Environmental Protection Issues in the 109th Congress

Order Code RL33481

Environmental Protection Issues

in the 109th Congress

Updated December 20, 2006

Susan R. Fletcher and Margaret Isler, Coordinators

Resources, Science, and Industry Division

David M. Bearden, Claudia Copeland, Robert Esworthy,

Linda Luther, James E. McCarthy, Jonathan L. Ramseur,

Mark Reisch, Linda-Jo Schierow, Mary Tiemann,

and Brent D. Yacobucci

Resources, Science, and Industry Division

Environmental Protection Issues

in the 109th Congress

Summary

Environmental protection concerns span a wide variety of issues, including

clean air, water quality, chemical security, and environmental aspects of other major

issue areas, such as energy, transportation, disaster relief and cleanup, and defense.

This report provides an overview of key environmental issues that received attention

in the 109th Congress.

A number of environmental measures were the subject of congressional activity,

some of them as part of comprehensive bills and laws on broader subjects such as

energy and transportation. On August 8, 2005, President Bush signed P.L. 109-58

(H.R. 6), the Energy Policy Act of 2005, an omnibus energy package that contains

numerous environmentally related provisions. Perhaps the most important include

a renewable fuel standard and streamlined environmental permitting. On August 10,

2005, the President signed the transportation reauthorization bill, P.L. 109-59. This

law, the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A

Legacy for Users (SAFETEA-LU), contains various environmental provisions.

Congress attached to the FY2007 Department of Homeland Security (DHS)

Appropriations Act (P.L. 109-295) authority for DHS to regulate chemical facilities

that present high-security risks. This authority expires three years after enactment

(i.e., on October 4, 2009).

Appropriations for the Environmental Protection Agency (EPA) affect many of

the programs and issues discussed in this report, which have been of perennial

interest to Congress. The 109th Congress adjourned without finalizing FY2007

appropriations for EPA and many other federal agencies. A continuing resolution

(P.L. 109-383) provided funding through February 15, 2007. Earlier in the second

session, the House had included $7.58 billion for EPA when it passed the FY2007

Interior, Environment, and Related Agencies appropriations bill (H.R. 5386). The

Senate Appropriations Committee included $7.53 billion when it reported its version

of this bill. Both amounts were more than the President’s request of $7.32 billion,

but less than the $7.72 billion appropriated for FY2006.

The second session enacted FY2007 defense authorization legislation (P.L. 109364), including authorization of funding for cleanup and other environmental

activities on military lands and nuclear weapons sites. Appropriations for these

activities were not enacted, but were funded through February 15, 2007, under the

above continuing resolution. Although the Department of Defense sought

exemptions from certain environmental requirements, the 109th Congress did not

include them in either defense authorization or appropriations legislation.

Bills that received floor action by one or both chambers, or that were enacted

into law, are listed and briefly described in Table 1. (Note: This report treats mainly

pollution-related matters; for natural resource management issues, see CRS Report

RL32699, Natural Resources: Selected Issues for the 109th Congress, coordinated by

Nicole Carter and Carol Hardy Vincent.) This report replaces CRS Issue Brief

IB10146, Environmental Protection Issues in the 109th Congress.

Contents

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

Environmental Protection Agency Appropriations . . . . . . . . . . . . . . . . . . . . 2

Energy and Environment: The Energy Bill . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Clean Air Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Clean Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Safe Drinking Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Leaking Underground Storage Tanks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Superfund and Brownfields . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Brownfield Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Surface Transportation and Environment . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Chemicals: Security and Regulatory Issues . . . . . . . . . . . . . . . . . . . . . . . . . 15

Defense Environmental Cleanup and Other Issues . . . . . . . . . . . . . . . . . . . 16

Alternative Fuels and Advanced Technology Vehicles . . . . . . . . . . . . . . . . 18

List of Tables

Table 1. Environmental Protection Legislation Passed in the 109th Congress . . 20

Environmental Protection Issues

in the 109th Congress

Introduction

The first session of the 109th Congress saw enactment of several laws that

include key environmental provisions, and Congress considered and took some

action on a variety of environmental measures. Many of the issues dealt with by this

Congress reflect continuing consideration of issues that were before prior

Congresses. These include issues that were considered but not enacted, as well as

annually occurring legislation on matters such as Environmental Protection Agency

(EPA) appropriations and environmental provisions in defense-related legislation.

Environmental issues considered by Congress tend to fall into several major

categories: (1) funding issues — whether funding levels are adequate and/or focused

on appropriate priorities; in light of the current federal budget deficit, reductions in

the budget request for EPA and other programs present difficult choices, and

questions about the adequacy of funding levels were debated in such areas as water

quality infrastructure and Superfund cleanup; (2) expanding, renewing, or refocusing

existing environmental policies or programs — consideration of proposals that would

alter air quality requirements in the current Congress, for example; (3) environmental

issues that are important elements of other major areas of concern; for example, the

issue of streamlining environmental reviews in energy and transportation

reauthorization legislation, and other environmental provisions in energy measures,

or environmental issues in defense authorization or appropriations; and (4) security

concerns, such as terrorism and infrastructure protection in areas such as water

infrastructure and chemical facilities.

The hurricanes that damaged large areas of the U.S. Gulf Coast in late August

and September of 2005 were a major focus of congressional attention in the 109th

Congress, including a number of environmental concerns. Among the many issues

of interest were environmental considerations related to the hurricane cleanup effort,

involving a large amount of contaminated substances and debris; consideration of

modification of environmental laws or rules to expedite disaster response and

recovery; and measures needed to speed delivery of assistance to restore public

services, including water infrastructure facilities. (For discussion and analysis of the

environmental aspects of hurricane-related issues and concerns, see CRS Report

RS22248, Federal Disaster and Emergency Assistance for Water Infrastructure

Facilities and Supplies, by Claudia Copeland, Mary Tiemann, and Nicole T. Carter;

CRS Report RS22285, Hurricane-Damaged Drinking Water and Wastewater

Facilities: Impacts, Needs, and Response, by Claudia Copeland; CRS Report

RL33107, Emergency Waiver of EPA Regulations: Authorities and Legislative

Proposals in the Aftermath of Hurricane Katrina, by James E. McCarthy and Claudia

Copeland; CRS Report RL33115, Cleanup After Hurricane Katrina: Environmental

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Considerations, by Robert Esworthy, Linda-Jo Schierow, Claudia Copeland, Linda

Luther, and Jonathan L. Ramseur; CRS Report RL33477, Disaster Debris Removal

After Hurricane Katrina: Status and Associated Issues, by Linda Luther; and CRS

Report RL33104, NEPA and Hurricane Response, Recovery, and Rebuilding Efforts,

by Linda Luther.

Major attention in the first session of the 109th Congress was focused on

consideration and passage of both energy and transportation laws, which were

enacted in 2005. Environmental provisions were key aspects of these laws, as

discussed below. Early action also occurred on S. 131, Clear Skies legislation, which

was scheduled for markup March 9, 2005; a tie vote in committee prevented the bill

from being reported to the floor.

In the second session, congressional action on environmental legislation focused

primarily on EPA appropriations and defense bills that include authorization and

appropriation of funding for environmental activities (see discussion below).

Congress also addressed security issues at chemical facilities by including in DHS

appropriations legislation authority for DHS to regulate high-risk facilities for three

years.

Bills that received floor action by one or both chambers, or that were enacted

into law, are listed and briefly described in Table 1. The discussion of major

environmental protection issues below focuses on selected key environmental

concerns and related activity in the 109th Congress. It is not intended to provide

comprehensive coverage of all environmental issues; in particular, it does not address

issues involving public lands, parks, or other natural resources. (For information on

the latter, see CRS Report RL32699, Natural Resources: Selected Issues for the 109th

Congress, coordinated by Nicole Carter and Carol Hardy Vincent. For an overview

of major environmental pollution control laws, see CRS Report RL30798,

Environmental Laws: Summaries of Statutes Administered by the Environmental

Protection Agency, coordinated by Susan R. Fletcher.)

