1020
ance and administrative costs of complying with this
section.
‘‘(4) Implementation of federally approved
plans or programs for marine, coastal, subsidence,
or conservation management or for protection of re-
sources from natural disasters.
‘‘(5) Mitigating impacts of outer Continental
Shelf activities through funding onshore infrastruc-
ture and public service needs.
‘‘(f) COMPLIANCE WITH AUTHORIZED USES.—If the
Secretary determines that an expenditure of an amount
made by a Coastal Energy State or coastal political sub-
division is not in accordance with the approved plan of
the State (including the plans of coastal political subdivi-
sions included in such plan), the Secretary shall not dis-
burse any further amounts under this section to that
Coastal Energy State or coastal political subdivision
until—
‘‘(1) the amount is repaid to the Secretary; or
‘‘(2) the Secretary approves an amendment to
the plan that authorizes the expenditure.
‘‘(g) ARBITRATION
OF STATE
AND LOCAL DIS-
PUTES.—The Secretary may require, as a condition of any
payment under this section, that a State or coastal polit-
ical subdivision in a State must submit to arbitration—
1021
‘‘(1) any dispute between the State or coastal
political subdivision (or both) and the Secretary re-
garding implementation of this section; and
‘‘(2) any dispute between the State and political
subdivision regarding implementation of this section,
including any failure to include, in the plan sub-
mitted by the State for purposes of subsection (d),
any spending plan of the coastal political subdivi-
sion.
‘‘(h) ADMINISTRATIVE EXPENSES.—Of amounts in
the Fund each fiscal year, the Secretary may use up to
one-half of one percent for the administrative costs of im-
plementing this section.
‘‘(i) FUNDING FOR CONSORTIUM.—
‘‘(1) IN GENERAL.—Of amounts deposited into
the Fund in each fiscal year 2004 through 2013, 2
percent shall be available to the Secretary of the In-
terior to provide funding for the Coastal Restoration
and Enhancement through Science and Technology
program.
‘‘(2) 
TREATMENT.—Any 
amount 
available
under this subsection for a fiscal year shall, for pur-
poses of determining the amount appropriated under
any other provision of law that authorizes appropria-
tions to carry out the program referred to in para-
1022
graph (1), be treated as appropriated under that
other provision.
‘‘(j) DISPOSITION
OF FUNDS.—A Coastal Energy
State or coastal political subdivision may use funds pro-
vided to such entity under this section, subject to sub-
section (e), for any payment that is eligible to be made
with funds provided to States under section 35 of the Min-
eral Leasing Act (30 U.S.C. 191).
‘‘(k) REPORTS.—Each fiscal year following a fiscal
year in which a Coastal Energy State or coastal political
subdivision of a Coastal Energy State receives funds under
this section, the Governor of the Coastal Energy State,
in coordination with such State’s coastal political subdivi-
sions, shall account for all funds so received for the pre-
vious fiscal year in a written report to the Secretary. The
report shall include, in accordance with regulations pre-
scribed by the Secretary, a description of all projects and
activities that received such funds. In order to avoid dupli-
cation, such report may incorporate, by reference, any
other reports required to be submitted under other provi-
sions of law.
‘‘(l) SIGNS.—The Secretary shall require, as a condi-
tion of any allocation of funds provided with amounts
made available by this section, that each State and coastal
political subdivision shall include on any sign otherwise in-
1023
stalled at any site at or near an entrance or public use
focal point area for which such funds are used, a state-
ment that the existence or development of the site (or
both), as appropriate, is a product of such funds.’’.
(b) ADDITIONAL AMENDMENTS.—Section 31 of the
Outer Continental Shelf Lands Act (43 U.S.C. 1356a) is
amended—
(1) by striking subsection (a);
(2) in subsection (c) by striking ‘‘For fiscal
year 2001, $150,000,000 is’’ and inserting ‘‘Such
sums as may be necessary to carry out this section
are’’;
(3) in subsection (d)(1)(B) by striking ‘‘, ex-
cept’’ and all that follows through the end of the
sentence and inserting a period;
(4) by redesignating subsections (b) though (g)
in order as subsection (a) through (f); and
(5) by striking ‘‘subsection (f)’’ each place it
appears and inserting ‘‘subsection (e)’’.
(c) UTILIZATION OF COASTAL RESTORATION AND
ENHANCEMENT THROUGH SCIENCE AND TECHNOLOGY
PROGRAM.—
(1) AUTHORIZATION.—The Secretary of the In-
terior and the Secretary of Commerce may each use
the Coastal Restoration and Enhancement through
1024
Science and Technology program for the purposes
of—
(A) assessing the effects of coastal habitat
restoration techniques;
(B) developing improved ecosystem mod-
eling capabilities for improved predictions of
coastal conditions and habitat change and for
developing new technologies for restoration ac-
tivities; and
(C) identifying economic options to address
socioeconomic consequences of coastal degrada-
tion.
(2) CONDITION.—The Secretary of the Interior,
in consultation with the Secretary of Commerce,
shall ensure that the program—
(A) establishes procedures designed to
avoid duplicative activities among Federal agen-
cies and entities receiving Federal funds;
(B) coordinates with persons involved in
similar activities; and
(C) establishes a mechanism to collect, or-
ganize, and make available information and
findings on coastal restoration.
(3) REPORT.—Not later than September 30,
2008, the Secretary of the Interior, in consultation
1025
with the Secretary of Commerce, shall transmit a re-
port to the Congress on the effectiveness of any Fed-
eral and State restoration efforts conducted pursu-
ant to this subsection and make recommendations to
improve coordinated coastal restoration efforts.
(4) FUNDING.—For each of fiscal years 2004
through 2013, there is authorized to be appropriated
to the Secretary $10,000,000 to carry out activities
under this subsection.
Subtitle C—Reforms to the Board
of Directors of the Tennessee
Valley Authority
SEC. 1431. CHANGE IN COMPOSITION, OPERATION, AND DU-
TIES OF THE BOARD OF DIRECTORS OF THE
TENNESSEE VALLEY AUTHORITY.
The Tennessee Valley Authority Act of 1933 (16
U.S.C. 831 et seq.) is amended by striking section 2 and
inserting the following:
‘‘SEC. 2. MEMBERSHIP, OPERATION, AND DUTIES OF THE
BOARD OF DIRECTORS.
‘‘(a) MEMBERSHIP.—
‘‘(1) APPOINTMENT.—The Board of Directors
of the Corporation (referred to in this Act as the
‘Board’) shall be composed of 9 members appointed
by the President by and with the advice and consent
1026
of the Senate, at least 5 of whom shall be a legal
resident of a State any part of which is in the serv-
ice area of the Corporation.
‘‘(2) CHAIRMAN.—The members of the Board
shall select 1 of the members to act as chairman of
the Board.
‘‘(b) QUALIFICATIONS.—To be eligible to be ap-
pointed as a member of the Board, an individual—
‘‘(1) shall be a citizen of the United States;
‘‘(2) shall have management expertise relative
to a large for-profit or nonprofit corporate, govern-
ment, or academic structure;
‘‘(3) shall not be an employee of the Corpora-
tion; and
‘‘(4) shall make full disclosure to Congress of
any investment or other financial interest that the
individual holds in the energy industry.
‘‘(c) RECOMMENDATIONS.—In appointing members
of the Board, the President shall—
‘‘(1) consider recommendations from such pub-
lic officials as—
‘‘(A) the Governors of States in the service
area;
‘‘(B) individual citizens;
1027
‘‘(C) business, industrial, labor, electric
power distribution, environmental, civic, and
service organizations; and
‘‘(D) the congressional delegations of the
States in the service area; and
‘‘(2) seek qualified members from among per-
sons who reflect the diversity, including the geo-
graphical diversity, and needs of the service area of
the Corporation.
