarthy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Renewable Fuels and MTBE:

A Comparison of Provisions in the Energy Policy Act of

2005 (P.L. 109-58 and H.R. 6)

Summary

In the Energy Policy Act of 2005 (P.L. 109-58, H.R. 6), Congress established

a requirement for the use of renewable fuels and revised Clean Air Act and

underground storage tank regulatory requirements to address public health and

environmental concerns associated with the use of fuels and fuel additives, especially

methyl tertiary butyl ether (MTBE). Much contentious debate centered on the issue

of how to address water quality problems associated with MTBE use while

preserving air quality benefits of reformulated gasoline and, at the same time,

promoting the use of renewable fuels (especially ethanol). This report compares the

renewable fuel and MTBE provisions in the House and Senate versions of H.R. 6

with the provisions Congress ultimately agreed to in Title XV of P.L. 109-58.

Among the key fuel-related provisions, the Energy Policy Act of 2005 repealed

the Clean Air Act requirement that reformulated gasoline (RFG) contain at least 2%

oxygen — a requirement that led refiners and importers to use MTBE and, to a lesser

extent, ethanol in their RFG. This provision was advanced by both the House and

Senate, largely in response to drinking water contamination problems associated with

the use of MTBE.

In place of this requirement, the Act established a Renewable Fuel Standard

(RFS) requiring the use of 7.5 billion gallons of renewable fuel by 2012. This

requirement is being met primarily through the use of ethanol. Also consistent with

the House and Senate bills, P.L. 109-58 requires that the reductions in emissions of

toxic substances achieved by RFG be maintained and allows ethanol credit trading

among refiners and importers of fuels.

Major issues that the various versions of the bill treated differently include

whether to grant MTBE producers a safe harbor from product liability lawsuits (the

House version did so, whereas the Senate version and the enacted version did not);

whether to phase out continued use of MTBE in motor fuels (both the House and

Senate versions would have done so, with exceptions, whereas the enacted bill does

not); and whether to require manufacturers of fuels and fuel additives to evaluate

their impacts on public health and the environment (the Senate version and the

enacted version did so, the House version did not).

The Energy Policy Act also amends the underground storage tank (UST)

regulatory program to specifically authorize EPA and states to use funds appropriated

from the Leaking Underground Storage Tank (LUST) Trust Fund to address fuel

leaks involving MTBE and other oxygenated fuel additives. The law also expands

the leak prevention provisions of the UST program and imposes new requirements

on states, EPA, and tank owners.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Side-by-Side Comparison of Fuels and MTBE Provisions in H.R. 6 and

P.L. 109-58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Renewable Fuels and MTBE: A Comparison

of Provisions in the Energy Policy Act of

2005 (P.L. 109-58 and H.R. 6)

Introduction

Enacted August 8, 2005, the Energy Policy Act of 2005 (P.L. 109-58, H.R. 6)

established a requirement for the use of renewable fuels and revised Clean Air Act

and underground storage tank regulatory requirements to address public health and

environmental concerns associated with the use of fuels and fuel additives, especially

methyl tertiary butyl ether (MTBE). Considerable debate centered on the issue of

how to address drinking water quality problems associated with MTBE use while

preserving air quality benefits of reformulated gasoline and, at the same time,

promoting the use of renewable fuels (especially ethanol).

This report compares provisions concerning renewable fuel (e.g., ethanol) and

the gasoline additive methyl tertiary butyl ether (MTBE) in Title XV of the Energy

Policy Act of 2005 with the provisions in Title XV of the House-passed H.R. 6 and

the provisions in Title II of the Senate-passed H.R. 6.1

Under the Clean Air Act Amendments of 1990, gasoline sold in numerous areas

of the country with poor air quality was required to contain oxygenates — MTBE,

ethanol, or other substances containing oxygen — as a means of improving

combustion and reducing emissions of ozone-forming compounds and carbon

monoxide. The act had two programs that required the use of oxygenates, but the

more significant of the two was the reformulated gasoline (RFG) program, which

took effect January 1, 1995. Under the reformulated gasoline program, areas with

“severe” or “extreme” ozone pollution (124 counties with a combined population of

73.6 million) must use reformulated gasoline; areas with less severe ozone pollution

may opt into the program as well, and many have done so. In all, portions of 17

states and the District of Columbia use reformulated gasoline; a little more than 30%

of the gasoline sold in the United States is RFG.