Environmental Protection Agency Appropriations

(By David Bearden, 7-2390, and Robert Esworthy, 7-7236, Specialists in

Environmental Policy)

Early in its first session, the 109th Congress eliminated the Veterans Affairs,

Housing and Urban Development (VA-HUD), and Independent Agencies

appropriations subcommittees in both houses and moved funding jurisdiction for the

Environmental Protection Agency (EPA) to the Interior subcommittees. As enacted

later in the first session in August 2005, Title II of the Interior, Environment, and

Related Agencies Appropriations Act for FY2006 (P.L. 109-54, H.R. 2361) provided

$7.73 billion for EPA. However, Congress reduced this amount to $7.71 billion as

a result of a 0.476% across-the-board rescission required in P.L. 109-54 and a 1%

government-wide rescission subsequently required in the Department of Defense

Appropriations Act for FY2006 (P.L. 109-148). Overall, P.L. 109-54 provided more

funding for EPA than the Administration’s request of $7.52 billion, but less than the

FY2005 appropriation of $8.03 billion. (For more information, see CRS Report

RL32856, Environmental Protection Agency: Appropriations for FY2006, by Robert

Esworthy and David Bearden, and CRS Report RS22064, Environmental Protection

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Agency: FY2006 Appropriations Highlights, by David Bearden and Robert

Esworthy.)

In the second session, attention turned to appropriations for FY2007 and

completing action on supplemental appropriations for FY2006. The President signed

the Emergency Supplemental Appropriations Act for FY2006 (P.L. 109-234, H.R.

4939) on June 15, 2006, increasing EPA’s FY2006 appropriation by $13 million to

a total of $7.72 billion. Of the $13 million supplemental, $6 million was for

increased environmental monitoring, assessment, and analytical support to protect

public health during the ongoing recovery and reconstruction efforts related to the

consequences of Hurricane Katrina and other hurricanes of the 2005 season. The

remaining $7 million was for assessing underground storage tanks that may have

leaked in areas affected by these hurricanes.

The 109th Congress adjourned without finalizing FY2007 appropriations for

EPA and many other federal agencies, but it enacted a continuing resolution (P.L.

109-383, H.J.Res. 102) to provide funding for these agencies through February 15,

2007. The funding formula contained in P.L. 109-383 sets continuing appropriations

for programs and activities generally at either the current (FY2006) level, the level

in the pertinent House-passed bill, or the level in the Senate-passed bill, whichever

is lowest. (See CRS Report RL33681 FY2007 Regular Appropriations Acts:

Procedures for End-of-Session Wrap-Up, by Robert Keith.) Earlier in the second

session, the House had passed the FY2007 Interior, Environment, and Related

Agencies appropriations bill (H.R. 5386, H.Rept. 109-465) on May 18, 2006,

recommending $7.58 billion for EPA. The Senate Appropriations Committee had

recommended $7.53 billion for EPA in reporting its version of the bill (S.Rept. 109275) on June 29, 2006. Although the full House and the Senate Appropriations

Committee amounts for EPA differed, both amounts were more than the President’s

request of $7.32 billion, but less than the FY2006 appropriation of $7.72 billion,

which includes enacted supplemental funding discussed above. In the absence of

final appropriations enacted for FY2007, the continuing resolution funds programs

administered by EPA and many other federal agencies at the lowest of the FY2006

enacted appropriation, the House-passed bill, or the Senate-passed bill. Because the

Senate did not pass the Interior bill that funds EPA, the agency’s programs are

funded at either the FY2006 enacted level or the House-passed amount, whichever

is lowest.

As in recent years, debate in the second session regarding FY2007

appropriations for EPA included a major focus on the adequacy of the President’s

request for federal assistance to states for the clean water and drinking water State

Revolving Funds (SRFs), from which states issue loans to communities for

constructing and upgrading their wastewater and drinking water infrastructures to

meet federal requirements. Also similar to recent years, other prominent issues

included the adequacy of the President’s request for the cleanup of hazardous waste

sites under the Superfund program and the cleanup of commercial and industrial

sites, referred to as brownfields. There also was broad congressional interest in the

adequacy of funding for scientific research, air quality programs, and EPA’s

homeland security activities. The extent to which funding for individual grant

recipients should be congressionally designated (often referred to as earmarks) was

an issue as well. The funding and operation of EPA’s libraries received attention

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toward the end of the 109th Congress, although the funding for this activity is

relatively small compared with many other agency activities, such as those noted

above.

(For more information on EPA funding issues for FY2007, see CRS Report

RL33399, Interior, Environment, and Related Agencies: FY2007 Appropriations,

coordinated by Carol Hardy Vincent and Susan Boren; CRS Report RS22386,

Environmental Protection Agency: FY2007 Appropriations Highlights, by David

Bearden and Robert Esworthy; and CRS Report RS22533, Restructuring EPA’s

Libraries: Background and Issues for Congress, by David Bearden and Robert

Esworthy.)

Energy and Environment: The Energy Bill

(By Brent D. Yacobucci, Specialist in Environmental Policy, 7-9662)

After lengthy debate over U.S. energy policy, the 109th Congress enacted

omnibus energy legislation in July 2005. The debate over national energy policy had

been ongoing since the 107th Congress. Both the 107th and 108th Congresses were

unable to complete action on an omnibus energy bill, due to the broad scope of the

bills and stalemates over several contentious issues. Many of these contentious

issues were addressed in various versions of energy legislation in the 109th Congress,

although some of them were dropped from the final version of the bill. The Energy

Policy Act of 2005 (P.L. 109-58, H.R. 6) was signed by President Bush on August

8, 2005. The final version of the bill contains many provisions involving

environmental protection and regulation, including the treatment of renewable fuels,

stricter regulation of underground fuel storage tanks, and environmental exemptions

for oil and gas exploration and production.

A key component of P.L. 109-58 is a requirement that gasoline sold in the

United States must contain 7.5 billion gallons annually of ethanol and other

renewable fuels by 2012. The measure also eliminates Clean Air Act requirements

for the use of oxygenates in reformulated gasoline. The oxygenate standard led to the

increased use of MTBE in gasoline. (MTBE is a fuel additive used to increase

combustion efficiency that was found to contaminate drinking water supplies,

primarily due to leaking underground fuel storage tanks). The voluntary transition

away from MTBE by gasoline suppliers in spring 2006 contributed to the historically

high gasoline prices and caused concerns about the supply of ethanol for blending

into gasoline. (For more information, see CRS Report RL32865, Renewable Fuels

and MTBE: A Comparison of Provisions in the Energy Policy Act of 2005 (P.L. 10958 and H.R. 6), by Brent D. Yacobucci, Mary Tiemann, James E. McCarthy, and

Aaron M. Flynn, and CRS Report RL31361, “Boutique Fuels” and Reformulated

Gasoline: Harmonization of Fuel Standards, by Brent D. Yacobucci.)

P.L. 109-58 provides some exemptions from Clean Water Act and Safe

Drinking Water Act provisions for oil and gas exploration and production (related to

stormwater runoff and hydraulic fracturing). These provisions were seen by some as

necessary to promote increased domestic energy supplies, whereas critics complain

that they will allow energy producers to sidestep environmental protection

requirements and may result in depleted or polluted groundwater and surface water.

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P.L. 109-58 also contains provisions on technology to address climate change.

Title XVI establishes programs to promote the adoption of technologies — and their

transfer to developing countries — to reduce greenhouse gas intensity (emissions per

unit of economic output). These provisions were similar to those adopted on the

Senate floor in S.Amdt. 817. The Senate also debated two other climate change

amendments that were not included in the final version of the bill. S.Amdt. 866

expressed the sense of the Senate that Congress should establish mandatory, marketbased limits on greenhouse gas emissions; this amendment was passed by the Senate

in a voice vote but dropped in conference. S.Amdt. 826 would have required

mandatory greenhouse gas emission reductions; this amendment was rejected 38-60.

The House version of H.R. 6 did not address climate change or greenhouse gas

emissions. (For further discussion, see CRS Report RL32873, Key Environmental

Issues in the Energy Policy Act of 2005 (P.L. 109-58, H.R. 6), coordinated by Brent

D. Yacobucci.

The major hurricanes along the gulf coast in 2005 led to fuel supply disruptions

and contributed to significantly higher gasoline and diesel prices in many areas of the

country. As a result, there was increased interest in expanding U.S. refining capacity.