‘‘(d) TERMS.—
‘‘(1) IN GENERAL.—A member of the Board
shall serve a term of 5 years. A member of the
Board whose term has expired may continue to serve
after the member’s term has expired until the date
on which a successor takes office, except that the
member shall not serve beyond the end of the ses-
sion of Congress in which the term of the member
expires.
‘‘(2) VACANCIES.—A member appointed to fill a
vacancy on the Board occurring before the expira-
tion of the term for which the predecessor of the
member was appointed shall be appointed for the re-
mainder of that term.
‘‘(e) QUORUM.—
1028
‘‘(1) IN GENERAL.—Five of the members of the
Board shall constitute a quorum for the transaction
of business.
‘‘(2) VACANCIES.—A vacancy on the Board
shall not impair the power of the Board to act.
‘‘(f) COMPENSATION.—
‘‘(1) IN GENERAL.—A member of the Board
shall be entitled to receive—
‘‘(A) a stipend of—
‘‘(i) $45,000 per year; or
‘‘(ii)(I) in the case of the chairman of
any committee of the Board created by the
Board, $46,000 per year; or
‘‘(II) in the case of the chairman of
the Board, $50,000 per year; and
‘‘(B) travel expenses, including per diem in
lieu of subsistence, in the same manner as per-
sons employed intermittently in Government
service under section 5703 of title 5, United
States Code.
‘‘(2) 
ADJUSTMENTS
IN
STIPENDS.—The
amount of the stipend under paragraph (1)(A)(i)
shall be adjusted by the same percentage, at the
same time and manner, and subject to the same lim-
1029
itations as are applicable to adjustments under sec-
tion 5318 of title 5, United States Code.
‘‘(g) DUTIES.—
‘‘(1) IN GENERAL.—The Board shall—
‘‘(A) establish the broad goals, objectives,
and policies of the Corporation that are appro-
priate to carry out this Act;
‘‘(B) develop long-range plans to guide the
Corporation in achieving the goals, objectives,
and policies of the Corporation and provide as-
sistance to the chief executive officer to achieve
those goals, objectives, and policies;
‘‘(C) ensure that those goals, objectives,
and policies are achieved;
‘‘(D) approve an annual budget for the
Corporation;
‘‘(E) adopt and submit to Congress a con-
flict-of-interest policy applicable to members of
the Board and employees of the Corporation;
‘‘(F) establish a compensation plan for em-
ployees of the Corporation in accordance with
subsection (i);
‘‘(G) approve all compensation (including
salary or any other pay, bonuses, benefits, in-
centives, and any other form of remuneration)
1030
of all managers and technical personnel that re-
port directly to the chief executive officer (in-
cluding any adjustment to compensation);
‘‘(H) ensure that all activities of the Cor-
poration are carried out in compliance with ap-
plicable law;
‘‘(I) create an audit committee, composed
solely of Board members independent of the
management of the Corporation, which shall—
‘‘(i) in consultation with the inspector
general of the Corporation, recommend to
the Board an external auditor;
‘‘(ii) receive and review reports from
the external auditor of the Corporation and
inspector general of the Corporation; and
‘‘(iii) make such recommendations to
the Board as the audit committee con-
siders necessary;
‘‘(J) create such other committees of
Board members as the Board considers to be
appropriate;
‘‘(K) conduct such public hearings as it
deems appropriate on issues that could have a
substantial effect on—
1031
‘‘(i) the electric ratepayers in the serv-
ice area; or
‘‘(ii) the economic, environmental, so-
cial, or physical well-being of the people of
the service area;
‘‘(L) establish the electricity rates charged
by the Corporation; and
‘‘(M) engage the services of an external
auditor for the Corporation.
‘‘(2) MEETINGS.—The Board shall meet at
least 4 times each year.
‘‘(h) CHIEF EXECUTIVE OFFICER.—
‘‘(1) APPOINTMENT.—The Board shall appoint
a person to serve as chief executive officer of the
Corporation.
‘‘(2) QUALIFICATIONS.—
‘‘(A) IN GENERAL.—To serve as chief exec-
utive officer of the Corporation, a person—
‘‘(i) shall have senior executive-level
management experience in large, complex
organizations;
‘‘(ii) shall not be a current member of
the Board or have served as a member of
the Board within 2 years before being ap-
pointed chief executive officer; and
1032
‘‘(iii) shall comply with the conflict-of-
interest policy adopted by the Board.
‘‘(B) EXPERTISE.—In appointing a chief
executive officer, the Board shall give particular
consideration to appointing an individual with
expertise in the electric industry and with
strong financial skills.
‘‘(3) TENURE.—The chief executive officer shall
serve at the pleasure of the Board.
‘‘(i) COMPENSATION PLAN.—
‘‘(1) IN GENERAL.—The Board shall approve a
compensation plan that specifies all compensation
(including salary or any other pay, bonuses, benefits,
incentives, and any other form of remuneration) for
the chief executive officer and employees of the Cor-
poration.
‘‘(2) ANNUAL SURVEY.—The compensation plan
shall be based on an annual survey of the prevailing
compensation for similar positions in private indus-
try, including engineering and electric utility compa-
nies, publicly owned electric utilities, and Federal,
State, and local governments.
‘‘(3) 
CONSIDERATIONS.—The 
compensation
plan shall provide that education, experience, level of
responsibility, geographic differences, and retention
1033
and recruitment needs will be taken into account in
determining compensation of employees.
‘‘(4) POSITIONS AT OR BELOW LEVEL IV.—The
chief executive officer shall determine the salary and
benefits of employees whose annual salary is not
greater than the annual rate payable for positions at
level IV of the Executive Schedule under section
5315 of title 5, United States Code.
‘‘(5) POSITIONS ABOVE LEVEL IV.—On the rec-
ommendation of the chief executive officer, the
Board shall approve the salaries of employees whose
annual salaries would be in excess of the annual rate
payable for positions at level IV of the Executive
Schedule under section 5315 of title 5, United
States Code.’’.
SEC. 1432. CHANGE IN MANNER OF APPOINTMENT OF
STAFF.
Section 3 of the Tennessee Valley Authority Act of
1933 (16 U.S.C. 831b) is amended—
(1) by striking the first undesignated paragraph
and inserting the following:
‘‘(a) APPOINTMENT BY THE CHIEF EXECUTIVE OF-
FICER.—The chief executive officer shall appoint, with the
advice and consent of the Board, and without regard to
the provisions of the civil service laws applicable to officers
1034
and employees of the United States, such managers, as-
sistant managers, officers, employees, attorneys, and
agents as are necessary for the transaction of the business
of the Corporation.’’; and
(2) by striking ‘‘All contracts’’ and inserting
the following:
‘‘(b) WAGE RATES.—All contracts’’.
SEC. 1433. CONFORMING AMENDMENTS.
(a) The Tennessee Valley Authority Act of 1933 (16
U.S.C. 831 et seq.) is amended—
(1) by striking ‘‘board of directors’’ each place
it appears and inserting ‘‘Board of Directors’’; and
(2) by striking ‘‘board’’ each place it appears
and inserting ‘‘Board’’.
(b) Section 9 of the Tennessee Valley Authority Act
of 1933 (16 U.S.C. 831h) is amended—
(1) by striking ‘‘The Comptroller General of the
United States shall audit’’ and inserting the fol-
lowing:
‘‘(c) AUDITS.—The Comptroller General of the
United States shall audit’’; and
(2) by striking ‘‘The Corporation shall deter-
mine’’ and inserting the following:
‘‘(d) ADMINISTRATIVE ACCOUNTS
AND BUSINESS
DOCUMENTS.—The Corporation shall determine’’.