Since the mid-1990s, the addition of MTBE to RFG and its use in conventional

gasoline has become increasingly controversial. The additive has caused numerous

1

This report focuses on provisions that address Clean Air Act, renewable fuel, and

underground storage tank leak prevention and cleanup issues. It does not address other

provisions of the comprehensive energy bill; for an overview of these provisions, see CRS

Report RL33302, The Energy Policy Act of 2005: Summary and Analysis of Enacted

Provisions, coordinated by Mark Holt and Carol Glover. Of the four authors of this report,

James McCarthy handles the Clean Air Act; Brent Yacobucci, renewable fuels; Mary

Tiemann, underground storage tank issues. “Safe harbor” provisions are addressed by

Aaron Flynn, American Law Division.

CRS-2

incidents of water contamination across the nation. The primary source of MTBE in

groundwater and drinking water has been petroleum releases from leaking

underground storage tanks. MTBE has been detected in drinking water sources in

at least 36 states,2 and 25 states have taken steps to ban or regulate its use. The most

significant of these bans (in California and New York) took effect at the end of 2003,

leading many to suggest that Congress revisit the issue to modify the oxygenate

requirement and set more uniform national requirements regarding MTBE and its

potential replacements (principally ethanol).

P.L. 109-58 repeals the Clean Air Act requirement that reformulated gasoline

contain at least 2% oxygen — the requirement that forces refiners and importers to

use MTBE, ethanol, or other oxygenates in their RFG.3 In place of this requirement,

it provides a major new stimulus to promote the use of ethanol — a provision that the

annual production of gasoline contain at least 7.5 billion gallons of renewable fuel

by 2012.

The enacted bill uses the term “renewable fuel” rather than ethanol, so the

requirement can be met by other fuels, including natural gas produced from landfills,

sewage treatment plants, feedlots, and other decaying organic matter. The renewable

fuel definition also encompasses biodiesel, which can be made from soy oil or other

cooking oils. However, ethanol is the only renewable motor fuel currently being

produced in significant quantities. In 2004, roughly 3.4 billion gallons of ethanol

were blended with gasoline.4 Biodiesel, the next most significant renewable motor

fuel, is currently consumed at a rate of about 50 million gallons annually, less than

2% of the amount of ethanol consumed.5

Some provisions of the House- and Senate-passed bills did not survive the

conference. The House- and Senate-passed bills would have established a

nationwide ban on the use of MTBE (although the deadlines and potential exceptions

differed); and both bills would have established a “safe harbor” from product liability

lawsuits for producers of ethanol and other renewable fuels. Neither of these

provisions was included in the enacted version. The enacted bill also dropped the

House bill’s safe harbor for MTBE producers, as well as the transitional assistance

for merchant producers of MTBE that was included in both the House- and Senatepassed versions.

2

American Water Works Research Foundation, Occurrence of MTBE and VOCs in Drinking

Water Sources of the United States, 2003.

3

It should be noted that while overall requirements for RFG formulation have significantly

reduced the emissions of ozone-forming pollutants, some research indicates that these

emissions reductions have resulted from RFG requirements other than the oxygenate

standard, and that the benefits of the oxygenate standard alone are questionable.

4

This is roughly 2% of total U.S. gasoline demand. Renewable Fuels Association, Ethanol

Industry Outlook 2005, Washington, D.C., January 2005.

5

For additional information on ethanol and biodiesel, see CRS Report RL30758, Alternative

Transportation Fuels and Vehicles: Energy, Environment, and Development Issues, and

CRS Report RL30369, Fuel Ethanol: Background and Public Policy Issues.

CRS-3

The enacted bill also amends the underground storage tank (UST) regulatory

program under Subtitle I of the Solid Waste Disposal Act (SWDA) to better prevent

leaks of petroleum and MTBE from underground tanks. It authorizes EPA and states

to use appropriations from the Leaking Underground Storage Tank (LUST) Trust

Fund for administering their LUST cleanup programs and enforcing tank leak

prevention regulations. Patterned after the House bill, P.L. 109-58, as amended,6

authorizes $1 billion for the cleanup of leaks of fuels containing MTBE or other

oxygenates (including ethanol), and another $1 billion for EPA and states to

administer and enforce the current LUST cleanup program. However, the act’s tax

extension language (§1362) prohibits the use of LUST Trust Fund appropriations for

any new purposes. Thus, while the Energy Policy Act of 2005 markedly expands

states’ leak prevention responsibilities, it prohibits the use of the trust fund money

to support state implementation of the new requirements. Among other provisions,

the act requires EPA or the state to conduct UST compliance inspections every three

years; prohibits fuel delivery to ineligible tanks; directs states to develop training

requirements for individuals responsible for tank operation and maintenance; and

requires EPA to establish a strategy to address releases on tribal lands.