Although total refining capacity has increased in recent years, the number of

refineries has steadily declined, and no new U.S. refineries have been built in

decades. Many factors have discouraged investment in new refineries, and

environmental regulations have been cited as one of those factors. H.R. 3893, which

passed the House on October 7, 2005, would have limited the number of fuel blends

across the country and would have streamlined federal permitting of refineries,

among other provisions. A controversial amendment to the Clean Air Act’s New

Source Review provisions was removed before House passage. However, the Senate

took no action on this bill. (For more information on new source review, see CRS

Report RS21608, Clean Air and New Source Review: Defining Routine Maintenance,

by Larry Parker.)

Clean Air Issues

(By James E. McCarthy, Specialist in Environmental Policy, 7-7225)

The courts and the executive branch faced major decisions on clean air issues

in 2005 and 2006, which were the subject of concern to some in Congress. One

focus was the EPA Administrator’s September 21, 2006, decision regarding air

quality standards for fine particles. According to EPA and the consensus of the

scientific community, current concentrations of fine particles cause tens of thousands

of premature deaths annually. The Administrator’s September 21 decision will

strengthen the standards; according to the agency, it will reduce premature mortality

by 1,200 to 13.000 persons annually. However, many are unhappy that the new

standard will not be more stringent — for the first time ever, it falls outside of a

range recommended by the Clean Air Scientific Advisory Committee (CASAC), an

independent body established by the Clean Air Act to provide expert scientific

advice. On September 29, the CASAC Chair formally objected to the Administrator’s

action in a letter to him. For more information, see CRS Report RL33254, Air

Quality: EPA’s 2006 Changes to the Particulate Matter (PM) Standard, by Robert

Esworthy and James E. McCarthy.

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On March 17, 2006, the U.S. Court of Appeals for the D.C. Circuit struck down

an EPA rule that would have modified the New Source Review (NSR) provisions of

the Clean Air Act, exempting most equipment replacement projects at power plants

and other industrial sites from requirements to install pollution control equipment.

In a 3-0 decision, the court held that EPA’s attempt to change the NSR regulations

was “contrary to the plain language” of the act.

Congress acted on several Clean Air Act (CAA) issues in legislation that it

passed and sent to the President in late July, 2005. The most significant of these

issues, dealing with ethanol and reformulated gasoline (RFG), were addressed in the

Energy Policy Act of 2005, H.R. 6 (P.L. 109-58). The act eliminates a requirement

that RFG, used in the nation’s most polluted areas, contain at least 2% oxygen. In

its place, the act requires that the total gasoline supply contain increasing amounts

of renewable fuels, a requirement of great interest to the nation’s agricultural sector.

The renewable fuel is most likely to be ethanol, which is generally made from corn.

Congress also amended the Clean Air Act in H.R. 3 (P.L. 109-59), the

transportation bill that the President signed on August 10, 2005 (further discussed

below). H.R. 3 addresses a requirement that state and local transportation planners

demonstrate “conformity” between their transportation plans and the timely

achievement of air quality standards. Under the act, the frequency of conformity

determinations and the time frame during which conformity must be demonstrated

will both be reduced. Failure to demonstrate conformity can lead to a temporary

suspension of federal highway funds.

Other Clean Air Act amendments stalled in the 109th Congress. A bill that

would have established a cap-and-trade program for emissions of sulfur dioxide

(SO2), nitrogen oxides (NOx), and mercury from coal-fired electric power plants was

among the first items on the agenda of the 109th Congress: S. 131 (the Clear Skies

Act) was scheduled for markup by the Senate Environment and Public Works

Committee on March 9, 2005. But the committee failed to approve the bill, on a 9-9

tie vote, in large part because of complaints that the bill would weaken existing Clean

Air Act requirements. Another issue in the debate was whether to cap emissions of

carbon dioxide (CO2) in addition to the other three pollutants. With Clear Skies

stalled, on March 10, 2005, EPA finalized the Clean Air Interstate Rule (CAIR),

which will cap emissions of SO2 and NOx from power plants in 28 eastern states and

the District of Columbia and establish a cap-and-trade system through regulation.

A deadline for mercury regulations helped drive the Clear Skies debate: EPA

faced a judicial deadline of March 15, 2005, to promulgate standards for power plant

mercury emissions. The agency met this deadline, but the specific regulations have

been widely criticized and are now being challenged in court by at least 15 states.

The regulations could have been overturned if Congress disapproved them under the

Congressional Review Act. A resolution to do so (S.J.Res.20) was defeated by a vote

of 51-47 on September 13, 2005. Whether to modify other requirements of the Clean

Air Act (New Source Review, deadlines for non-attainment areas, and provisions

dealing with interstate air pollution) have also been contentious issues. (For

additional information, see CRS Report RL33552, Clean Air Act Issues in the 109th

Congress, by James E. McCarthy.)

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Clean Water Act

(By Claudia Copeland, Specialist in Resources and Environmental Policy, 7-7227)

The Clean Water Act (CWA) is the principal law that regulates pollution in the

nation’s lakes, rivers, and coastal waters. It also authorizes funds to aid construction

of municipal wastewater treatment plants. Although much progress has been made

in achieving the ambitious goals that Congress established in this law 30-plus years

ago to restore and maintain the chemical, physical, and biological integrity of the

nation’s waters, problems persist. The types of remaining water quality problems are

diverse, ranging from pollution runoff from farms and ranches, city streets, and other

diffuse or “nonpoint” sources, to metals and organic and inorganic toxic substances

discharged from factories and sewage treatment plants. No comprehensive

legislation has been enacted since 1987, but bills dealing with specific water quality

issues have been enacted, and oversight hearings on the act and recent Administration

water quality initiatives have been held. Throughout this period, Congress has

considered possible actions to implement existing provisions of the CWA, whether

additional steps are necessary to achieve the overall goals of the act, and the

appropriate federal role in guiding and paying for clean water infrastructure and other

activities. (For further information, see CRS Report RL33465, Clean Water Act: A

Review of Issues in the 109th Congress, and CRS Report RL30030, Clean Water Act:

A Summary of the Law, both by Claudia Copeland.)

During the 109th Congress, Congress enacted two bills dealing with specific

CWA programs. In December 2005, Congress passed H.R. 3963, authorizing $40

million per year for six years to extend the Long Island Sound program under Section

119 of the act (P.L. 109-137). In November 2006, Congress passed H.R. 6121, a bill

to reauthorize the Lake Pontchartrain Basin program in Section 121 of the act (P.L.

109-392).

Other bills received consideration but were not enacted. In December 2005, the

House approved H.R. 1721 (H.Rept. 109-292) to extend the coastal water quality

program in Section 406 of the act and to authorize $30 million over six years for

coastal water quality monitoring. In September 2006, the House Transportation and

Infrastructure Committee approved H.R. 4126, a bill to improve and reauthorize the

CWA Chesapeake Bay program in Section 117 of the act. Also in September, the

Senate Environment and Public Works Committee reported S. 1848, a bill intended

to promote remediation of inactive and abandoned hardrock mines by easing

requirements of the Clean Water Act and certain other environmental laws as an

incentive to persons carrying out such projects. The committee also approved a bill

to enhance the security of wastewater treatment works facilities by encouraging

operators to assess security vulnerabilities and assisting security improvement

projects (S. 2781).

Legislation to authorize funding for clean water infrastructure projects received

attention in the 109th Congress, as it has for several years, but no legislation was

enacted. At issue is how the federal government will help states and cities meet

needs to rebuild, repair, and upgrade wastewater treatment plants, especially in view

of costs that are projected to be as high as $390 billion over the next two decades. In

July 2005, the Senate Environment and Public Works Committee approved S. 1400,

authorizing federal funds for water quality and drinking water State Revolving Fund

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programs. The Senate did not take up this bill. In May 2005, the House

Transportation and Infrastructure Committee approved bills to reauthorize funding

for two other related CWA programs: H.R. 624, to reauthorize Section 221 of the

act and provide $1.5 billion over six years for sewer overflow projects, and H.R.

1359, to extend Section 220 of the act, authorizing a pilot program for alternative

water source projects. The House did not take up either of these bills.