1035
(c) Title 5, United States Code, is amended—
(1) in section 5314, by striking ‘‘Chairman,
Board of Directors of the Tennessee Valley Author-
ity.’’; and
(2) in section 5315, by striking ‘‘Members,
Board of Directors of the Tennessee Valley Author-
ity.’’.
SEC. 1434. APPOINTMENTS; EFFECTIVE DATE; TRANSITION.
(a) APPOINTMENTS.—
(1) IN GENERAL.—As soon as practicable after
the date of enactment of this Act, the President
shall submit to the Senate nominations of 6 persons
to serve as members of the Board of Directors of the
Tennessee Valley Authority in addition to the mem-
bers serving on the date of enactment of this Act.
(2) INITIAL
TERMS.—Notwithstanding section
2(d) of the Tennessee Valley Authority Act of 1933
(as amended by this subtitle), in making the ap-
pointments under paragraph (1), the President shall
appoint—
(A) 2 members for a term to expire on
May 18, 2006;
(B) 2 members for a term to expire on
May 18, 2008; and
1036
(C) 2 members for a term to expire on
May 18, 2010.
(b) EFFECTIVE DATE.—The amendments made by
this section and sections 1431, 1432, and 1433 take effect
on the later of the date on which at least 3 persons nomi-
nated under subsection (a) take office or May 18, 2005.
(c) SELECTION OF CHAIRMAN.—The Board of Direc-
tors of the Tennessee Valley Authority shall select 1 of
the members to act as chairman of the Board not later
than 30 days after the effective date of this section.
(d) CONFLICT-OF-INTEREST POLICY.—The Board of
Directors of the Tennessee Valley Authority shall adopt
and submit to Congress a conflict-of-interest policy, as re-
quired by section 2(g)(1)(E) of the Tennessee Valley Au-
thority Act of 1933 (as amended by this subtitle), as soon
as practicable after the effective date of this section.
(e) TRANSITION.—A person who is serving as a mem-
ber of the board of directors of the Tennessee Valley Au-
thority on the date of enactment of this Act—
(1) shall continue to serve until the end of the
current term of the member; but
(2) after the effective date specified in sub-
section (b), shall serve under the terms of the Ten-
nessee Valley Authority Act of 1933 (as amended by
this subtitle); and
1037
(3) may not be reappointed.
Subtitle D—Other Provisions
SEC. 1441. CONTINUATION OF TRANSMISSION SECURITY
ORDER.
Department of Energy Order No. 202–03–2, issued
by the Secretary of Energy on August 28, 2003, shall re-
main in effect unless rescinded by Federal statute.
SEC. 1442. REVIEW OF AGENCY DETERMINATIONS.
Section 7 of the Natural Gas Act (15 U.S.C. 717f)
is amended by adding at the end the following:
‘‘(i)(1) The United States Court of Appeals for the
District of Columbia Circuit shall have original and exclu-
sive jurisdiction over any civil action—
‘‘(A) for review of any order or action of any
Federal or State administrative agency or officer to
issue, condition, or deny any permit, license, concur-
rence, or approval issued under authority of any
Federal law, other than the Coastal Zone Manage-
ment Act of 1972 (16 U.S.C. 1451 et seq.), required
for the construction of a natural gas pipeline for
which a certificate of public convenience and neces-
sity is issued by the Commission under this section;
‘‘(B) alleging unreasonable delay by any Fed-
eral or State administrative agency or officer in en-
1038
tering an order or taking other action described in
subparagraph (A); or
‘‘(C) challenging any decision made or action
taken under this subsection.
‘‘(2)(A) If the Court finds that the order, action, or
failure to act is not consistent with the public convenience
and necessity (as determined by the Commission under
this section), or would prevent the construction and oper-
ation of natural gas facilities authorized by the certificate
of public convenience and necessity, the permit, license,
concurrence, or approval that is the subject of the order,
action, or failure to act shall be deemed to have been
issued subject to any conditions set forth in the reviewed
order or action that the Court finds to be consistent with
the public convenience and necessity.
‘‘(B) For purposes of paragraph (1)(B), the failure
of an agency or officer to issue any such permit, license,
concurrence, or approval within the later of 1 year after
the date of filing of an application for the permit, license,
concurrence, or approval or 60 days after the date of
issuance of the certificate of public convenience and neces-
sity under this section, shall be considered to be unreason-
able delay unless the Court, for good cause shown, deter-
mines otherwise.
1039
‘‘(C) The Court shall set any action brought under
paragraph (1) for expedited consideration.’’.
SEC. 1443. ATTAINMENT DATES FOR DOWNWIND OZONE
NONATTAINMENT AREAS.
Section 181 of the Clean Air Act (42 U.S.C.7511)
is amended by adding the following new subsection at the
end thereof:
‘‘(d) EXTENDED ATTAINMENT DATE FOR CERTAIN
DOWNWIND AREAS.—
‘‘(1) DEFINITIONS.—(A) The term ‘upwind
area’ means an area that—
‘‘(i) significantly contributes to nonattain-
ment in another area, hereinafter referred to as
a ‘downwind area’; and
‘‘(ii) is either—
‘‘(I) a nonattainment area with a later
attainment date than the downwind area,
or
‘‘(II) an area in another State that
the Administrator has found to be signifi-
cantly contributing to nonattainment in
the downwind area in violation of section
110(a)(2)(D) and for which the Adminis-
trator 
has 
established 
requirements
through notice and comment rulemaking to
1040
eliminate the emissions causing such sig-
nificant contribution.
‘‘(B) The term ‘current classification’ means
the classification of a downwind area under this sec-
tion at the time of the determination under para-
graph (2).
‘‘(2) EXTENSION.—If the Administrator—
‘‘(A) determines that any area is a down-
wind area with respect to a particular national
ambient air quality standard for ozone; and
‘‘(B) approves a plan revision for such
area as provided in paragraph (3) prior to a re-
classification under subsection (b)(2)(A),
the Administrator, in lieu of such reclassification,
shall extend the attainment date for such downwind
area for such standard in accordance with paragraph
(5).
‘‘(3) REQUIRED APPROVAL.—In order to extend
the attainment date for a downwind area under this
subsection, the Administrator must approve a revi-
sion of the applicable implementation plan for the
downwind area for such standard that—
‘‘(A) complies with all requirements of this
Act applicable under the current classification
of the downwind area, including any require-
1041
ments applicable to the area under section
172(c) for such standard; and
‘‘(B) includes any additional measures
needed to demonstrate attainment by the ex-
tended attainment date provided under this
subsection.
‘‘(4) PRIOR
RECLASSIFICATION
DETERMINA-
TION.—If, no more than 18 months prior to the date
of enactment of this subsection, the Administrator
made a reclassification determination under sub-
section (b)(2)(A) for any downwind area, and the
Administrator approves the plan revision referred to
in paragraph (3) for such area within 12 months
after the date of enactment of this subsection, the
reclassification shall be withdrawn and the attain-
ment date extended in accordance with paragraph
(5) upon such approval. The Administrator shall
also withdraw a reclassification determination under
subsection (b)(2)(A) made after the date of enact-
ment of this subsection and extend the attainment
date in accordance with paragraph (5) if the Admin-
istrator approves the plan revision referred to in
paragraph (3) within 12 months of the date the re-
classification 
determination 
under 
subsection
(b)(2)(A) is issued. In such instances the ‘current
1042
classification’ used for evaluating the revision of the
applicable implementation plan under paragraph (3)
shall be the classification of the downwind area
under this section immediately prior to such reclassi-
fication.