The remainder of this report provides a side-by-side comparison of the MTBE

and renewable motor fuel provisions of the House and Senate bills with the final law,

P.L. 109-58. (For additional information on MTBE, see CRS Report RL32787,

MTBE in Gasoline: Clean Air and Drinking Water Issues, by James E. McCarthy and

Mary Tiemann. For information on ethanol, see CRS Report RL30369, Fuel

Ethanol: Background and Public Policy Issues, and CRS Report RL33290,

Alternative Fuels and Advanced Technology Vehicles: Issues in Congress, both by

Brent D. Yacobucci. For a legal discussion of the safe harbor provisions as proposed,

see CRS Report RS21676, The Safe-Harbor Provision for Methyl Tertiary Butyl

Ether (MTBE), by Aaron M. Flynn.)

6

Technical corrections to the Energy Policy Act were enacted in P.L. 109-168 on January

10, 2006. The only substantial correction to Title XV was the revision of the dates

authorizing appropriations for Subtitle I, regarding the regulation of underground storage

tanks, from FY2005-FY2009 to FY2006-FY2011.

CRS-4

Side-by-Side Comparison of Fuels and MTBE Provisions in H.R. 6 and P.L. 109-58

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Renewable Content of

Motor Vehicle Fuel

A new §211(o) is added to the Clean Air Act.

Beginning in 2005, motor vehicle fuel must

contain a certain amount of renewable fuel. In

2005, 3.1 billion gallons of renewable fuel

must be sold annually, increasing to 5.0 billion

gallons in 2012. After 2012, the percentage of

renewable fuel required in the motor fuel pool

must be the same as the percentage required in

2012. This standard will largely be met by

ethanol, but other renewable fuels, such as

biodiesel, are eligible. Ethanol from cellulosic

biomass (including from wood and agricultural

residue, animal waste, and municipal solid

waste) is granted extra credits toward fulfilling

the program’s requirements (1 gallon of

cellulosic ethanol counts as 1.5 gallons of

renewable fuel). Further, the bill would

establish a credit trading program to provide

flexibility to refiners and blenders. [§1501]

Significant differences from the House version:

Requires that 4.0 billion gallons of renewable

fuel be used in 2006, increasing to 8.0 billion

gallons in 2012. After 2012, the minimum

requirement is the ratio of renewable fuel to

gasoline in 2012, but EPA has the authority to

establish a higher requirement. A gallon of

cellulosic ethanol counts as 2.5 gallons of

renewable fuel (1.5 gallons in the House

version). Further, after 2012, a minimum of 250

million gallons of cellulosic ethanol is required

in fuel annually (and would not be subject to the

increased credit for cellulosic ethanol). [§211]

Similar to Senate provision,

except that 4.0 billion gallons

is required in 2006, increasing

to 7.5 billion gallons in 2012.

EPA has the authority to

establish the requirement in

subsequent years, but no

lower than the percentage in

2012. A gallon of cellulosic

ethanol counts as 2.5 gallons

of renewable fuel. After

2012, a minimum of 250

million gallons of cellulosic

ethanol is required in fuel

annually. [§1501]

CRS-5

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Safe Harbor

Renewable fuels, MTBE, or fuels blended with

renewable fuels or MTBE cannot be deemed a

“defective product.” Applicability of this

“safe harbor” would be conditioned upon a

party’s compliance with EPA regulations

issued under § 211 of the Clean Air Act and

any applicable requests for information.

Assuming these qualifications were met, any

entity within the product chain, from

manufacturers to retailers, would be shielded

from products liability-based lawsuits, the

approach that has been taken in most of the

suits filed. Liability based on other grounds,

such as negligence or breach of contract, to the

extent it applies, would remain intact.