The hurricanes that damaged large areas of the U.S. Gulf Coast in 2005 were a

major focus of congressional attention. One area of interest has been restoring public

services that were disabled by the storms, including water infrastructure facilities that

experienced flooding and wind damage. Even more than a year after the storms,

states and EPA continue to assess needs to repair or rebuild these facilities. On

September 27, 2005, the Senate passed a bill intended to streamline delivery of funds

through existing EPA programs to repair storm-damaged sewage treatment and

drinking water plants (S. 1709). No further action occurred on this bill. (For

information, see CRS Report RS22285, Hurricane-Damaged Drinking Water and

Wastewater Facilities: Impacts, Needs, and Response, by Claudia Copeland.)

Water infrastructure funding also has been an issue in the context of the federal

budget and appropriations. The President’s FY2007 budget requested $687.6 million

for clean water SRF grants, which is 22% less than was appropriated in FY2006 and

37% below the FY2005 funding level. On May 18, 2006, the House passed H.R.

5386 (H.Rept. 109-465), which provided the requested level of $687.6 million for

Clean Water SRF grants. The Senate Appropriations Committee approved the same

funding level for clean water SRF grants when it reported H.R. 5386 on June 29

(S.Rept. 109-275). Both bills include funds for congressionally earmarked project

grants ($200 million in the House bill, and $210 million in the Senate bill), which the

Administration did not request. Advocates of the SRF program (especially state and

local government officials) contended that the cuts will impair their ability to carry

out needed municipal wastewater treatment plant improvement projects.

Administration officials responded that cuts for the SRF in FY2007 were necessary

because Congress boosted funds above the requested level in FY2005 and 2006.

Final action on this FY2007 appropriation bill did not occur before the 109th

Congress adjourned sine die in December, thus carrying over this legislative activity

until the 110th Congress. (For additional information, see CRS Report RL33466,

Water Quality: Implementing the Clean Water Act, by Claudia Copeland.)

Safe Drinking Water

(By Mary Tiemann, Specialist in Environmental Policy, 7-5937)

The Safe Drinking Water Act (SDWA) is the principal federal statute regulating

the quality of water provided by public water systems. EPA has put in place

regulations covering 91 contaminants, and more rules are pending. Public water

systems are required to test and, if needed, treat their water to comply with the

standards and treatment requirements contained in these regulations.

SDWA issues that received attention in the 109th Congress included the ability

of water systems to finance projects needed to comply with drinking water standards

(such as the arsenic and disinfection byproduct standards), and drinking water

problems caused by unregulated contaminants, such as methyl tertiary butyl ether

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(MTBE) and perchlorate (the key ingredient in solid rocket fuel). (See the MTBE

discussion in the section below on “Leaking Underground Storage Tanks.”) An issue

in the first session was whether to exempt from regulation the injection into

underground drinking water sources fluids that are used for hydraulic fracturing

related to oil and gas production. The Energy Policy Act of 2005, P.L. 109-58,

Section 322, amended SDWA to exempt all fracturing fluids, except diesel fuel, from

regulation. (See CRS Report RL32873, Key Environmental Issues in the Energy

Policy Act of 2005 (P.L. 109-58, H.R. 6), coordinated by Brent D. Yacobucci.)

Perchlorate contamination also received congressional attention. House-passed

H.R. 186 and H.R. 18 would have authorized remediation of perchloratecontaminated water in certain California communities. H.R. 4798/S. 2298 would

have authorized grants for remediating California water supplies contaminated by

perchlorate and for developing perchlorate cleanup technologies. These companion

bills also expressed the sense of Congress that EPA should set a drinking water

standard for perchlorate. H.R. 213 would have required EPA to set a standard for

perchlorate in 2007. EPA has not determined whether regulation is needed, citing

uncertainties regarding perchlorate’s health risk and occurrence, and concern over the

cost of treatment. In early 2005, the National Research Council (NRC) issued a

comprehensive review of the health effects of perchlorate ingestion and made several

recommendations to EPA regarding its draft perchlorate risk assessment. EPA has

adopted the NRC’s recommended reference dose for perchlorate, which would

inform the standard-setting process, and translates to a drinking water equivalent

level of 24.5 parts per billion. However, new studies raise questions about what level

of perchlorate exposure might be safe, which could further complicate EPA standardsetting efforts. (See CRS Report RS21961, Perchlorate Contamination of Drinking

Water: Regulatory Issues and Legislative Actions, by Mary Tiemann.)

An ongoing issue concerns the ability of public water systems, especially small

systems, to construct treatment facilities and improve infrastructure to comply with

SDWA standards and ensure the safety of water supplies. In 1996, Congress created

a drinking water state revolving loan fund (DWSRF) program to help systems finance

projects needed to meet standards and address health risks. For FY2006, in P.L. 10954, Congress provided $837.5 million for the DWSRF program. H.R. 5386, as

passed by the House and reported in the Senate, included $841.5 million for FY2007,

as requested.

Despite this program, most surveys indicate that an infrastructure funding gap

will continue to grow as the number of federal drinking water standards grows and

the nation’s water infrastructure ages. EPA’s 2003 needs survey indicates that water

systems require a capital investment of $277 billion over 20 years. To address this

issue, the 109th Congress considered several bills, but none was enacted. The Senate

Committee on Environment and Public Works reported S. 1400, a water

infrastructure financing bill, which would have increased funding authority for the

drinking water and wastewater SRF programs. Senate-passed S. 1709 would have

added flexibility to the these SRF programs to facilitate their use to repair water and

wastewater systems damaged by Hurricane Katrina. (For more information on

SDWA issues and legislative action, see CRS Report RL33549, Safe Drinking Water

Act: Issues in the 109th Congress, by Mary Tiemann. For additional information on

water infrastructure issues, see CRS Report RL31116, Water Infrastructure Needs

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and Investment: Review and Analysis of Key Issues, by Claudia Copeland and Mary

Tiemann.)

Leaking Underground Storage Tanks

(By Mary Tiemann, Specialist in Environmental Policy, 7-5937)

Leaks from underground storage tanks (USTs), especially tanks containing

petroleum, have been a major source of contamination for groundwater and drinking

water supplies. In 1984, Congress established a leak prevention, detection, and

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

address this problem. With few exceptions, USTs that store petroleum or hazardous

chemicals must comply with the leak prevention, detection, and cleanup requirements

of Subtitle I (42 U.S.C. 6901, et seq.).

In 1986, Congress created the Leaking Underground Storage Tank (LUST) Trust

Fund to help EPA and states cover the costs of responding to leaking petroleum

USTs in cases where tank owners fail to clean up releases. States use most of their

share of the annual LUST Trust Fund appropriation to oversee corrective actions

performed by responsible parties. Roughly one-third of the LUST money that states

receive typically is used for cleaning up abandoned tank sites and undertaking

emergency responses. EPA uses its portion of the appropriation primarily to oversee

cooperative agreements with states, implement the LUST corrective action program

on Indian lands, and support state and regional offices. The LUST Trust Fund is

supported by a 0.1cent per gallon gas tax; as of November 2006, the fund balance

exceeded $2.6 billion.

For FY2006, Congress provided roughly $72 million (after rescissions) from the

LUST Trust Fund for EPA and states to administer the LUST cleanup program.1 For

FY2007, the House approved and the Senate Appropriations Committee

recommended $72.8 million, as requested.

Although much progress has been made in the LUST cleanup program, roughly

114,000 leaking tank sites still require remediation, and states have faced several

challenges. A key issue is that cleanup costs have increased because of the presence

of methyl tertiary butyl ether (MTBE), which has been detected at thousands of

LUST sites. This gasoline additive has been used to cut air pollution from auto

emissions.2 However, MTBE is very water soluble and, once released, tends to travel

farther than conventional gasoline, making it more likely to reach water supplies and

more costly to remediate. Another issue is that most states have not had adequate

resources to fully enforce UST leak prevention regulations. States have urged

Congress to increase trust fund appropriations for cleanup activities and to allow the

fund to be used to administer the leak prevention program.

1

Congress provided an additional $8 million in P.L. 109-148 and $7 million in P.L. 109-234

in emergency appropriations for cleaning up releases from tanks damaged by Hurricanes

Katrina and Rita.

2

As discussed above in the section on air quality, MTBE has been used widely to meet the

1990 Clean Air Act requirement that oxygenated gasoline must be used in areas that fail to

meet the federal ozone air quality standard.