‘‘(5) EXTENDED DATE.—The attainment date
extended under this subsection shall provide for at-
tainment of such national ambient air quality stand-
ard for ozone in the downwind area as expeditiously
as practicable but no later than the date on which
the last reductions in pollution transport necessary
for attainment in the downwind area are required to
be achieved by the upwind area or areas.’’.
SEC. 1444. ENERGY PRODUCTION INCENTIVES.
(a) IN GENERAL.—A State may provide to any
entity—
(1) a credit against any tax or fee owed to the
State under a State law, or
(2) any other tax incentive,
determined by the State to be appropriate, in the amount
calculated under and in accordance with a formula deter-
mined by the State, for production described in subsection
(b) in the State by the entity that receives such credit or
such incentive.
1043
(b) ELIGIBLE ENTITIES.—Subsection (a) shall apply
with respect to the production in the State of—
(1) electricity from coal mined in the State and
used in a facility, if such production meets all appli-
cable Federal and State laws and if such facility
uses scrubbers or other forms of clean coal tech-
nology,
(2) electricity from a renewable source such as
wind, solar, or biomass, or
(3) ethanol.
(c) EFFECT ON INTERSTATE COMMERCE.—Any ac-
tion taken by a State in accordance with this section with
respect to a tax or fee payable, or incentive applicable,
for any period beginning after the date of the enactment
of this Act shall—
(1) be considered to be a reasonable regulation
of commerce; and
(2) not be considered to impose an undue bur-
den on interstate commerce or to otherwise impair,
restrain, or discriminate, against interstate com-
merce.
SEC. 1445. USE OF GRANULAR MINE TAILINGS.
(a) AMENDMENT.—Subtitle F of the Solid Waste
Disposal Act (42 U.S.C. 6961 et seq.) is amended by add-
ing at the end the following:
1044
‘‘SEC. 6006. USE OF GRANULAR MINE TAILINGS.
‘‘(a) MINE TAILINGS.—
‘‘(1) IN GENERAL.—Not later than 180 days
after the date of enactment of this section, the Ad-
ministrator, in consultation with the Secretary of
Transportation and heads of other Federal agencies,
shall establish criteria (including an evaluation of
whether to establish a numerical standard for con-
centration of lead and other hazardous substances)
for the safe and environmentally protective use of
granular mine tailings from the Tar Creek, Okla-
homa Mining District, known as ‘chat’, for—
‘‘(A) cement or concrete projects; and
‘‘(B) transportation construction projects
(including transportation construction projects
involving the use of asphalt) that are carried
out, in whole or in part, using Federal funds.
‘‘(2) REQUIREMENTS.—In establishing criteria
under paragraph (1), the Administrator shall
consider—
‘‘(A) the current and previous uses of
granular mine tailings as an aggregate for as-
phalt; and
‘‘(B) any environmental and public health
risks and benefits derived from the removal,
1045
transportation, 
and 
use 
in 
transportation
projects of granular mine tailings.
‘‘(3) PUBLIC PARTICIPATION.—In establishing
the criteria under paragraph (1), the Administrator
shall solicit and consider comments from the public.
‘‘(4) APPLICABILITY OF CRITERIA.—On the es-
tablishment of the criteria under paragraph (1), any
use of the granular mine tailings described in para-
graph (1) in a transportation project that is carried
out, in whole or in part, using Federal funds, shall
meet the criteria established under paragraph (1).
‘‘(b) EFFECT OF SECTIONS.—Nothing in this section
or section 6005 affects any requirement of any law (in-
cluding a regulation) in effect on the date of enactment
of this section.’’.
(b) CONFORMING AMENDMENT.—The table of con-
tents of the Solid Waste Disposal Act (42 U.S.C. prec.
6901) is amended by adding at the end of the items relat-
ing to subtitle F the following:
‘‘Sec. 6006. Use of granular mine tailings.’’.
1046
TITLE XV—ETHANOL AND
MOTOR FUELS
Subtitle A—General Provisions
SEC. 1501. RENEWABLE CONTENT OF MOTOR VEHICLE
FUEL.
(a) IN GENERAL.—Section 211 of the Clean Air Act
(42 U.S.C. 7545) is amended—
(1) by redesignating subsection (o) as sub-
section (q); and
(2) by inserting after subsection (n) the fol-
lowing:
‘‘(o) RENEWABLE FUEL PROGRAM.—
‘‘(1) DEFINITIONS.—In this section:
‘‘(A) ETHANOL.—(i) The term ‘cellulosic
biomass ethanol’ means ethanol derived from
any lignocellulosic or hemicellulosic matter that
is available on a renewable or recurring basis,
including—
‘‘(I) dedicated energy crops and trees;
‘‘(II) wood and wood residues;
‘‘(III) plants;
‘‘(IV) grasses;
‘‘(V) agricultural residues; and
‘‘(VI) fibers.
1047
‘‘(ii) The term ‘waste derived ethanol’
means ethanol derived from—
‘‘(I) animal wastes, including poultry
fats and poultry wastes, and other waste
materials; or
‘‘(II) municipal solid waste.
‘‘(B) RENEWABLE FUEL.—
‘‘(i) IN GENERAL.—The term ‘renew-
able fuel’ means motor vehicle fuel that—
‘‘(I)(aa) is produced from grain,
starch, oilseeds, or other biomass; or
‘‘(bb) is natural gas produced
from a biogas source, including a
landfill, sewage waste treatment plant,
feedlot, or other place where decaying
organic material is found; and
‘‘(II) is used to replace or reduce
the quantity of fossil fuel present in a
fuel mixture used to operate a motor
vehicle.
‘‘(ii) INCLUSION.—The term ‘renew-
able fuel’ includes cellulosic biomass eth-
anol, waste derived ethanol, and biodiesel
(as defined in section 312(f) of the Energy
Policy Act of 1992 (42 U.S.C. 13220(f))
1048
and any blending components derived from
renewable fuel (provided that only the re-
newable fuel portion of any such blending
component shall be considered part of the
applicable volume under the renewable fuel
program established by this subsection).
‘‘(C) SMALL REFINERY.—The term ‘small
refinery’ means a refinery for which average ag-
gregate daily crude oil throughput for the cal-
endar year (as determined by dividing the ag-
gregate throughput for the calendar year by the
number of days in the calendar year) does not
exceed 75,000 barrels.
‘‘(2) RENEWABLE FUEL PROGRAM.—
‘‘(A) IN GENERAL.—Not later than 1 year
after the enactment of this subsection, the Ad-
ministrator shall promulgate regulations ensur-
ing that motor vehicle fuel sold or dispensed to
consumers in the contiguous United States, on
an annual average basis, contains the applicable
volume of renewable fuel as specified in sub-
paragraph (B). Regardless of the date of pro-
mulgation, such regulations shall contain com-
pliance provisions for refiners, blenders, and
importers, as appropriate, to ensure that the re-
1049
quirements of this section are met, but shall not
restrict where renewable fuel can be used, or
impose any per-gallon obligation for the use of
renewable fuel. If the Administrator does not
promulgate such regulations, the applicable per-
centage referred to in paragraph (4), on a vol-
ume percentage of gasoline basis, shall be 2.2
in 2005.
‘‘(B) APPLICABLE VOLUME.—
‘‘(i) CALENDAR YEARS 2005 THROUGH
2012.—For the purpose of subparagraph
(A), the applicable volume for any of cal-
endar years 2005 through 2012 shall be
determined in accordance with the fol-
lowing table:
Applicable volume of
renewable fuel
‘‘Calendar year
(in billions of gallons)
2005 ...................................................................................................
3.1
2006 ...................................................................................................