[§1502(a)]

Renewable fuels used or intended to be used as a

motor vehicle fuel and any motor vehicle fuel

containing renewable fuel cannot be deemed

defective in design or manufacture. The term

“renewable fuels” would be defined by a

corresponding amendment to § 211 of the Clean

Air Act. Further, ethers, including MTBE,

would not be covered by the “safe harbor.”

Applicability of the provision would also be

conditioned upon a party’s compliance with

EPA regulations issued under § 211 of the Clean

Air Act and any applicable requests for

information. Unlike the House bill, this

provision would not apply retroactively, and

pertains only to claims filed on after the date of

the provision’s enactment. [§211(a)]

No comparable provision.

The provision would apply retroactively to

claims filed on or after September 5, 2003,

thereby nullifying numerous pending lawsuits.

[§1502(b)]

CRS-6

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Claims Filed After

Enactment

No comparable provision.

No comparable provision.

Under this provision, any

claim or legal action filed

after August 8, 2005 that

involves possible MTBE

contamination may be

removed to a federal district

court where jurisdiction and

venue would otherwise be

appropriate. This provision

thus allows state law based

claims that would otherwise

be ineligible for federal court

review to be heard by federal

judges. The substantive law

of the state will still be

applied in federal court,

although most rules of

procedure would be supplied

by federal law. [§1503]

CRS-7

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Ban on Use of MTBE

Not later than December 31, 2014, the use of

MTBE in motor vehicle fuel is prohibited

except in states that specifically authorize it.

EPA may allow MTBE in motor vehicle fuel

in quantities up to 0.5% in cases the

Administrator determines to be appropriate.

[§1504]

Similar provisions, except that the prohibition

amends Section 211(c) of the Clean Air Act and

would take effect not later than 4 years after the

date of enactment. [§223(c)]

No comparable provision.

Presidential

Determination

Allows the President to make a determination,

not later than June 30, 2014, that the

restrictions on the use of MTBE shall not take

place. [§1505(b)]

No comparable provision.

No comparable provision.

National Academy of

Sciences Review

Separately, requires the National Academy of

Sciences to conduct a review of MTBE’s

beneficial and detrimental effects on

environmental quality or public health or

welfare, including costs and benefits. The

review shall be completed by May 31, 2014.

[§1505(a)]

No comparable provision.

No comparable provision.

CRS-8

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

MTBE Transition

Assistance

Amends §211(c) of the Clean Air Act to

authorize $2 billion ($250 million in each of

FY2005-FY2012) for grants to assist merchant

U.S. producers of MTBE in converting to the

production of iso-octane, iso-octene, alkylates,

renewable fuels, and other fuel additives.

Eligible facilities are those that produced

MTBE before April 2003 and ceased

production after the date of enactment. The

Secretary of Energy may make grants available

unless EPA determines that such additives may

reasonably be anticipated to endanger public

health or the environment. [§1503]

Similar provision, except that $1 billion in

grants are authorized ($250 million in each of

FY2005-FY2008). Eligible facilities are those

that produced MTBE for consumption in

nonattainment areas after the date of enactment.

[§223(c)]

No comparable provision.

Protection of Water

Quality

No comparable provision.

Amends Section 211(c) of the Clean Air Act to

authorize the EPA Administrator to regulate,

control, or prohibit the manufacture,

introduction into commerce, offering for sale, or

sale of any fuel or fuel additive for use in a

motor vehicle or engine if it causes or

contributes to water pollution. [§223(c)]

No comparable provision.

Oxygen Content

Amends §211(k) of the Clean Air Act to

eliminate requirement that reformulated

gasoline contain at least 2% oxygen. Provision

takes effect 270 days after enactment, except

in California, where it takes effect immediately

upon enactment. [1506(a)]

Identical provision. [§224(a)]

Identical provision.

[§1504(a)]

CRS-9

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Toxic Air Pollutants

Amends §211(k)(1) of the Clean Air Act to

require that each refinery or importer of

gasoline maintain the average annual

reductions in emissions of toxic air pollutants

achieved by the reformulated gasoline it

produced or distributed in 1999 and 2000.

This provision is intended to prevent

backsliding, since the reductions actually

achieved in those years exceeded the

regulatory requirements. Establishes a credit

trading program for emissions of toxic air

pollutants. The anti-backsliding provision

applies only to the extent that the quantity

produced or imported is less than or equal to

the average annual quantity produced or

imported in the two base years. [§1506(b)]

Similar anti-backsliding provision, except that

the base years for determining allowable

emissions are 2001 and 2002. Also provides an

exception for California, which has more

stringent state requirements. [§224(b)]

Identical to Senate provision.