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The 109th Congress made substantial changes to the federal UST program in the

Energy Policy Act of 2005 (P.L. 109-58, H.R. 6). Title XV, Subtitle B, of the act

comprised the Underground Storage Tank Compliance Act (USTCA), which added

new leak prevention and enforcement provisions and imposed multiple new

requirements on states, EPA, and tank owners. To better prevent and detect leaks,

the USTCA requires EPA, or states that receive funding under Subtitle I, to conduct

UST compliance inspections every three years. The act also requires states to (1)

comply with EPA guidance prohibiting fuel delivery to ineligible tanks, (2) develop

training requirements for UST operators and individuals responsible for tank

maintenance and spill response, (3) prepare compliance reports on governmentowned tanks in the state, and (4) ensure that groundwater protection measures are

met by UST manufacturers and installers. The Energy Policy Act extended the gas

tax that supports the LUST Trust Fund through March 2011 and removed the Clean

Air Act oxygenated fuel requirement that promoted greater use of MTBE.

Congress also took steps to make more LUST Trust Fund resources available

to support implementation of the UST leak prevention and LUST cleanup programs.

The USTCA authorized the appropriation of $200 million from the trust fund

annually for six years for EPA and states to address leaks involving MTBE or

renewable fuels, and another $200 million annually for six years for EPA and states

to administer the general LUST cleanup program.3 The USTCA further authorized

trust fund appropriations of $155 million annually for various UST and LUST

program purposes, including inspections, operator training, delivery prohibition, and

other leak prevention and compliance activities.

Although the USTCA authorized LUST Trust Fund appropriations for EPA and

states to administer and enforce new and existing leak prevention requirements of

Subtitle I, the tax extension language in P.L. 109-58 prohibited the use of the trust

fund for any new purposes (§1362). Consequently, the Energy Policy Act imposed

multiple new requirements on the states but prohibited the use of the trust fund to

support state implementation efforts. To address this issue, the House and Senate

passed H.R. 6131 to amend the Internal Revenue Code to allow the LUST Trust Fund

to be used for the purposes specified in the USTCA. H.R. 6131 was sent to the

President for signature on December 11, 2006. (For more information, see CRS

Report RS21201, Leaking Underground Storage Tanks: Program Status and Issues,

by Mary Tiemann; CRS Report RL32865, Renewable Fuels and MTBE: A

Comparison of Provisions in the Energy Policy Act of 2005 (P.L. 109-58 and H.R.

6), by Brent D. Yacobucci, Mary Tiemann, and James E. McCarthy; and CRS Report

RL32787, MTBE in Gasoline: Clean Air and Drinking Water Issues, by James E.

McCarthy and Mary Tiemann.)

3

P.L. 109-168 made technical corrections to the Energy Policy Act of 2005. Regarding UST

provisions, it revised the authorization of appropriations for Subtitle I from FY2005-FY2009

to FY2006-FY2011.

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Superfund and Brownfields

(By Mark Reisch, 7-7255, and Jonathan Ramseur, 7-7919, Analysts in Environmental

Policy)

The Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA, 42 U.S.C. 9601-9675) established the Superfund program to clean up

contamination at sites that pose significant threats to human health and the

environment. At federal facilities, the federal agency determined to have caused the

contamination pays for the cleanup out of its budget, subject to appropriations by

Congress. Although Potentially Responsible Parties (PRPs) are liable for cleanup

costs at private sector sites, EPA’s Superfund account pays for the cleanup of sites

where no financially viable responsible party can be identified or located.

The adequacy of funding to clean up Superfund sites has been a longstanding

issue. Findings of independent studies that cleanup has been underfunded, and the

declining trend in completing construction of cleanup remedies, have motivated

support for greater resources. As passed by the House on May 18, 2006, the FY2007

Interior, Environment, and Related Agencies appropriations bill (H.R. 5386, H.Rept.

109-465) would provide a total of $1.26 billion for EPA’s Superfund account (prior

to transfers to other accounts). This amount is $14.8 million more than the FY2006

appropriation, but $2.1 million less than the President’s FY2007 request. Of the total

amount included in the House bill for the Superfund account, $832.9 million would

be for “actual” (i.e., physical) cleanup of contaminated sites, $1 million less than the

FY2006 appropriation and $10 million more than the President’s FY2007 request.

The Senate Appropriations Committee reported (S.Rept. 109-275) a version with

amounts that were very similar to those passed by the House.

In earlier years, general Treasury revenues on average accounted for 17% of the

total funding for the Superfund program, and the balance of the appropriation came

from a dedicated trust fund supported by taxes on industry. Authority for collecting

these taxes expired at the end of 1995, and the balance of the trust fund declined from

a high of $3.8 billion in FY1997 to essentially zero in FY2004. Cost recoveries,

penalties, and interest do continue to contribute some revenues to the trust fund.

However, these revenues have been relatively small, resulting in the bulk of the

funding being provided from general Treasury revenues. There has been ongoing

interest among some Members of Congress in reinstating Superfund taxes on industry

to reduce the reliance on general Treasury revenues, and at least three bills were

introduced to reinstate the taxes, none of which received committee action (H.R.

3584, H.R. 4199, S. 3503). (See CRS Report RL31410, Superfund Taxes or General

Revenues: Future Funding Options for the Superfund Program, by Jonathan L.

Ramseur, Mark Reisch, and James E. McCarthy.)

Members introduced a number of bills in both sessions that addressed various

cleanup issues under Superfund. One received congressional action: S. 1848, which

would have encouraged cleanup at abandoned mines, was reported from the Senate

Environment and Public Works Committee on September 27, 2006 (S.Rept. 109351) but was not brought to the floor. Two other bills also dealt with the cleanup of

abandoned mines (H.R. 1265, H.R. 1266). One bill, H.R. 2211, would have

exempted gasoline service station dealers from liability for cleanup of waste oil.

Three bills addressed health hazards from lead-based paint, giving priority

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consideration to Superfund sites in awarding federal grants for remediation of this

substance (H.R. 433, H.R. 434, S. 255). Members offered two bills to exclude

manure from the definition of hazardous substance (H.R. 4341, S. 3681).

After Hurricanes Katrina and Rita in 2005, at least six bills were introduced to

address the use of Superfund authorities to respond to public health threats from

releases of hazardous substances that may have occurred during the two storms and

subsequent flooding (H.R. 3958, H.R. 4139, H.R. 4481, S. 1765, S. 1836, S. 1925).

Two resolutions also were introduced expressing the sense of the House and Senate

that the crisis of Hurricane Katrina should not be used as justification to waive or

relax environmental requirements in order to hasten redevelopment (H.Res. 477,

S.Res. 261). (For additional information on Superfund, see CRS Report RL33426,

Superfund: Overview and Selected Issues, by Jonathan L. Ramseur and Mark

Reisch.)

Brownfield Issues. Amendments to CERCLA in 2002 (P.L. 107-118) also

authorize EPA to provide assistance to states and tribes for the cleanup of abandoned,

idled, or underutilized commercial and industrial sites, commonly referred to as

“brownfields.” Although brownfields are less contaminated than Superfund sites,

they often require cleanup to make them safe for redevelopment. The House FY2007

Interior appropriations bill, noted above, approved the President’s FY2007 request

of $163.3 million for EPA’s Brownfields program, a slight increase above the

FY2006 appropriation of $162.5 million (after rescissions). The version of H.R.

5386 that was reported by the Senate Appropriations Committee (S.Rept. 109-293)

also provided $163.3 million.

Funding authorization for EPA’s Brownfields Program expired at the end of

FY2006. On July 28, 2006, the House Committee on Transportation and

Infrastructure reported H.R. 5810 (H.Rept. 109-608, Part 1), which would have

extended the authorization at the same levels through 2012. The Energy and

Commerce Committee shared jurisdiction of the bill but took no action on it.

The Department of Housing and Urban Development (HUD) also has a

Brownfields Program, which emphasizes economic development projects and the

increase of business and job opportunities for low- and moderate-income persons.

The Administration has sought to end this HUD program each year since the FY2004

budget request, but Congress has appropriated $25 million, $24 million, and $10

million in FY2004, 2005, and 2006, respectively. For FY2007, however, the

appropriations bill for HUD and other agencies that passed the House, and that was

reported by the Senate Appropriations Committee, provided no funding for the

program (H.R. 5576, H.Rept. 109-495, S.Rept. 109-293).