3.3
2007 ...................................................................................................
3.5
2008 ...................................................................................................
3.8
2009 ...................................................................................................
4.1
2010 ...................................................................................................
4.4
2011 ...................................................................................................
4.7
2012 ...................................................................................................
5.0
‘‘(ii) CALENDAR
YEAR
2013
AND
THEREAFTER.—For the purpose of sub-
paragraph (A), the applicable volume for
calendar year 2013 and each calendar year
1050
thereafter shall be equal to the product ob-
tained by multiplying—
‘‘(I) the number of gallons of
gasoline that the Administrator esti-
mates will be sold or introduced into
commerce in the calendar year; and
‘‘(II) the ratio that—
‘‘(aa) 5.0 billion gallons of
renewable fuels; bears to
‘‘(bb) the number of gallons
of gasoline sold or introduced
into commerce in calendar year
2012.
‘‘(3) NON-CONTIGUOUS STATE OPT-IN.—Upon
the petition of a non-contiguous State, the Adminis-
trator may allow the renewable fuel program estab-
lished by subtitle A of title XV of the Energy Policy
Act of 2003 to apply in such non-contiguous State
at the same time or any time after the Adminis-
trator promulgates regulations under paragraph (2).
The Administrator may promulgate or revise regula-
tions under paragraph (2), establish applicable per-
centages under paragraph (4), provide for the gen-
eration of credits under paragraph (6), and take
such other actions as may be necessary to allow for
1051
the application of the renewable fuels program in a
non-contiguous State.
‘‘(4) APPLICABLE PERCENTAGES.—
‘‘(A) PROVISION
OF
ESTIMATE
OF
VOL-
UMES OF GASOLINE SALES.—Not later than Oc-
tober 31 of each of calendar years 2004
through 2011, the Administrator of the Energy
Information Administration shall provide to the
Administrator of the Environmental Protection
Agency an estimate of the volumes of gasoline
that will be sold or introduced into commerce in
the United States during the following calendar
year.
‘‘(B) DETERMINATION
OF
APPLICABLE
PERCENTAGES.—
‘‘(i) IN
GENERAL.—Not later than
November 30 of each of the calendar years
2004 through 2011, based on the estimate
provided under subparagraph (A), the Ad-
ministrator shall determine and publish in
the Federal Register, with respect to the
following calendar year, the renewable fuel
obligation that ensures that the require-
ments of paragraph (2) are met.
1052
‘‘(ii) REQUIRED ELEMENTS.—The re-
newable fuel obligation determined for a
calendar year under clause (i) shall—
‘‘(I) be applicable to refiners,
blenders, and importers, as appro-
priate;
‘‘(II) be expressed in terms of a
volume percentage of gasoline sold or
introduced into commerce; and
‘‘(III) subject to subparagraph
(C)(i), consist of a single applicable
percentage that applies to all cat-
egories of persons specified in sub-
clause (I).
‘‘(C) ADJUSTMENTS.—In determining the
applicable percentage for a calendar year, the
Administrator shall make adjustments—
‘‘(i) to prevent the imposition of re-
dundant obligations to any person specified
in subparagraph (B)(ii)(I); and
‘‘(ii) to account for the use of renew-
able fuel during the previous calendar year
by small refineries that are exempt under
paragraph (11).
1053
‘‘(5) EQUIVALENCY.—For the purpose of para-
graph (2), 1 gallon of either cellulosic biomass eth-
anol or waste derived ethanol—
‘‘(A) shall be considered to be the equiva-
lent of 1.5 gallon of renewable fuel; or
‘‘(B) if the cellulostic biomass ethanol or
waste derived ethanol is derived from agricul-
tural residue or is an agricultural byproduct (as
that term is used in section 919 of the Energy
Policy Act of 2003), shall be considered to be
the equivalent of 2.5 gallons of renewable fuel.
‘‘(6) CREDIT PROGRAM.—
‘‘(A) IN GENERAL.—The regulations pro-
mulgated to carry out this subsection shall pro-
vide for the generation of an appropriate
amount of credits by any person that refines,
blends, or imports gasoline that contains a
quantity of renewable fuel that is greater than
the quantity required under paragraph (2).
Such regulations shall provide for the genera-
tion of an appropriate amount of credits for
biodiesel fuel. If a small refinery notifies the
Administrator that it waives the exemption pro-
vided paragraph (11), the regulations shall pro-
vide for the generation of credits by the small
1054
refinery beginning in the year following such
notification.
‘‘(B) USE
OF
CREDITS.—A person that
generates credits under subparagraph (A) may
use the credits, or transfer all or a portion of
the credits to another person, for the purpose
of complying with paragraph (2).
‘‘(C) LIFE
OF
CREDITS.—A credit gen-
erated under this paragraph shall be valid to
show compliance—
‘‘(i) in the calendar year in which the
credit was generated or the next calendar
year; or
‘‘(ii) in the calendar year in which the
credit was generated or next two consecu-
tive calendar years if the Administrator
promulgates regulations under paragraph
(7).
‘‘(D) INABILITY TO PURCHASE SUFFICIENT
CREDITS.—The regulations promulgated to
carry out this subsection shall include provi-
sions allowing any person that is unable to gen-
erate or purchase sufficient credits to meet the
requirements under paragraph (2) to carry for-
ward a renewable fuel deficit provided that, in
1056
ods specified in subparagraph (D) of each sub-
sequent calendar year.
‘‘(C) DETERMINATIONS.—The determina-
tions referred to in subparagraph (B) are
that—
‘‘(i) less than 35 percent of the quan-
tity of renewable fuels necessary to meet
the requirement of paragraph (2) has been
used during one of the periods specified in
subparagraph (D) of the calendar year;
‘‘(ii) a pattern of excessive seasonal
variation described in clause (i) will con-
tinue in subsequent calendar years; and
‘‘(iii) promulgating regulations or
other requirements to impose a 35 percent
or more seasonal use of renewable fuels
will not prevent or interfere with the at-
tainment of national ambient air quality
standards or significantly increase the
price of motor fuels to the consumer.
‘‘(D) PERIODS.—The two periods referred
to in this paragraph are—
‘‘(i) April through September; and
‘‘(ii) January through March and Oc-
tober through December.
1057
‘‘(E) 
EXCLUSIONS.—Renewable 
fuels
blended or consumed in 2005 in a State which
has received a waiver under section 209(b) shall
not be included in the study in subparagraph
(A).
‘‘(8) WAIVERS.—
‘‘(A) IN GENERAL.—The Administrator, in
consultation with the Secretary of Agriculture
and the Secretary of Energy, may waive the re-
quirement of paragraph (2) in whole or in part
on petition by one or more States by reducing
the national quantity of renewable fuel required
under this subsection—
‘‘(i) based on a determination by the
Administrator, after public notice and op-
portunity for comment, that implementa-
tion of the requirement would severely
harm the economy or environment of a
State, a region, or the United States; or
‘‘(ii) based on a determination by the
Administrator, after public notice and op-
portunity for comment, that there is an in-
adequate domestic supply or distribution
capacity to meet the requirement.
1058
‘‘(B) PETITIONS FOR WAIVERS.—The Ad-
ministrator, in consultation with the Secretary
of Agriculture and the Secretary of Energy,
shall approve or disapprove a State petition for
a waiver of the requirement of paragraph (2)
within 90 days after the date on which the peti-
tion is received by the Administrator.
‘‘(C) TERMINATION OF WAIVERS.—A waiv-
er granted under subparagraph (A) shall termi-
nate after 1 year, but may be renewed by the
Administrator after consultation with the Sec-
retary of Agriculture and the Secretary of En-
ergy.