[§1504(b)]

Mobile Source Air

Toxics

Requires EPA to promulgate final regulations

to control hazardous air pollutants from motor

vehicles and their fuels by July 1, 2005.

[§1506(b)]

Similar provision, but the deadline for

promulgation is July 1, 2007. Also provides that

if the promulgated regulations achieve and

maintain greater overall reductions in emissions

of air toxics from RFG than what would be

achieved under the anti-backsliding

requirements described above, the antibacksliding requirements shall be null and void.

[§224(b)]

Identical to Senate provision.

[§1504(b)]

CRS-10

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Consolidation of RFG

Requirements

Eliminates the less stringent requirements for

volatility applicable to reformulated gasoline

sold in VOC Control Region 2 (northern

states) by applying the more stringent

standards of VOC Control Region 1(southern

states) to both regions. [§1506(c)]

Identical provision. [§224(d)]

Identical provision. [§1504(c)]

Public Health and

Environmental

Impacts of Fuels and

Additives

No comparable provision.

Amends §211(b) of the Clean Air Act to require

manufacturers of fuels and fuel additives to

conduct tests of their health and environmental

impacts (currently, these tests are at EPA’s

discretion and do not include environmental

effects). Also requires EPA, within 2 years, to

conduct a study of the health and environmental

effects of MTBE substitutes, including ethanolblended RFG. [§225]

Identical to Senate provision.

[§1505]

Analyses of Fuel

Changes

A new §211(p) is added to the Clean Air Act.

Within four years of enactment, the

Administrator of the Environmental Protection

Agency (EPA) must publish a draft analysis of

the effects of the fuels provisions in H.R. 6 on

air pollutant emissions and air quality. Within

five years of enactment, the Administrator is

required to publish a final version of the

analysis. [§1507]

Similar to the House provision, except that the

Senate version also requires EPA to publish

within one year of enactment a study on the

effects of ethanol content on fuel permeation

through vehicle fuel systems. [§226]

Identical to Senate provision.

[§1506]

CRS-11

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

RFG Opt-In

No comparable provision.

Allows governors of 12 northeastern states (the

Ozone Transport Region) to petition EPA to

require RFG use in attainment areas in their

states. The Administrator shall do so unless he

determines that there is insufficient capacity to

produce RFG, in which case the commencement

date of the requirement shall be delayed. [§227]

Identical to Senate provision.

[§1507]

Federal Enforcement

of State Standards

No comparable provision.

At the request of a state, allows federal

enforcement of state controls on fuels and fuel

additives. [§228]

No comparable provision.

Renewable Fuels

Surveys

Requires DOE to collect and publish monthly

survey data on the production, blending,

importing, demand, and price of renewable

fuels, both on a national and regional basis.

[§1508]

Similar to House provision, except that DOE

must also collect and publish data on production

costs. [§213]

Identical to House provision.

[§1508]

Not later than December 1, 2006, and annually

thereafter, requires EPA Administrator to

conduct a survey to determine the market

shares of conventional gasoline and RFG

containing ethanol and other renewable fuels

in conventional and RFG areas in each state.

[§1501(c)]

Substantially similar to House version.

[§212(b)]

Identical to House provision.

[§1501(d)]

CRS-12

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Reducing the

Proliferation of State

Fuel Blends

A new provision is added to §211(c)(4) of the

Clean Air Act. The EPA Administrator shall

not approve a control or prohibition respecting

the use of a fuel or fuel additive unless he finds

that it will not cause fuel supply or distribution

interruptions or have a significant adverse

impact on fuel producibility in the affected

area or contiguous areas. Within 18 months of

enactment, the Administrator shall submit a

report to Congress on the effects of providing a

preference for RFG or either of two low

volatility (7.0 and 7.8 Reid Vapor Pressure)

gasolines. [§1509]

No comparable provision.

No comparable provision.

Reducing the

Proliferation of

Boutique Fuels

The EPA Administrator is permitted to

temporarily waive fuel requirements, including

state fuel requirements and RFG standards, in

the case of a natural disaster, Act of God,

pipeline or refinery equipment malfunction, or

other unforeseeable event. [§1541(a)]

No comparable provision.

Identical to House provisions.

