97020: Environmental Protection Legislation in the 105th Congress

CONTENTS FOR THIS SECTION

Reauthorizing Superfund (by Mark Reisch)
Defense Cleanup and Environmental Programs (by David Bearden)
Reauthorizing the Clean Water Act (by Claudia Copeland)

Funding
Nonpoint Source Pollution
Wetlands

Reauthorizing Superfund

by Mark Reisch

The reauthorization of Superfund, formally know as the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA and the principal federal law for cleaning up spills and other discharges of hazardous substances, may be on the legislative agenda again for the 106^th Congress. Controversies over Superfund's liability provisions, cleanup standards, and natural resource damages continued to be unresolved during the 105^th Congress. In the Senate, the Environment and Public Works Committee reported S. 8 on May 19, 1998 (S.Rept. 105-192), but the bill was never brought to the floor. In the House, H.R. 2727 was approved at subcommittee level and forwarded to the full Transportation and Infrastructure Committee on March 11, 1998. Both bills were amended and both moved forward on mostly party line votes. The leadership in both Houses had said they would not try to pass a Superfund reform bill unless it had bipartisan support. The House Commerce Committee held a hearing on H.R. 3000 on March 5, 1998; no markup was held.

The brownfields program was created administratively by EPA to address less seriously contaminated sites. In the first session, the Taxpayer Relief Act of 1997 (H.R. 2014/P.L. 105-34, August 5, 1997) provided a $417 million tax break for cleaning up designated brownfields. This law permits cleanup costs to be deducted from current income rather than capitalized over a period of years. The 76 brownfield sites designated prior to February 1997 are eligible, as well as empowerment zones and enterprise communities, census tracts with a poverty rate above 20%, and adjacent commercial and industrial areas. The tax break ends on December 31, 2000.

The FY1999 appropriation for Superfund is $1.5 billion, the same as for FY1998 (H.R. 4194/P.L. 105-276, October 21, 1998). Similarly to FY1997, an additional $650 million is made available on October 1, 1999 (FY2000) if CERCLA is reauthorized before August 1, 1999. The Administration had requested $2.1 billion to enable EPA to attain cleanups at 900 sites by 2001. EPA's brownfields program received the full $91.3 million requested. The bill's report asks EPA to review other means of funding the brownfields program and to report to the Appropriations Committees by April 1, 1999. A related request by the Department of Housing and Urban Development for $50 million for brownfields activities was not approved; instead, $25 million was appropriated for Economic Development Grants for brownfields redevelopment projects. The appropriations bill also deletes the sunset provisions in Section 119, in order to make it possible for cleanup contractors to more easily obtain surety bonds for new cleanup projects. The report also directs EPA to "explore aggressively" the home buyout option at the Agriculture St. NPL site in New Orleans, and to report back to the Appropriations Committees by January 15, 1999. The Omnibus Appropriations bill (H.R. 4328/P.L. 105-277, October 21, 1998) contains a provision having to do with the tax treatment of a company's environmental remediation costs (10-year net operating loss carryback rules).

In the reauthorization debate, liability, remedy selection, and natural resource damages were the key sticking issues. S. 8, H.R. 2727, and H.R. 3000 would have exempted from liability most generators and transporters at landfills that had received mainly municipal solid waste and sewage sludge. They would also have excluded from liability certain small businesses, and de minimis parties contributing less than 1% of the waste. Municipal liability would have been limited, and also that of tax-exempt organizations and recyclers.

Regarding cleanup standards, the three bills would have required remedies to be based on site-specific conditions and future use. S. 8, H.R. 2727, and H.R. 3000 would have replaced CERCLA's preference for permanent treatment remedies with consideration of all cleanup options based on balancing various factors. The bills would have allowed consideration of one or a combination of remediation methods including: removal, treatment, containment, institutional controls, and natural attenuation.

The natural resource damages question focused on what limits to compensation there should be: should companies have to pay for the loss of a natural resource's unique intrinsic (non-use) values, and for the public's lost use of a resource? Also at issue was how the damage assessments should be performed.

There appeared to be general agreement to give States a larger role in carrying out the Superfund program, to increase community participation in decision-making at the sites, and to expand the brownfields program for cleaning up less seriously contaminated sites.

In line with the Administration's desire to make limited changes to CERCLA, Democratic members introduced three narrower Superfund bills: S. 1497, H.R. 3262, and H.R. 3595. Most Republican leaders opposed this approach, as well as efforts to pass a free-standing brownfields bill, or a measure that would provide limited liability relief for certain groups. (For further information, see CRS Issue Brief 97025, Superfund Reauthorization Issues in the 105th Congress.)

Defense Cleanup and Environmental Programs

by David Bearden

While Congress authorizes the majority of federal programs for multiple years, it annually authorizes programs for national defense as well as appropriating funding for each fiscal year. The Department of Defense (DOD) operates six environmental programs that address cleanup of past contamination at military facilities, compliance with environmental laws and regulations that apply to current activities, cleanup at military bases being closed, pollution prevention, natural resource conservation, and environmental technology. In addition to these activities, the Department of Energy (DOE) manages defense nuclear waste generated from the past production of atomic materials used to construct nuclear weapons and remediates contaminated sites. For FY1999, the Administration requested a total of $10.14 billion for DOD and DOE's defense-related environmental activities, which represents about 3.7% of the total request of $271.6 billion for national defense and is roughly 1.6% below the FY1998 funding level of $10.30 billion.

