97020: Environmental Protection Legislation in the 105th Congress

Solid Waste: Interstate Waste, Flow Control, and Managing Wastes (by James McCarthy)
Underground Storage Tanks (by Mary Tiemann)
Toxic Release Inventory Expansion (by Linda Schierow)
Safe Drinking Water Act: Overseeing Implementation (by Mary Tiemann)
Regulating Pesticides (by Linda Schierow)

Solid Waste: Interstate Waste, Flow Control, and Managing Wastes

by James McCarthy

The 105^th Congress adjourned without passing any legislation affecting solid waste management. Changes to the Leaking Underground Storage Tank (LUST) cleanup program and bills to exempt from hazardous waste management requirements certain wastes generated by remediation of old waste sites had been considered possible until late in the second session. The House passed changes to the LUST program (H.R. 688) on April 23, 1997. A comparable Senate bill (S. 555) was ordered reported, amended, September 23, 1998; but it never came to the floor.

Legislation affecting remediation waste was considered possible because of the interest of key Senators and the support in principle of most affected interests. On September 3, 1998, however, Senators Lott, Chafee, and Smith announced that efforts to enact such legislation would be postponed until next year.

A third issue that might have been subject to legislation -- whether states and local governments should be given authority to restrict interstate commerce by limiting solid waste imports or by designating where locally generated waste must be disposed ("flow control") -- was the subject of at least 11 bills. Except for a Senate Environment and Public Works Committee hearing, March 18, 1997, however, there was no committee action.

Solid waste issues were a major public concern for much of the last decade. Since 1988, more than two-thirds of the nation's municipal landfills have closed, and there has been substantial public interest in the incineration, recycling, and waste transport programs that have helped take their place.

The lead role in solid waste management is played by state and local governments. They decide how waste will be managed and set standards for the resulting facilities. Nevertheless, the federal government has played an increasing role in solid waste management, setting minimum national standards for landfills and incinerators under the Resource Conservation and Recovery Act and Clean Air Act, and promoting recycling through the use of federal procurement policy.

Federal court rulings have also had a profound impact on waste management programs. In a series of cases, the courts have held that shipments of waste are protected under the interstate commerce clause of the Constitution. With few exceptions, a state may not prohibit waste imports or impose fees on out-of-state waste, nor may it designate where privately collected waste must be disposed. These decisions have had a broad impact on state and local ability to plan the future management of solid waste and to finance existing waste management programs.

In overturning interstate waste and flow control laws, the courts have made clear that the Constitution does not prevent Congress itself from restricting commerce or from authorizing states or local governments to do so. What is prohibited is state or local action in the absence of congressional authorization. Bills introduced in the 105th (and earlier) Congresses would have provided that authority under specified conditions. Such legislation may be considered again in the 106^th Congress.

Underground Storage Tanks

by Mary Tiemann

In April 1997, the House passed H.R. 688, the Leaking Underground Storage Tank Amendments Act of 1997. In October 1, 1998, the Senate Environment and Public Works Committee reported similar legislation, S. 555. These bills would have broadened the uses of the Leaking Underground Storage Tank (LUST) Trust Fund to help states achieve both the leak prevention and cleanup goals of the federal underground storage tank program. In the Budget Reconciliation bill for FY1998 (P.L. 105-34), Congress restored the LUST Trust Fund tax to raise revenues and to ensure the availability of funds for the LUST cleanup program.

States have reported that leaks from underground storage tanks (USTs) are the leading source of groundwater contamination. In response, Congress established a leak prevention program in the 1984 Resource Conservation and Recovery Act (RCRA) amendments. The law directed EPA to promulgate operating requirements and technical standards for tanks. Regulations have been phased in since 1988, and all tanks must be upgraded, replaced, or closed by December 22, 1998.

In 1986, Congress again amended RCRA to establish a response program for cleaning up releases from leaking petroleum USTs and created the LUST Trust Fund to pay for the cleanup of leaks from USTs where a responsible party does not clean up a site. Trust Fund money is used primarily by EPA and states to enforce corrective actions performed by responsible parties, and also to conduct cleanups where a responsible party fails to act, or in the event of an emergency.

The money in the LUST Trust Fund has been derived primarily from a 0.1 cent-per-gallon federal tax on motor fuels; it holds roughly $1.2 billion. Congress has appropriated about one-third of the money for EPA and states to undertake corrective actions and to enforce the LUST program. On average, EPA has allocated 85% of the funds to the states and has used the rest for its program responsibilities, including administering the program on Indian lands. For FY1998, EPA requested $71.2 million for the LUST program and received $65 million. For FY1999, EPA requested $71.2 million. Congress approved $72.5 million, and authorized EPA to enter into LUST program assistance agreements with Indian tribes.