‘‘(9) STUDY AND WAIVER FOR INITIAL YEAR OF
PROGRAM.—Not later than 180 days after the enact-
ment of this subsection, the Secretary of Energy
shall complete for the Administrator a study assess-
ing whether the renewable fuels requirement under
paragraph (2) will likely result in significant adverse
consumer impacts in 2005, on a national, regional,
or State basis. Such study shall evaluate renewable
fuel supplies and prices, blendstock supplies, and
supply and distribution system capabilities. Based
on such study, the Secretary shall make specific rec-
ommendations to the Administrator regarding waiv-
1059
er of the requirements of paragraph (2), in whole or
in part, to avoid any such adverse impacts. Within
270 days after the enactment of this subsection, the
Administrator 
shall, 
consistent 
with 
the 
rec-
ommendations of the Secretary, waive, in whole or in
part, the renewable fuels requirement under para-
graph (2) by reducing the national quantity of re-
newable fuel required under this subsection in 2005.
This paragraph shall not be interpreted as limiting
the Administrator’s authority to waive the require-
ments of paragraph (2) in whole, or in part, under
paragraph (8) or paragraph (10), pertaining to
waivers.
‘‘(10) ASSESSMENT AND WAIVER.—The Admin-
istrator, in consultation with the Secretary of En-
ergy and the Secretary of Agriculture, shall evaluate
the requirement of paragraph (2) and determine,
prior to January 1, 2007, and prior to January 1
of any subsequent year in which the applicable vol-
ume of renewable fuel is increased under paragraph
(2)(B), whether the requirement of paragraph (2),
including the applicable volume of renewable fuel
contained in paragraph (2)(B) should remain in ef-
fect, in whole or in part, during 2007 or any year
or years subsequent to 2007. In evaluating the re-
1060
quirement of paragraph (2) and in making any de-
termination under this section, the Administrator
shall consider the best available information and
data collected by accepted methods or best available
means regarding—
‘‘(A) the capacity of renewable fuel pro-
ducers to supply an adequate amount of renew-
able fuel at competitive prices to fulfill the re-
quirement of paragraph (2);
‘‘(B) the potential of the requirement of
paragraph (2) to significantly raise the price of
gasoline, food (excluding the net price impact
on the requirement in paragraph (2) on com-
modities used in the production of ethanol), or
heating oil for consumers in any significant
area or region of the country above the price
that would otherwise apply to such commodities
in the absence of such requirement;
‘‘(C) the potential of the requirement of
paragraph (2) to interfere with the supply of
fuel in any significant gasoline market or region
of the country, including interference with the
efficient operation of refiners, blenders, import-
ers, wholesale suppliers, and retail vendors of
gasoline, and other motor fuels; and
1061
‘‘(D) the potential of the requirement of
paragraph (2) to cause or promote exceedances
of Federal, State, or local air quality standards.
If the Administrator determines, by clear and con-
vincing information, after public notice and the op-
portunity for comment, that the requirement of
paragraph (2) would have significant and meaning-
ful adverse impact on the supply of fuel and related
infrastructure or on the economy, public health, or
environment of any significant area or region of the
country, the Administrator may waive, in whole or
in part, the requirement of paragraph (2) in any one
year for which the determination is made for that
area or region of the country, except that any such
waiver shall not have the effect of reducing the ap-
plicable volume of renewable fuel specified in para-
graph (2)(B) with respect to any year for which the
determination is made. In determining economic im-
pact under this paragraph, the Administrator shall
not consider the reduced revenues available from the
Highway Trust Fund (section 9503 of the Internal
Revenue Code of 1986) as a result of the use of eth-
anol.
‘‘(11) SMALL REFINERIES.—
1062
‘‘(A) IN
GENERAL.—The requirement of
paragraph (2) shall not apply to small refineries
until the first calendar year beginning more
than 5 years after the first year set forth in the
table in paragraph (2)(B)(i). Not later than De-
cember 31, 2007, the Secretary of Energy shall
complete for the Administrator a study to de-
termine whether the requirement of paragraph
(2) would impose a disproportionate economic
hardship on small refineries. For any small re-
finery that the Secretary of Energy determines
would experience a disproportionate economic
hardship, the Administrator shall extend the
small refinery exemption for such small refinery
for no less than two additional years.
‘‘(B) ECONOMIC HARDSHIP.—
‘‘(i) EXTENSION OF EXEMPTION.—A
small refinery may at any time petition the
Administrator for an extension of the ex-
emption from the requirement of para-
graph (2) for the reason of dispropor-
tionate economic hardship. In evaluating a
hardship petition, the Administrator, in
consultation with the Secretary of Energy,
1063
shall consider the findings of the study in
addition to other economic factors.
‘‘(ii) DEADLINE FOR ACTION ON PETI-
TIONS.—The Administrator shall act on
any petition submitted by a small refinery
for a hardship exemption not later than 90
days after the receipt of the petition.
‘‘(C) CREDIT PROGRAM.—If a small refin-
ery notifies the Administrator that it waives the
exemption provided by this Act, the regulations
shall provide for the generation of credits by
the small refinery beginning in the year fol-
lowing such notification.
‘‘(D) OPT-IN
FOR
SMALL
REFINERS.—A
small refinery shall be subject to the require-
ments of this section if it notifies the Adminis-
trator that it waives the exemption under sub-
paragraph (A).
‘‘(12) 
ETHANOL
MARKET
CONCENTRATION
ANALYSIS.—
‘‘(A) ANALYSIS.—
‘‘(i) IN
GENERAL.—Not later than
180 days after the date of enactment of
this subsection, and annually thereafter,
the Federal Trade Commission shall per-
1064
form a market concentration analysis of
the ethanol production industry using the
Herfindahl-Hirschman Index to determine
whether there is sufficient competition
among industry participants to avoid price
setting and other anticompetitive behavior.
‘‘(ii) SCORING.—For the purpose of
scoring 
under 
clause 
(i) 
using 
the
Herfindahl-Hirschman 
Index, 
all 
mar-
keting arrangements among industry par-
ticipants shall be considered.
‘‘(B) REPORT.—Not later than December
1, 2004, and annually thereafter, the Federal
Trade Commission shall submit to Congress
and the Administrator a report on the results
of the market concentration analysis performed
under subparagraph (A)(i).’’.
(b) 
PENALTIES
AND
ENFORCEMENT.—Section
211(d) of the Clean Air Act (42 U.S.C. 7545(d)) is
amended as follows:
(1) In paragraph (1)—
(A) in the first sentence, by striking ‘‘or
(n)’’ each place it appears and inserting ‘‘(n),
or (o)’’; and
1065
(B) in the second sentence, by striking ‘‘or
(m)’’ and inserting ‘‘(m), or (o)’’.
(2) In the first sentence of paragraph (2), by
striking ‘‘and (n)’’ each place it appears and insert-
ing ‘‘(n), and (o)’’.
(c) SURVEY OF RENEWABLE FUEL MARKET.—
(1) SURVEY AND REPORT.—Not later than De-
cember 1, 2006, and annually thereafter, the Admin-
istrator of the Environmental Protection Agency (in
consultation with the Secretary of Energy acting
through the Administrator of the Energy Informa-
tion Administration) shall—
(A) conduct, with respect to each conven-
tional gasoline use area and each reformulated
gasoline use area in each State, a survey to de-
termine the market shares of—
(i) conventional gasoline containing
ethanol;
(ii) reformulated gasoline containing
ethanol;
(iii) conventional gasoline containing
renewable fuel; and
(iv) reformulated gasoline containing
renewable fuel; and
1066
(B) submit to Congress, and make publicly
available, a report on the results of the survey
under subparagraph (A).