[§1541(a) and §1541(b)]

In addition, the Administrator may not approve

a fuel standard under a State Implementation

Plan if that standard would increase the

number of unique state formulations above the

number as of September 1, 2004. [§1541(b)]

CRS-13

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Fuel System

Requirements

Harmonization Study

The EPA Administrator and the Secretary of

Energy are required to conduct a study of

federal, state, and local motor fuels

requirements. They are required to analyze the

effects of various standards on consumer

prices, fuel availability, domestic suppliers, air

quality, and emissions. Further, they are

required to study the feasibility of developing

national or regional fuel standards, and to

provide recommendations on legislative and

administrative actions to improve air quality,

increase supply liquidity, and reduce costs to

consumers and producers. A report must be

submitted to Congress by December 31, 2009.

[§1510]

Substantially similar to the House version,

except that the report must include the effects on

sensitive populations, and the report must be

submitted to Congress by June 1, 2008. [§229]

Identical to Senate provision,

except that the report must

also include projected effects

on air quality and fuel prices

from other federal and state

fuel and vehicle emission

control programs. [§1509]

CRS-14

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Cellulosic Biomass,

Municipal Solid Waste,

and Sugar Ethanol

Loan Guarantees

The Secretary of Energy is required to

establish a loan guarantee program for the

construction of facilities to produce fuel

ethanol and other commercial byproducts from

municipal solid waste and cellulosic biomass.

Applicants for loan guarantees must provide

assurance of repayment (at least 20%) in the

form of a performance bond, insurance

collateral, or other means. The section

authorizes such sums as may be necessary for

the program. [§1511]

The Secretary of Energy is required to establish

loan guarantees for no more than four projects to

demonstrate the commercial feasibility and

viability of converting cellulosic biomass or

sucrose into ethanol. Loan guarantees can cover

a maximum amount of $250 million per project,

but in no case for more than 80% of a project’s

estimated cost, as well as up to 80% of project

costs in excess of the estimate. No new funding

is authorized. [§212(c)]

The enacted law contains

three similar provisions in

different sections. These

various provisions may

conflict with each other.

Identical to House provision.

[§1510]

Identical to Senate provision.

[§1511(b)]

The Secretary of Energy is

required to establish loan

guarantees to demonstrate the

commercial feasibility and

viability of converting

sugarcane and sugarcane

byproducts into ethanol. Loan

guarantees can cover a

maximum amount of $50

million per project, but in no

case for more than 80% of a

project’s estimated cost, as

well as up to 80% of project

costs in excess of the estimate.

No new funding is authorized.

[§1516]

CRS-15

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Cellulosic Biomass

Conversion Assistance

Allows Secretary of Energy to provide grants

for the construction of facilities to produce

renewable fuels (including ethanol) from

cellulosic biomass, agricultural byproducts,

agricultural waste, and municipal solid waste.

A total of $750 million is authorized to be

appropriated between FY2005 and FY2007.

[§1512]

Similar to the House version, except that only

facilities that produce ethanol (and not other

renewable fuels) from municipal waste or

agricultural residue may qualify. A total of

$650 million is authorized between FY2005 and

FY2006. [§212(f)]

The enacted law contains two

similar provisions in different

sections. These provisions

may conflict with each other.

Identical to Senate provision,

except that a total of $650

million is authorized between

FY2006 and FY2007.

[§1511(e)]

Substantially similar to House

provision, except that $750

million is authorized for

FY2006 through FY2008.

[§1512]

Blending of Compliant

Reformulated

Gasolines

Retailers may blend batches of reformulated

gasoline with and without ethanol, as long as

both batches are compliant with the Clean Air

Act. In a given year, retailers may only blend

batches over two ten-day periods in the

summer months. [§1513]

Retailers may blend batches of reformulated

gasoline with and without ethanol as long as the

resulting fuel is compliant with the Clean Air

Act. There is no limitation on the number of

batches or duration of blending. [§224(c)]

Identical to House provision.

[§1513]

CRS-16

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Underground Storage

Tanks (USTs)

Amends Solid Waste Disposal Act (SWDA)

Subtitle I. New §9004(f) directs EPA to allot

to the states at least 80% of the funds made

available from the Leaking Underground

Storage Tank (LUST) Trust Fund under

§9014(2)(A). In addition to the current use of

funds to carry out the response program for

petroleum tank leaks, §9004(f) authorizes

states to use funds to pay the reasonable costs

incurred for (1) administrative expenses

related to state funds or assurance programs;

and (2) enforcing state UST programs. Also

authorizes EPA to use funds not allotted to

states to enforce any Subtitle I regulation.