During consideration of H.R. 5576 on the House floor, Members agreed to an

amendment offered by Representative Gary Miller (H.Amdt. 1013) to increase the

HUD Community Development Fund by $15 million, coupled with a $15 million

offset to another HUD account. Supporters of the amendment stated that the funds

would allow the HUD Brownfields program to continue, but the bill’s language did

not explicitly state the purpose of the increase.

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If Congress ultimately eliminates funding for HUD’s Brownfields program,

owners of brownfields properties still may be eligible to compete for economic

redevelopment assistance provided through other HUD programs (e.g., Community

Development Block Grant Program). Moreover, the House report also earmarked

$700,000 for two specified brownfield sites, and the Senate report earmarked

$1,450,000 for seven named brownfield sites, despite the lack of funding for a

comprehensive program to address such needs.

In addition to funding, the 109th Congress considered bills addressing the

cleanup and redevelopment of brownfields. In the first session, P.L. 109-59 (H.R.

3) reauthorized funding for federal surface transportation programs and authorized

a pilot program to support planning activities for highway and public transportation

projects, including brownfields redevelopment planning. As passed by the House at

the end of the first session, H.R. 280 would have made HUD brownfields grants

more accessible to smaller communities; the Senate did not take up the bill.

On December 9, 2006, Congress passed H.R. 6111, a bill to amend the Internal

Revenue Code, one provision of which restored the brownfields tax incentive that

had expired at the end of 2005. The provision, section 109, allows brownfield

cleanup costs to be deducted in the same year they are incurred, rather than being

expensed over a period of years. It also expanded the definition of hazardous

substances covered by the tax break to include sites contaminated by petroleum

products. The provision was made retroactive to the time of its expiration and was

extended to December 31, 2007. (For additional information, see CRS Report

RS22502: Brownfields in the 109th Congress, by Mark Reisch.)

Surface Transportation and Environment

(By Linda Luther, Environmental Policy Analyst, 7-6852)

On August 10, 2005, President Bush signed P.L. 109-59 (H.R. 3), the Safe,

Accountable, Flexible, and Efficient Transportation Equity Act of 2005: A Legacy

for Users (SAFETEA-LU, also known as SAFETEA). The act authorizes federal

surface transportation programs (highway, highway safety, and transit programs)

undertaken by the U.S. Department of Transportation’s (DOT’s) Federal Highway

Administration (FHWA) and Federal Transit Administration (FTA) through FY2009.

During the reauthorization process, a number of 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 possible costs

associated with addressing those impacts) and the impact that compliance with

environmental requirements can have on project delivery.

The key environmental provisions in SAFETEA generally do one of the

following: authorize funding to eliminate, control, mitigate, or minimize

environmental impacts associated with surface transportation programs or projects;

or specify procedures required to be undertaken to expedite compliance with certain

environmental requirements. With regard to the latter, environmental provisions in

SAFETEA that have garnered the most attention and debate are those that change the

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procedures that DOT will be required to follow to comply with the Clean Air Act’s

(42 U.S.C. § 7401 et seq.) conformity requirements; to “streamline” compliance with

environmental review requirements of the National Environmental Policy Act

(NEPA, 42 U.S.C. § 4321 et seq.); and to streamline compliance with “Section 4(f)”

requirements regarding the use of publicly owned parks and recreation areas, wildlife

and waterfowl refuges, and publicly or privately owned historic sites. (For additional

information on these issues, see CRS Report RL33057, Surface Transportation

Reauthorization: Environmental Issues and Legislative Provisions in SAFETEA-LU

(H.R. 3, P.L. 109-59), by Linda Luther, and CRS Report RL32106, Transportation

Conformity Under the Clean Air Act: In Need of Reform? by James E. McCarthy.)

Chemicals: Security and Regulatory Issues

(By Linda Schierow, Specialist in Environmental Policy, 7-7279)

The 109th Congress provided three years of authority for federal oversight of

security measures that might be taken by certain privately owned facilities storing or

handling large quantities of potentially dangerous chemicals. Section 550 of P.L.

109-295 (providing FY2007 appropriations to the Department of Homeland Security

[DHS]) directs DHS to issue, within six months of enactment, interim final

regulations establishing risk-based performance standards for enhancing security

against acts of terrorism at chemical facilities that present high-security risks, and

requiring such facilities to prepare vulnerability assessments and to prepare and

implement site security plans. DHS must review and approve assessments and plans,

but facility owners will be allowed to develop site-specific security measures to meet

performance standards. DHS also is authorized to inspect facilities, and in the event

that a facility fails repeatedly to comply with requirements, the Department may issue

an order to cease operations. A civil penalty of $25,000 is authorized to be applied

to any facility that fails to comply with a DHS order.

P.L. 109-295 leaves unresolved certain issues that were addressed by H.R. 5695,

as reported by the House Homeland Security Committee on September 29, 2006, and

S. 2145, as reported by the Senate Homeland Security and Governmental Affairs

Committee on September 11, 2006, which were not enacted. They would have

provided DHS with all the same authority conferred by P.L. 109-295, but these bills

also would have authorized DHS oversight of facilities presenting lower security

risks, as well as of wastewater treatment plants, public water supplies, and port

facilities. Criminal penalties could have been imposed on non-compliant facility

owners or operators, and an office would have been established within DHS to

implement the bills’ provisions. S. 2145 (but not H.R. 5695) would have required

facilities to develop emergency response plans and would have required reports on

DHS implementation by the Government Accountability Office. A particularly

controversial difference between the bills was the provision in the House bill that

would have allowed the DHS Secretary to require a high-risk facility to use

inherently safer technology (IST), if the Secretary determined that it would

significantly reduce the consequences of terrorist actions, would be feasible, and

would not significantly impair the ability of the owner to continue in business. The

Senate bill did not address IST.

Other bills that were not enacted aimed to (1) require community drinking water

systems and wastewater treatment plants that are using hazardous gaseous chemicals

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to switch to IST (S. 2855), (2) enhance security for agricultural businesses (S.

2052/H.R. 713) and wastewater treatment facilities (S. 1995, S. 2781), and (3) secure

supplies of ammonium nitrate, an explosive (H.R. 3197/S. 1141, H.R. 1389). S.

2781 was reported by the Senate Committee on Environment and Public Works on

September 21, 2006, and H.R. 3197 was approved by the House Homeland Security

Committee on June 14, 2006. Some of the provisions of H.R. 3197/S. 1141 were

incorporated as an amendment into S. 2145 on June 15, 2006. (Also see CRS Report

RL31530, Chemical Facility Security, and CRS Report RL33447, Senate Proposals

to Enhance Chemical Facility Security, both by Linda-Jo Schierow, and CRS Report

RL33043, Legislative Approaches to Chemical Facility Security, by Dana A. Shea.)

Legislation that would allow implementation of the Stockholm Convention on

Persistent Organic Pollutants (POPs) also was considered by the 109th Congress. The

Stockholm Convention bans or severely restricts production, trade, and use of 12

POPs, including DDT, PCBs, and other chemicals that generally are no longer in

U.S. commerce. Although the President signed the treaty, enabling legislation must

be passed to enable U.S. ratification. Five bills were introduced but none were

enacted during the 109th Congress. H.R. 3849 and S. 2042 would have amended the

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which governs

pesticidal uses of the chemicals. H.R. 4591, H.R. 4800, and H.R. 6421 (introduced

on December 8, 2006, the last day of the 109th Congress) would have amended the

Toxic Substances Control Act (TSCA), which more generally authorizes EPA

regulation of chemicals in U.S. commerce. The Administration and the chemical

industry have been urging Congress to enact implementing legislation for several

years, but particular legislative provisions have been controversial, especially with

regard to proposed changes to EPA’s existing regulatory authority for POPs under

TSCA and FIFRA. (See CRS Report RS22379, Persistent Organic Pollutants

(POPS): Fact Sheet on Three International Agreements, and CRS Report RL33336,

Implementing International Agreements on Persistent, Organic Pollutants (POPs):

Proposed Amendments to the Toxic Substances Control Act, both by Linda-Jo

Schierow.)