(2) RECORDKEEPING
AND
REPORTING
RE-
QUIREMENTS.—The Administrator of the Environ-
mental Protection Agency (hereinafter in this sub-
section referred to as the ‘‘Administrator’’) may re-
quire any refiner, blender, or importer to keep such
records and make such reports as are necessary to
ensure that the survey conducted under paragraph
(1) is accurate. The Administrator, to avoid duplica-
tive requirements, shall rely, to the extent prac-
ticable, on existing reporting and recordkeeping re-
quirements and other information available to the
Administrator including gasoline distribution pat-
terns that include multistate use areas.
(3) APPLICABLE
LAW.—Activities carried out
under this subsection shall be conducted in a man-
ner designed to protect confidentiality of individual
responses.
SEC. 1502. FUELS SAFE HARBOR.
(a) IN GENERAL.—Notwithstanding any other provi-
sion of Federal or State law, no renewable fuel, as defined
by section 211(o)(1) of the Clean Air Act, or methyl ter-
tiary butyl ether (hereinafterin this section referred to as
1067
‘‘MTBE’’), used or intended to be used as a motor vehicle
fuel, nor any motor vehicle fuel containing such renewable
fuel or MTBE, shall be deemed a defective product by vir-
tue of the fact that it is, or contains, such a renewable
fuel or MTBE, if it does not violate a control or prohibi-
tion imposed by the Administrator of the Environmental
Protection Agency (hereinafter in this section referred to
as the ‘‘Administrator’’) under section 211 of such Act,
and the manufacturer is in compliance with all requests
for information under subsection (b) of such section 211
of such Act. If the safe harbor provided by this section
does not apply, the existence of a claim of defective prod-
uct shall be determined under otherwise applicable law.
Nothing in this subsection shall be construed to affect the
liability of any person for environmental remediation costs,
drinking water contamination, negligence for spills or
other reasonably foreseeable events, public or private nui-
sance, trespass, breach of warranty, breach of contract,
or any other liability other than liability based upon a
claim of defective product.
(b) EFFECTIVE DATE.—This section shall be effec-
tive as of September 5, 2003, and shall apply with respect
to all claims filed on or after that date.
SEC. 1503. FINDINGS AND MTBE TRANSITION ASSISTANCE.
(a) FINDINGS.—Congress finds that—
1068
(1) since 1979, methyl tertiary butyl ether
(hereinafter in this section referred to as ‘‘MTBE’’)
has been used nationwide at low levels in gasoline to
replace lead as an octane booster or anti-knocking
agent;
(2) Public Law 101–549 (commonly known as
the ‘‘Clean Air Act Amendments of 1990’’) (42
U.S.C. 7401 et seq.) established a fuel oxygenate
standard under which reformulated gasoline must
contain at least 2 percent oxygen by weight;
(3) at the time of the adoption of the fuel oxy-
gen standard, Congress was aware that significant
use of MTBE would result from the adoption of that
standard, and that the use of MTBE would likely be
important to the cost-effective implementation of
that program;
(4) Congress was aware that gasoline and its
component additives can and do leak from storage
tanks;
(5) the fuel industry responded to the fuel oxy-
genate standard established by Public Law 101–549
by making substantial investments in—
(A) MTBE production capacity; and
(B) systems to deliver MTBE-containing
gasoline to the marketplace;
1069
(6) having previously required oxygenates like
MTBE for air quality purposes, Congress has—
(A) reconsidered the relative value of
MTBE in gasoline;
(B) decided to establish a date certain for
action by the Environmental Protection Agency
to prohibit the use of MTBE in gasoline; and
(C) decided to provide for the elimination
of the oxygenate requirement for reformulated
gasoline and to provide for a renewable fuels
content requirement for motor fuel; and
(7) it is appropriate for Congress to provide
some limited transition assistance—
(A) to merchant producers of MTBE who
produced MTBE in response to a market cre-
ated by the oxygenate requirement contained in
the Clean Air Act; and
(B) for the purpose of mitigating any fuel
supply problems that may result from the elimi-
nation of the oxygenate requirement for refor-
mulated gasoline and from the decision to es-
tablish a date certain for action by the Environ-
mental Protection Agency to prohibit the use of
MTBE in gasoline.
1070
(b) PURPOSES.—The purpose of this section is to
provide assistance to merchant producers of MTBE in
making the transition from producing MTBE to producing
other fuel additives.
(c) MTBE MERCHANT PRODUCER CONVERSION AS-
SISTANCE.—Section 211(c) of the Clean Air Act (42
U.S.C. 7545(c)) is amended by adding at the end the fol-
lowing:
‘‘(5) MTBE MERCHANT
PRODUCER
CONVER-
SION ASSISTANCE.—
‘‘(A) IN GENERAL.—
‘‘(i) GRANTS.—The Secretary of En-
ergy, in consultation with the Adminis-
trator, may make grants to merchant pro-
ducers of methyl tertiary butyl ether (here-
inafter in this subsection referred to as
‘MTBE’) in the United States to assist the
producers in the conversion of eligible pro-
duction facilities described in subpara-
graph (C) to the production of iso-octane,
iso-octene, alkylates, or renewable fuels.
‘‘(ii) DETERMINATION.—The Admin-
istrator, in consultation with the Secretary
of Energy, may determine that transition
assistance for the production of iso-octane,
1071
iso-octene, alkylates, or renewable fuels is
inconsistent with the provisions of sub-
paragraph (B) and, on that basis, may
deny applications for grants authorized by
this paragraph.
‘‘(B) FURTHER
GRANTS.—The Secretary
of Energy, in consultation with the Adminis-
trator, may also further make grants to mer-
chant producers of MTBE in the United States
to assist the producers in the conversion of eli-
gible production facilities described in subpara-
graph (C) to the production of such other fuel
additives (unless the Administrator determines
that such fuel additives may reasonably be an-
ticipated to endanger public health or the envi-
ronment) that, consistent with this subsection—
‘‘(i) have been registered and have
been tested or are being tested in accord-
ance with the requirements of this section;
and
‘‘(ii) will contribute to replacing gaso-
line volumes lost as a result of amend-
ments made to subsection (k) of this sec-
tion by section 1504(a) and 1506 of the
Energy Policy Act of 2003.
1072
‘‘(C) 
ELIGIBLE
PRODUCTION
FACILI-
TIES.—A production facility shall be eligible to
receive a grant under this paragraph if the pro-
duction facility—
‘‘(i) is located in the United States;
and
‘‘(ii) produced MTBE for consump-
tion before April 1, 2003 and ceased pro-
duction at any time after the date of en-
actment of this paragraph.
‘‘(D) 
AUTHORIZATION
OF
APPROPRIA-
TIONS.—There are authorized to be appro-
priated 
to 
carry 
out 
this 
paragraph
$250,000,000 for each of fiscal years 2005
through 2012, to remain available until ex-
pended.’’.
(d) EFFECT
ON STATE LAW.—The amendments
made to the Clean Air Act by this title have no effect re-
garding any available authority of States to limit the use
of methyl tertiary butyl ether in motor vehicle fuel.
SEC. 1504. USE OF MTBE.
(a) IN GENERAL.—Subject to subsections (e) and (f),
not later than December 31, 2014, the use of methyl ter-
tiary butyl ether (hereinafter in this section referred to
1073
as ‘‘MTBE’’) in motor vehicle fuel in any State other than
a State described in subsection (c) is prohibited.
(b) REGULATIONS.—The Administrator of the Envi-
ronmental Protection Agency (hereafter referred to in this
section as the ‘‘Administrator’’) shall promulgate regula-
tions to effect the prohibition in subsection (a).