The President has signed into law the National Defense Authorization Act for FY1999 (P.L. 105-261). It authorizes $1.24 billion for DOD's five environmental restoration accounts and an additional $5.35 billion for DOE's management of defense nuclear waste and remediation of contaminated sites. As in past authorization legislation, the law does not specify the total amounts authorized for compliance, pollution prevention, environmental technology, conservation, and cleanup at military bases designated for closure. Rather, funding for these activities is authorized as part of larger accounts for operation and maintenance activities and base closures. The law also includes numerous environmental provisions related to military operations.

The President also has signed into law the FY1999 appropriation bills for the Department of Defense (P.L. 105-262), Military Construction (P.L. 105-237), and Energy and Water Development (P.L. 105-245). P.L. 105-262 provides a total of $1.27 billion for environmental restoration, and P.L. 105-237 sets aside nearly $698 million for cleanup at base closure sites. P.L. 105-245 allocates a total of $5.58 billion for DOE's management of defense nuclear waste and contaminated sites. As in the authorization legislation discussed above, each appropriations measure also includes several environmental provisions related to military operations.

Other legislation introduced in the 105^th Congress would have affected defense-related environmental activities. Three Superfund reform bills (H.R. 2727, H.R. 3000, and S. 8) would have altered the process of selecting cleanup remedies, which could have lowered DOD's cleanup expenses. Each bill also would have allowed qualified states to receive enhanced cleanup authority over military facilities that are on the National Priorities List, which could have complicated DOD's cleanup process by requiring the department to respond to multiple authorities. Additional legislation (S. 2064) would have prohibited the sale of decommissioned naval vessels for scrapping outside of the United States due to concerns over environmentally unsafe practices in foreign nations. While floor action on Superfund reform and vessel scrapping legislation did not occur by the adjournment of the 105^th Congress, these matters could become possible issues for consideration in the 106^th Congress.

(CRS Report 97-790 ENR, Environmental Protection: Defense Related Programs, discusses relevant provisions in each of the bills mentioned above.)

Reauthorizing the Clean Water Act

by Claudia Copeland

No major Clean Water Act (CWA) reauthorization legislation was introduced in the 105th Congress, and no major House or Senate committee activity occurred. Congressional committees with jurisdiction over the Act gave priority attention to other environmental issues. Thus, the CWA could present issues for the 106^th Congress; whether and how it will be considered are unclear at this time.

The Clean Water Act is the principal law governing pollution in the nation's lakes, rivers, and coastal waters and authorizing funds to aid construction of municipal wastewater treatment plants. Originally enacted in 1948 and significantly revised in 1972 (P.L. 92-500), the Act was last amended in 1987 (P.L. 100-4). Authorizations for most programs under the 1987 amendments expired Sept. 30, 1990. It has been viewed as one of the nation's most successful environmental laws in terms of achieving the statutory goals, which have been widely supported by interest groups and the public, but lately has been criticized over whether further benefits are worth the costs.

All of the CWA issues which might receive congressional attention have been open for debate for several years. What currently is at issue is how these issues are framed and whether proposed changes are seen as sustaining, strengthening, or weakening the law. When Congress does take up the Act, a number of specific issues are likely to be the core of legislative activity.

Funding. The 1987 CWA amendments established a new program of federal grants to capitalize State Water Pollution Control Revolving Funds, or state loan programs (SRFs), to aid construction of wastewater treatment facilities. The most recent survey by states and EPA estimates that total national wastewater treatment and related eligible funding needs are $139.5 billion to be spent through the year 2016. Because remaining funding needs are still so large, at issue is how to extend SRF assistance to address those needs and modify the SRF program to aid priority projects and meet the needs of small communities.

Nonpoint Source Pollution. Surveys by states and EPA report that nonpoint source pollution-- runoff from agriculture, city streets and storm sewers--is now the leading cause of water quality impairment in the United States. The 1987 CWA amendments established the first comprehensive program in the Act to address nonpoint source pollution through state management programs utilizing technical and financial assistance from EPA. At issue is the adequacy of current efforts and how to ensure that progress towards water quality goals continues to be made, while providing sufficient state and local flexibility and incentives for sources to manage, as necessary, polluted runoff.

Wetlands. How to protect the nation's remaining wetlands and regulate activities taking place in wetlands has been one of the most contentious environmental policy issues, especially in the context of the CWA which contains a key wetlands regulatory tool, a permit program in Section 404. It requires landowners or developers to obtain permits from the U.S. Army Corps of Engineers to carry out activities involving disposal of dredged or fill material into navigable waters of the United States, which include wetlands. Controversy has grown over the extent of federal jurisdiction, burdens and delay of permitting, and federal and states roles in the permitting process affecting private property. Issues that have been raised and are likely to be debated when Congress considers the Clean Water Act include: whether some wetlands are less valuable and could be accorded less stringent regulatory protection; streamlining federal regulations through statutory changes; whether activities or areas covered by federal regulation should be modified; and whether federal and state roles in implementing Section 404 should be revised. (For further information, see CRS Issue Brief 97001 Clean Water Act Reauthorization in the 105th Congress.)