As of June 1998, EPA estimated that more than 358,000 petroleum releases had been confirmed, nearly 302,000 cleanups had been initiated and 192,000 cleanups had been completed. In addition, states have been identifying many new releases as owners act to comply with UST leak prevention and detection regulations that enter into effect in December 1998. Consequently, states workloads in the UST and LUST programs have increased markedly, and states and industry have urged Congress to increase appropriations and to broaden the uses of the Trust Fund.

The 105th Congress acted on two LUST Trust Fund bills: House-passed H.R. 688 (H.Rept. 105-58) and reported S. 555 (S.Rept. 105-360). Both bills proposed to broaden the uses of the Trust Fund to permit states to use funds to enforce the UST leak detection and prevention program as well as the LUST cleanup program, and to help financially distressed tank owners pay for corrective actions. No further action occurred on these bills before Congress adjourned, and it is uncertain whether similar legislation will be offered in the 106^th Congress. (For more information on the LUST program and legislative issues, see CRS Report 97-471, Leaking Underground Storage Tank Cleanup Issues.)

Toxic Release Inventory Expansion

by Linda Schierow

The 105^th Congress did not take up proposals (e.g., S. 769, H.R. 659, and H.R. 1636) to amend the Emergency Planning and Community Right to Know Act (EPCRA). Congress enacted EPCRA in 1986 as Title III of the Superfund Amendments and Reauthorization Act. EPCRA, Section 313 directed EPA to establish a national inventory of toxic releases to the environment by manufacturing facilities. The Toxics Release Inventory (TRI) is EPA's computerized compilation of the submitted data. Its purpose is to make information available to the public about chemicals released in their communities. EPA recently has expanded and plans to further expand chemical reporting requirements under the authority of EPCRA Section 313.

On November 30, 1994, EPA added 286 chemicals to the TRI list for which releases must be reported (59 Federal Register 61432-61485). EPA added reporting requirements for seven industries April 22, 1997. On May 7, 1997, EPA proposed to add dioxin and 27 dioxin-like compounds to the list of chemicals subject to reporting requirements (62 Federal Register 24887). Another significant proposal, currently under review by the President's Office of Management and Budget, would increase reporting requirements by reducing the threshold for releases of some chemicals that must be reported. This would ensure that reports were filed with EPA on dioxin and mercury emissions, for example.

Currently, EPCRA requires facilities to report the amount of each covered chemical released to the environment or transferred offsite for treatment or disposal. In 1990, Congress enacted the Pollution Prevention Act, which required manufacturers and processors of toxic substances to include in their TRI annual reports additional information about source reduction and recycling. On October 1, 1996, EPA announced that it was considering whether to expand TRI information collection to include chemical use data, including "amounts of a toxic chemical coming into a facility, amounts transformed into products and wastes, and the resulting amounts leaving the facility site" (61 Federal Register 51321). However, Inside EPA reported March 6, 1998, that EPA staff counseled Administrator Browner to table the chemical use expansion plan, perhaps replacing it with a voluntary approach. Some chemical use data (for example, on worker exposure) may be collected under the Toxic Substances Control Act (TSCA).

In the 105th Congress, S. 769 and H.R. 1636 would have amended EPCRA to add reporting requirements for releases of chemicals determined to present a significant risk to children's health or the environment. In addition, the bills proposed to require facilities to report materials accounting information. In contrast, a third legislative proposal (H.R. 659) would have required deleting any chemical from the TRI list if it were dropped from the list of hazardous air pollutants covered by the Clean Air Act, Section 112, unless EPA demonstrated that the chemical posed significant threats to human health or the environment. For more information about the TRI and proposed legislation, see CRS Report 97-970 ENR, Toxics Release Inventory: Do Communities Have a Right to Know More?

Safe Drinking Water Act: Overseeing Implementation

by Mary Tiemann

Following enactment of amendments to the Safe Drinking Water Act (SDWA) in 1996, the 105th Congress continued to address drinking water issues as the House and Senate determined funding levels for drinking water programs in EPA's spending bills, and through House Commerce Committee oversight hearings on implementing the 1996 provisions. These Amendments imposed many new requirements on states and EPA. Therefore, implementation progress, funding levels, and deadlines for these new mandates may continue to be of oversight interest in the 106^th Congress.

The SDWA (42 U.S.C. 300f-300j) is the key federal law for regulating contaminants in public water systems. First enacted in 1974, the Act, as amended, is administered through programs that establish standards and treatment techniques for public water systems and that control the underground injection of wastes to protect groundwater water. More recent provisions include programs that provide financial assistance to communities for drinking water infrastructure projects, promote protection of source waters, and provide technical assistance to small public water systems. The law authorizes states to administer and enforce these programs.