[§1522]

No comparable provision.

Identical to House provision.

[§1522]

Cost Recovery

New SWDA §9003(h)(6)(E) requires EPA or a

state, in determining the portion of cleanup

costs to recover from a tank owner or operator,

to consider the owner or operator’s ability to

pay and still maintain basic business

operations. [§1522]

No comparable provision.

Identical to House provision.

[§1522]

Tank Inspections

New SWDA §9005(c) requires states, within 2

years of enactment, as appropriate, to perform

on-site compliance inspections of all tanks that

have not been inspected since Dec. 1998

(when final UST regulations went into effect).

Then, as appropriate, states must conduct

inspections of tanks at least once every 3

years. EPA may grant a state a 1-year

extension to the first 3-year inspection interval.

[§1523]

No comparable provision.

Identical to House provision.

[§1523]

CRS-17

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

State Compliance

Reports

New SWDA §9003(i) requires states to

prepare and submit to EPA compliance reports

on government-owned tanks in the state.

[§1526(b)] (Note: §1530(a) also adds a new

SWDA §9003(i) on additional groundwater

protection measures.)

No comparable provision.

Identical to House provision.

[§1526(b)]

LUST Trust Fund

Authorization of

Appropriations

§9014(2)(C) authorizes the appropriation of

$100 million for each of FY2005-FY2009 to

carry out §9003(i), §9004(f), and §9005(c).

[§1531]

No comparable provision.

Identical to House provision.

[§1531]

LUST Trust Fund

Authorization of

Appropriations for

LUST Response

Program

New SWDA §9014(2)(A) authorizes the

appropriation of $200 million for each of

FY2005-FY2009 from the LUST Trust Fund

for EPA and states to carry out §9003(h), the

response program for leaking petroleum tanks

(except for MTBE and other oxygenated fuel

remediation). [§1531]

No comparable provision.

Identical to House provision.

[§1531]

(Note: P.L. 109-168, enacted

January 10, 2006, revised the

dates authorizing

appropriations for Subtitle I,

from FY2005-FY2009 to

FY2006-FY2011.)

Remediation of MTBE New SWDA §9003(h)(12) authorizes EPA and

and Other Fuel

states to use funds from the LUST Trust Fund

Additives

to remediate underground storage tank releases

of fuels containing oxygenated fuel additives

(e.g., MTBE, other ethers, and ethanol).

[§1525]

Similar, except that funds may be used to

remediate contamination from MTBE and other

ether fuel additives (not ethanol); releases need

not be from underground storage tanks to be

eligible for funding. [§222(a)]

Identical to House provision.

[§1525]

LUST Trust Fund

Authorization of

Appropriations

New SWDA §9011(1) authorizes for this

purpose the appropriation of $200 million for

FY2005, to remain available until expended.

[§222(a)]

Identical to House provision.

[§1531(a)]

(See note above.)

New SWDA §9014(2)(B) authorizes for this

purpose the appropriation of $200 million

annually for FY2005-FY2009. [§1531(a)]

CRS-18

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Use of LUST Trust

New SWDA §9011 authorizes EPA and states

Fund for UST Program to use funds from the LUST Trust Fund to

Enforcement

conduct inspections, issue orders, or otherwise

enforce Subtitle I regulations (UST leak

prevention and detection regulations, as well

as LUST response program regulations).

[§1526(a)]

Adds similar new §9010.

[§222(b)]

Identical to House provision.

[§1526]

Other UST

Requirements and

Funding

Subtitle I makes several other changes to the

UST regulatory program in SWDA, imposing

new requirements on state and federal

governments, and tank owners, operators and

installers:

No comparable provisions.

Identical to House provision.

UST Operator Training

Revised §9010 requires states to develop

operator training requirements, based on EPA

guidance (applicable to persons with primary

and daily tank operation and maintenance

responsibilities, and spill response

responsibilities). [§1524]

No comparable provision.

Identical to House provision.

[§1524]

Delivery prohibition

New §9012 prohibits product delivery to tanks

that EPA or a state determines are ineligible

for fuel delivery. Requires EPA and states to

develop delivery prohibition rosters. Provides

for civil penalties for violations of this

prohibition. [§1527]

No comparable provision.