Defense Environmental Cleanup and Other Issues

(By David Bearden, Environmental Policy Analyst, 7-2390)

The Department of Defense (DOD) is responsible for cleaning up contamination

and complying with other environmental requirements on approximately 29 million

acres of military lands in the United States. In addition to these activities, the

Department of Energy (DOE), as part of its overall responsibility for U.S. nuclear

weapons programs, is responsible for cleaning up contamination on former nuclear

weapons sites. In its first session, the 109th Congress enacted FY2006 appropriations

for these activities, including funding for the cleanup of closed military bases (P.L.

109-114, H.R. 2528), active installations and other former military properties (P.L.

109-148, H.R. 2863), and nuclear weapons sites (P.L. 109-103, H.R. 2419). FY2006

defense authorization legislation also was enacted in the first session (P.L. 109-163,

H.R. 1815), including specific funding authorizations for cleanup of these lands.

Attention in the second session focused on authorization and appropriation of

funds for FY2007. The National Defense Authorization Act for FY2007 (P.L. 109364, H.R. 5122) authorized funding for national security activities, including cleanup

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on military lands and nuclear weapons sites. In addition to authorizing funding, the

law included numerous environmental provisions, such as a requirement for a study

of the past disposal of chemical and conventional munitions in the ocean. (See CRS

Report RL33432, U.S. Disposal of Chemical Weapons in the Ocean: Background

and Issues for Congress, by David M. Bearden.) The law also included a

requirement for DOD to prepare a comprehensive plan for cleaning up munitions on

the land according to specific time frames. These time frames constitute non-binding

goals, rather than enforceable requirements. Considering the magnitude of cleanup

challenges at munitions sites, meeting these time frames is likely to be difficult at

best, and may be economically or technically infeasible at some sites.

The 109th Congress adjourned without finalizing FY2007 appropriations for

defense-related environmental activities, but it did enact a continuing resolution (P.L.

109-383, H.J.Res. 102) that provided funding for these and other military activities,

as well as other federal agencies, through February 15, 2007. Earlier in the second

session, the House passed the FY2007 Military Quality of Life, Veterans Affairs, and

Related Agencies appropriations bill (H.R. 5385, H.Rept. 109-464) on May 19, 2006,

which included funding for the cleanup of active military installations, closed bases,

and other former military lands. The Senate passed its version of H.R. 5385 (S.Rept.

109-286) on November 14, 2006, including funding for cleanup of closed bases, but

not for other military sites.

In the Senate, cleanup of active installations and former military lands not

closed under a consolidated base closure round is funded within the annual DOD

appropriations bill. Funding for the cleanup of these sites in FY2006 was included

in the final DOD appropriations bill, in accordance with Senate subcommittee

jurisdiction. For FY2007, the 109th Congress had planned to alternate this

arrangement and defer to House subcommittee jurisdiction. Accordingly, the

Department of Defense Appropriations Act for FY2007 (P.L. 109-289, H.R. 5631)

did not include any funding for cleanup of military sites. Funding for this activity

would have been provided within the final version of the Military Quality of Life

appropriations bill, if it had been enacted prior to the adjournment of the 109th

Congress.

The 109th Congress also did not finalize FY2007 appropriations for DOE’s

cleanup of nuclear weapons sites. Earlier in the second session, the House passed the

FY2007 Energy and Water Development appropriations bill (H.R. 5427, H.Rept.

109-474) on May 24, 2006, which included this funding. The Senate Appropriations

Committee reported its version of this bill (S.Rept. 109-274) on June 29, 2006.

Further action on the bill did not occur, and funding for the cleanup of nuclear

weapons sites was provided through February 15, 2007, under the continuing

resolution noted above. (See the “Environmental Management” section in CRS

Report RL33346, Energy and Water Development: FY2007 Appropriations,

coordinated by Carl E. Behrens.)

The adequacy of funding to clean up contamination on military lands is a longstanding issue. Although DOD is required to clean up all contaminated lands within

its jurisdiction, closed bases have been of particular concern because cleanup

generally must occur before the land can be transferred for civilian use. Most of the

land on bases closed in past rounds from 1988 through 1995 has been cleaned up and

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transferred for redevelopment. However, some of the land has yet to be cleaned up

and has been awaiting transfer for many years — over a decade in some instances.

The closure of additional bases approved in the 2005 round will increase the

inventory of military properties slated for civilian reuse. There has been rising

concern among affected communities about the extent to which contamination on

these properties could delay or affect the potential for economic redevelopment to

replace lost jobs. (See CRS Report RS22065, Military Base Closures: Role and

Costs of Environmental Cleanup, by David M. Bearden.)

Another issue has been whether DOD requests broader environmental

exemptions than provided in current law are necessary to preserve military training

capabilities. The 107th and 108th Congresses enacted exemptions from certain wildlife

protection requirements that DOD requested. DOD also has requested exemptions

from certain air quality and hazardous waste cleanup requirements each year since

FY2003, and requested them again in its FY2007 defense authorization proposal.

There was considerable public concern that these exemptions could result in harmful

exposure to air pollutants and hazardous substances, and the109th Congress did not

include these exemptions in either defense authorization or appropriations legislation.

(See CRS Report RS22149, Exemptions from Environmental Law for the Department

of Defense: An Overview of Congressional Action, by David M. Bearden.)

The adequacy and pace of cleanup at nuclear weapons sites also is a longstanding issue. DOE has disposed of substantial volumes of radioactive and

hazardous wastes and remediated contamination in buildings, soil, and groundwater

at many nuclear weapons sites. However, sites with the greatest cleanup challenges

are not scheduled for completion until more than a decade from now, with the last

sites not expected to be complete until 2035. Among the most complex and costliest

needs are the removal and disposal of high-level radioactive wastes stored in

underground tanks at three sites, including Hanford in Washington State, Savannah

River in South Carolina, and the Idaho National Laboratory. The extent to which

these wastes can be removed safely from the tanks to prepare them for closure has

been of particular concern among Members of Congress, affected states, and public

health and environmental advocates. (See CRS Report RS21988, Radioactive Tank

Waste from the Past Production of Nuclear Weapons: Background and Issues for

Congress, by David M. Bearden and Anthony Andrews.)

Alternative Fuels and Advanced Technology Vehicles

(By Brent Yacobucci, Specialist in Environmental Policy, 7-9662)

The development of alternative fuels and advanced technology vehicles has

emerged as a key issue in the 109th Congress. Advanced technology vehicles, such

as hybrids and fuel cell vehicles, have the potential to significantly increase

passenger-vehicle fuel economy and reduce vehicle emissions. However, mass

production of such vehicles is currently cost-prohibitive, and many technical and cost

barriers are associated with producing, storing, and delivering these alternative fuels.

Therefore, there was interest in Congress and the Administration in legislatively

supporting alternative vehicle and fuel development, and promoting their entry into

the marketplace.

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As noted above, the 109th Congress enacted comprehensive energy legislation,

similar to unfinished legislation in the 108th Congress. Signed by President Bush on

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

increased funding for hydrogen and fuel cell research, establishes tax credits for the

purchase of alternative fuel and advanced technology vehicles, and promotes

biofuels. A key component of H.R. 6, a renewable fuels standard (RFS), requires the

use of 7.5 billion gallons of renewable fuel in gasoline by 2012. Earlier versions of

the bill would have granted blenders of renewable fuels and MTBE (another gasoline

additive) a “safe harbor” from defective product liability, but these provisions were

not included in the final bill. Similar liability protection for MTBE was included in

the energy bill in the 108th Congress and was cited as one of the impediments to the

bill’s passage.

The 109th Congress enacted legislation to reauthorize federal highway and

transit programs. As discussed above, on August 10, 2005, President Bush signed

the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for

Users (P.L. 109-59, H.R. 3). Among other provisions, the highway bill reauthorizes

funding for various projects, including advanced technology and alternative fuel

transit buses. Further, the bill allows states to exempt certain alternative fuel and

high-efficiency vehicles from high occupancy vehicle (HOV) restrictions.