The first major SDWA amendments, enacted in 1986 (P.L. 99-339), sought to increase the pace at which EPA developed drinking water standards. A key provision required EPA to regulate 25 new contaminants every 3 years. The provision did increase EPA's regulatory pace, but the Act became widely criticized for failing to give EPA flexibility to focus on contaminants of greatest concern and for imposing an unmanageable regulatory schedule on EPA, states, and communities. Moreover, implementation of the 1986 Amendments intensified dissatisfaction with the Act among states and communities (including several broader issues involving regulatory flexibility, unfunded mandates, and cost-benefit considerations in standard setting).

With P.L. 104-182, Congress extended authorizations for appropriations through FY2003, and revised the Act to focus resources on contaminants posing the greatest health risks, provide funding for drinking water mandates, improve compliance, and prevent source water contamination. The 1996 provisions also modified the standard setting schedule and process, directed EPA to conduct risk and cost analyses for most new standards, authorized a new State Revolving Fund (SRF) program to help communities finance drinking water projects. It expanded consumer information requirements and included programs for source water protection, operator training, and compliance capacity building. (For more information, see CRS Report 96-722, Safe Drinking Water Act Amendments of 1996: Overview of P.L. 104-182.)

EPA and states are working to implement the new SDWA requirements. In the SRF program, EPA has awarded FY1997 capitalization grants to all 50 states, the District of Columbia and Puerto Rico; 25 states have received their FY1998 grants. States have made loans to at least 248 water systems for a total of $594 million. (See also, CRS Report 97-677, Safe Drinking Water Act: State Revolving Fund Program.)

Regulating Pesticides

by Linda Schierow

The 105^th Congress carefully monitored EPA implementation of the Food Quality Protection Act (FQPA; P.L. 104-170) which amended the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Federal Food, Drug and Cosmetic Act (FFDCA) in 1996. At issue was the possibility that to ensure that pesticide residues on food crops are safe for children, EPA might consider revoking or restricting the registrations under FIFRA for entire classes of pesticides with the potential to adversely affect health in similar ways physiologically. Growers and pesticide manufacturers are concerned especially about popular organic phosphate and carbamate insecticides, which EPA will evaluate within the next few years. Although concern about the future availability of some of these pesticides for some uses is justified, EPA has stated that it does not expect to cancel any current uses of organophosphates this growing season. Another key issue is the extent to which EPA will rely on default assumptions and models rather than measurements in calculating risks due to pesticide residues. To the extent that pesticide manufacturers provide data on actual residue levels, for example, assessments should be able to more closely estimate real risks.

EPA has been holding discussions with stakeholders in an attempt to ensure an open decision-making process. Nevertheless, in response to the expressed concerns of growers and chemical manufacturers, Vice President Gore sent a memorandum April 8, 1998 to EPA directing the Agency to work more closely with the U.S. Department of Agriculture and with stakeholders in implementing the FQPA. In response, EPA established a new advisory group and committed itself to apply sound science, to employ an open process of decision making, and to ease any necessary transition to new rules so as not to jeopardize agriculture and farm communities. Environmental groups have expressed concerns about this new committee and urged EPA to ensure food safety as required by the FQPA.

EPA regulates the use of pesticides under authority of FIFRA. The regulatory framework created by FIFRA includes: toxicity testing and risk assessment as a basis for registering and reregistering active ingredients of pesticides as well as commercial products; classifying and approving pesticides for specific uses; restricting or canceling uses of pesticides that pose high risks; and enforcing regulations through product labeling, record keeping and facility inspections, and applicator certification. In addition to regulating pesticide use, EPA sets allowable pesticide residue levels for food (tolerances) under authority of the FFDCA. These are enforced through food sampling by the Food and Drug Administration and the Department of Agriculture.

The 104th Congress amended FIFRA to fine tune EPA's procedures for pesticide registration and suspension, to reduce the regulatory burden for minor-use, reduced-risk, public health and other special groups of pesticides, and to extend EPA authority to collect fees to fund reregistration. The FQPA also amended FFDCA to improve data collection on foods and pesticide residues consumed by infants and children; to prohibit states from regulating pesticide residues in food at a level other than the federal tolerance level (unless a petition is granted); to establish "safe" tolerances for pesticide residues in food; and to conduct research, demonstration and education programs to support adoption of integrated pest management so as to minimize economic, health, and environmental risks. (For further information, see CRS Report 96-759, Pesticide Legislation: Food Quality Protection Act of 1996.)