Identical to House provision.

[§1527]

Federal Facilities

Amends §9007 to clarify and expand

compliance requirements for USTs under the

jurisdiction of the federal government. [§1528]

No comparable provision.

Identical to House provision.

[§1528]

Tanks under Tribal

Jurisdiction

New §9013 requires EPA, with Indian tribes,

to develop and implement a strategy to address

releases on tribal lands. [§1529]

No comparable provision.

Identical to House provision.

[§1529]

CRS-19

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

UST Program:

Other Groundwater

Protection Measures

(Secondary

Containment,

Financial

Responsibility)

New §9003(i) provides that, beginning 18

months after enactment, states that receive

funding under Subtitle I must do one of the

following: (1) require that newly installed or

replaced tanks and piping are secondarily

contained and monitored for leaks if the tank

or piping is within 1,000 feet of a community

water system or potable well; (2) require that

UST manufacturers and installers maintain

evidence of financial responsibility to pay for

corrective actions, and require that persons

installing UST systems are certified or

licensed, or that their UST system installation

is certified by a professional engineer or

inspected and approved by the state, or is

compliant with a code of practice or other

method determined by a state (or EPA) to be

no less protective of human health and the

environment. [§1530(a)]

(Note: §1526(b) and §1530(a) both create a

new §9003(i).)

No comparable provision.

Identical to House provision.

[§1530(a)]

LUST Trust Fund

Authorization of

Appropriations

New SWDA §9014(2)(D) authorizes the

appropriation of $55 million for each of

FY2005-FY2009 to carry out §9010 (operator

training), §9011 (enforcement), §9012

(delivery prohibition) and §9013 (Indian lands

strategy). [§1531]

New SWDA §9011(2) authorizes the

appropriation of $50 million for FY2005 and

$30 million for each of FY2006-FY2010 to

carry out §9010 (enforcement).

[§222(b)]

Identical to House provision.

[§1531]

(Note: P.L. 109-58, §1362, a

tax extension provision,

prohibits the use of LUST

Trust Fund appropriations for

any new purposes.)

CRS-20

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

UST Program:

Authorization of

Appropriations

(General Revenues)

New SWDA §9014(1) authorizes the

appropriation of $50 million for each of

FY2005-FY2009 to carry out Subtitle I (except

for §9003(h) (LUST cleanup

program),§9005(c) (inspections),

§9011(enforcement), and §9012 (delivery

prohibition). [§1531]

No comparable provision.

Identical to House provision.

[§1531]

Resource Center

No comparable provision.

Authorizes $4 million for the Mississippi State

University and Oklahoma State University for

each of FY2005-FY2007 for a resource center to

further develop bioconversion technology using

low-cost biomass for the production of ethanol.

[§212(d)]

Identical to Senate provision.

[§1511(c)]

Renewable Fuel

Production Research

and Development

Grants

No comparable provision.

Authorizes $25 million in each of FY2006FY2010 for research, development, and

implementation of renewable fuel production

technologies in RFG states with low rates of

ethanol production. [§212(e)]

Identical to Senate provision.

[§1511(d)]

CRS-21

Provision

H.R. 6 — Energy Policy Act of 2005, as

passed the House

H.R. 6 — Energy Policy Act of 2005, as

passed by the Senate

P.L. 109-58 — Energy Policy

Act of 2005, as enacted

Advanced Biofuels

Technology Program

No comparable provision.

Authorizes $110 million in each of FY2005

through FY2009 for projects to demonstrate new

technologies for the production of biofuels. The

program must fund at least 4 different

technologies for producing cellulosic biomass

ethanol and at least 5 technologies for the

production of value-added biodiesel fuel

coproducts. Preference is given to projects that

enhance geographical diversity of alternative

fuel production and to projects with feedstocks

used in 10 percent or less of annual ethanol and

biodiesel production. [§230]

Identical to Senate provision.

[§1514]

Sugar Cane Ethanol

Program

No comparable provision.

Establishes a program to study the production of

ethanol from cane sugar, sugarcane, and

sugarcane byproducts. The program would be

limited to projects in Florida, Louisiana, Texas,

and Hawaii. A total of $36 million is

authorized. [§231]

Substantially similar to the

Senate version. [§208]