A key component of the Bush Administration’s environmental goals focused on

research on hydrogen fuel and fuel cells — through the Hydrogen Fuel and

FreedomCAR initiatives. For FY2006, Congress appropriated approximately $340

million for these initiatives, about $20 million below the Administration’s request

(Energy and Water Appropriations bill, P.L. 109-103). In his January 2006 State of

the Union address, President Bush also announced a new Biofuels Initiative to

promote R&D on fuels produced from biomass. The administration requested $150

million for this initiative in FY2007, a 65% increase above FY2006. However, the

109th Congress did not enact the FY2007 Energy and Water Appropriations bill. (For

further discussion, see CRS Report RL33564, Alternative Fuels and Advanced

Technology Vehicles: Issues in Congress, by Brent D. Yacobucci.)

High gasoline prices in spring 2006 led to increased interest in alternative fuels,

especially ethanol. A rapid voluntary phase-out of MTBE by refiners, along with the

transition from winter to summer air quality specifications, put a strain on gasoline

and ethanol supplies, although those pressures largely relaxed over the summer and

fall of 2006. These supply issues raised interest in simplifying U.S. gasoline supply

system, which has been criticized as a “patchwork” of federal and state regulations.

(For more information, see CRS Report RL31361, “Boutique Fuels” and

Reformulated Gasoline: Harmonization of Gasoline Standards, by Brent D.

Yacobucci.) The tight supply for ethanol raised interest by some Members in

postponing the implementation of the RFS established in P.L. 109-58. Questions

were also raised on the effects of eliminating import duties for ethanol from countries

such as Brazil.

CRS-20

Table 1. Environmental Protection Legislation Passed in

the 109th Congress

Bill

Status

Purpose

H.R. 3 (P.L. 109-59)

Signed by the President

The Safe, Accountable,

August 10, 2005

Flexible and Efficient

(H.Rept. 109-203)

Transportation Equity Act of

2005: A Legacy for Users

(SAFETEA-LU)

Among other provisions, amends

the Clean Air Act conformity

provisions and specifies

procedures to perform

environmental reviews under

NEPA for transportation

projects. Amends the DOT Act

of 1966 regarding protection of

historic sites and specifies

funding levels for projects

intended to improve air quality

and mitigate other environmental

impacts. Establishes a pilot

program that includes brownfield

planning.

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

Energy Policy Act of 2005

Signed by the President

August 8, 2005

(H.Rept. 109-190)

An omnibus energy bill. Various

environmental provisions include

expediting permitting,

amendments to the Clean Air Act

fuels requirements, funding for

MTBE cleanup, and a renewable

fuels standard (RFS).

H.R. 280

Brownfields Redevelopment

Enhancement Act

Passed the House

December 13, 2005

(H.Rept. 109-138)

Makes HUD brownfields grants

more accessible to smaller

communities.

H.R. 1721

Coastal Recreation Water

Quality and Monitoring

Passed the House

December 7, 2005

(H.Rept. 109-292)

Amends the Clean Water Act to

reauthorize coastal recreation

water quality programs (Section

406)

H.R. 1815 (P.L. 109-163)

National Defense

Authorization Act for

FY2006

Signed by the President

January 6, 2006

(H.Rept. 109-360)

Authorized FY2006 funding for

national defense programs,

including environmental cleanup

at active, closed, and other

former military installations, and

former defense nuclear weapons

sites. Did not include

exemptions from the Clean Air

Act, Solid Waste Disposal Act,

and CERCLA that DOD had

requested.

H.R. 2361 (P.L. 109-54)

Interior, Environment and

Related Agencies

Appropriations Act FY2006

Signed by the President

August 2, 2005

(H.Rept. 109-188)

Funded EPA at $7.73 billion for

FY2006 (subject to a 0.476%

across-the-board rescission and a

1% government-wide recision in

P.L. 109-148).

H.R. 2419 (P.L. 109-103)

Signed by the President

Energy and Water

November 19, 2005

Development Appropriations (H.Rept. 109-275)

Act for FY2006

Appropriated FY2006 funding

for environmental cleanup at

former defense nuclear weapons

sites.

CRS-21

Bill

Status

Purpose

Signed by the President

H.R. 2528 (P.L. 109-114)

November 30, 2005

Military Quality of Life,

(H.Rept. 109-305)

Military Construction,

Veterans Affairs and Related

Agencies Appropriations Act

for FY2006

Appropriated FY2006 funding

for national defense programs,

including environmental cleanup

at closed military installations.

H.R. 2863 (P.L. 109-148)

Department of Defense

Appropriations Act for

FY2006

Signed by the President

December 30, 2005

(H.Rept 109-359)

Appropriated FY2006 funding

for national defense programs,

including funding for cleanup of

active and former military

installations. Included a 1%

government-wide rescission and

reallocated $8 million to EPA for

responding to leaking

underground storage tanks in

areas affected by Hurricanes

Katrina and Rita.

H.R. 3893

Gasoline for America’s

Security Act of 2005

Passed the House

October 7, 2005

(H.Rept. 109-244)

A bill to expedite the

construction of new U.S. refining

capacity. Among other

provisions, the bill would

streamline federal permitting and

limit the number of fuel blends

nationwide.

H.R. 3963 (P.L. 109-137)

Long Island Sound

Authorization of

Appropriations

Signed by the President

December 22, 2005

(H.Rept. 109-293)

Amends the Clean Water Act to

reauthorize the Long Island

Sound Program (Sec. 119)

H.R. 4939 (P.L. 109-234)

Emergency Supplemental

Appropriations Act for

FY2006

Signed by the President

June 15, 2006

(H.Rept. 109-494)

Increased EPA’s FY2006

appropriation by $13 million for

activities to protect public health

and respond to leaking

underground tanks in areas

affected by Hurricane Katrina

and other hurricanes in the 2005

season.

H.R. 5122 (P.L. 109-364)

National Defense

Authorization Act for

FY2007

Signed by the President

October 5, 2006

(H.Rept. 109-702)

Authorized FY2007funding for

national defense programs,

including cleanup on military

lands and former nuclear

weapons sites. Included

numerous other environmental

provisions, but did not include

exemptions from air quality and

cleanup requirements requested

by DOD

CRS-22

Bill

Status

Purpose

H.R. 5385

FY2007 Military Quality of

Life, Veterans Affairs, and

Related Agencies

appropriations bill

Passed the House

May 19, 2006

(H.Rept. 109-464)

Passed the Senate

November 14, 2006

(S.Rept. 109-286)

House bill would have

appropriated FY2007 funding for

military and other activities,

including cleanup on all military

lands. Senate bill would have

funded cleanup on closed bases

but not other military lands.

Neither version included

exemptions from air quality and

cleanup requirements DOD

requested.

H.R. 5386

FY2007 Interior,

Environment, and Related

Agencies appropriations bill

Passed the House

May 18, 2006

(H.Rept. 109-465)

Would have appropriated

FY2007 funding for the

Environmental Protection

Agency (EPA) and numerous

other agencies.

H.R. 5427

FY2007 Energy and Water

Development appropriations

bill

Passed the House

May 24, 2006

(H.Rept. 109-474)

Would have appropriated

FY2007 funding for the

Department of Energy’s cleanup

of former nuclear weapons sites.

H.R. 5441 (P.L. 109-295)

Department of Homeland

Security (DHS)

Appropriations Act for

FY2007

Signed by the President

October 4, 2006

(H.Rept. 109-699)

Funds DHS. Authorizes DHS to

regulate high-risk chemical

facilities to enhance security

against terrorism. DHS authority

to regulate ends October 4, 2009.

H.R. 5970

Estate Tax and Extension of

Tax Relief Act of 2006

Passed the House

July 29, 2006

(No written report);

failed in Senate on cloture

motion August 3, 2006.

Would extend until the end of

2007 the tax incentives for

brownfield remediation costs that

expired at the end of 2005.

H.R. 6121

( P.L. 109-392)

Lake Pontchartrain Basin

reauthorization

Signed by the President

December 12, 2006

(No written report)

Amends the Clean Water Act to

reauthorize the Lake

Pontchartrain Basin program

(Sec. 121)

S. 1709

Gulf Coast Emergency

Water Assistance Act

Passed the Senate September

27, 2005 (no written report)

Adds flexibility to the clean

water and drinking water state

revolving fund programs to

facilitate use of funds to repair

water infrastructure damaged by

Hurricane Katrina or related

conditions.

Note: This table includes bills enacted during the 109th Congress, as well as bills passed by either

the House or Senate but not enacted.