(c) STATES THAT AUTHORIZE USE.—A State de-
scribed in this subsection is a State in which the Governor
of the State submits a notification to the Administrator
authorizing the use of MTBE in motor vehicle fuel sold
or used in the State.
(d) PUBLICATION OF NOTICE.—The Administrator
shall publish in the Federal Register each notice submitted
by a State under subsection (c).
(e) TRACE QUANTITIES.—In carrying out subsection
(a), the Administrator may allow trace quantities of
MTBE, not to exceed 0.5 percent by volume, to be present
in motor vehicle fuel in cases that the Administrator deter-
mines to be appropriate.
(f) LIMITATION.—The Administrator, under author-
ity of subsection (a), shall not prohibit or control the pro-
duction of MTBE for export from the United States or
for any other use other than for use in motor vehicle fuel.
1074
SEC. 1505. NATIONAL ACADEMY OF SCIENCES REVIEW AND
PRESIDENTIAL DETERMINATION.
(a) NAS REVIEW.—Not later than May 31, 2013, the
Secretary shall enter into an arrangement with the Na-
tional Academy of Sciences to review the use of methyl
tertiary butyl ether (hereafter referred to in this section
as ‘‘MTBE’’) in fuel and fuel additives. The review shall
only use the best available scientific information and data
collected by accepted methods or the best available means.
The review shall examine the use of MTBE in fuel and
fuel additives, significant beneficial and detrimental ef-
fects of this use on environmental quality or public health
or welfare including the costs and benefits of such effects,
likely effects of controls or prohibitions on MTBE regard-
ing fuel availability and price, and other appropriate and
reasonable actions that are available to protect the envi-
ronment or public health or welfare from any detrimental
effects of the use of MTBE in fuel or fuel additives. The
review shall be peer-reviewed prior to publication and all
supporting data and analytical models shall be available
to the public. The review shall be completed no later than
May 31, 2014.
(b) PRESIDENTIAL DETERMINATION.—No later than
June 30, 2014, the President may make a determination
that restrictions on the use of MTBE to be implemented
pursuant to section 1504 shall not take place and that
1075
the legal authority contained in section 1504 to prohibit
the use of MTBE in motor vehicle fuel shall become null
and void.
SEC. 1506. ELIMINATION OF OXYGEN CONTENT REQUIRE-
MENT FOR REFORMULATED GASOLINE.
(a) ELIMINATION.—
(1) IN GENERAL.—Section 211(k) of the Clean
Air Act (42 U.S.C. 7545(k)) is amended as follows:
(A) In paragraph (2)—
(i) in the second sentence of subpara-
graph (A), by striking ‘‘(including the oxy-
gen content requirement contained in sub-
paragraph (B))’’;
(ii) by striking subparagraph (B); and
(iii) by redesignating subparagraphs
(C) and (D) as subparagraphs (B) and
(C), respectively.
(B) In paragraph (3)(A), by striking
clause (v).
(C) In paragraph (7)—
(i) in subparagraph (A)—
(I) by striking clause (i); and
(II) by redesignating clauses (ii)
and (iii) as clauses (i) and (ii), respec-
tively; and
1076
(ii) in subparagraph (C)—
(I) by striking clause (ii).
(II) by redesignating clause (iii)
as clause (ii).
(2) EFFECTIVE DATE.—The amendments made
by paragraph (1) take effect 270 days after the date
of enactment of this Act, except that such amend-
ments shall take effect upon such date of enactment
in any State that has received a waiver under sec-
tion 209(b) of the Clean Air Act.
(b) MAINTENANCE OF TOXIC AIR POLLUTANT EMIS-
SION REDUCTIONS.—Section 211(k)(1) of the Clean Air
Act (42 U.S.C. 7545(k)(1)) is amended as follows:
(1) By striking ‘‘Within 1 year after the enact-
ment of the Clean Air Act Amendments of 1990,’’
and inserting the following:
‘‘(A) IN
GENERAL.—Not later than No-
vember 15, 1991,’’.
(2) By adding at the end the following:
‘‘(B) MAINTENANCE OF TOXIC AIR POL-
LUTANT EMISSIONS REDUCTIONS FROM REFOR-
MULATED GASOLINE.—
‘‘(i) DEFINITIONS.—In this subpara-
graph the term ‘PADD’ means a Petro-
leum Administration for Defense District.
1077
‘‘(ii) REGULATIONS REGARDING EMIS-
SIONS
OF
TOXIC
AIR
POLLUTANTS.—Not
later than 270 days after the date of en-
actment of this subparagraph the Adminis-
trator shall establish, for each refinery or
importer, standards for toxic air pollutants
from use of the reformulated gasoline pro-
duced or distributed by the refinery or im-
porter that maintain the reduction of the
average annual aggregate emissions of
toxic air pollutants for reformulated gaso-
line produced or distributed by the refinery
or importer during calendar years 1999
and 2000, determined on the basis of data
collected by the Administrator with respect
to the refinery or importer.
‘‘(iii) STANDARDS
APPLICABLE
TO
SPECIFIC REFINERIES OR IMPORTERS.—
‘‘(I) APPLICABILITY
OF
STAND-
ARDS.—For any calendar year, the
standards applicable to a refinery or
importer under clause (ii) shall apply
to the quantity of gasoline produced
or distributed by the refinery or im-
porter in the calendar year only to the
1078
extent that the quantity is less than
or equal to the average annual quan-
tity of reformulated gasoline produced
or distributed by the refinery or im-
porter during calendar years 1999
and 2000.
‘‘(II) APPLICABILITY OF OTHER
STANDARDS.—For any calendar year,
the quantity of gasoline produced or
distributed by a refinery or importer
that is in excess of the quantity sub-
ject to subclause (I) shall be subject
to standards for toxic air pollutants
promulgated under subparagraph (A)
and paragraph (3)(B).
‘‘(iv) CREDIT PROGRAM.—The Admin-
istrator shall provide for the granting and
use of credits for emissions of toxic air pol-
lutants in the same manner as provided in
paragraph (7).
‘‘(v) 
REGIONAL
PROTECTION
OF
TOXICS REDUCTION BASELINES.—
‘‘(I) IN
GENERAL.—Not later
than 60 days after the date of enact-
ment of this subparagraph, and not
1079
later than April 1 of each calendar
year that begins after that date of en-
actment, the Administrator shall pub-
lish in the Federal Register a report
that specifies, with respect to the pre-
vious calendar year—
‘‘(aa) the quantity of refor-
mulated gasoline produced that is
in excess of the average annual
quantity of reformulated gasoline
produced in 1999 and 2000; and
‘‘(bb) the reduction of the
average annual aggregate emis-
sions of toxic air pollutants in
each PADD, based on retail sur-
vey data or data from other ap-
propriate sources.
‘‘(II) EFFECT
OF
FAILURE
TO
MAINTAIN
AGGREGATE
TOXICS
RE-
DUCTIONS.—If, in any calendar year,
the reduction of the average annual
aggregate emissions of toxic air pol-
lutants in a PADD fails to meet or
exceed the reduction of the average
annual aggregate emissions of toxic
1080
air pollutants in the PADD in cal-
endar years 1999 and 2000, the Ad-
ministrator, not later than 90 days
after the date of publication of the re-
port for the calendar year under sub-
clause (I), shall—
‘‘(aa) identify, to the max-
imum extent practicable, the rea-
sons for the failure, including the
sources, volumes, and character-
istics of reformulated gasoline
that contributed to the failure;
and
‘‘(bb) promulgate revisions
to the regulations promulgated
under clause (ii), to take effect
not earlier than 180 days but not
later than 270 days after the
date of promulgation, to provide
that, 
notwithstanding 
clause
(iii)(II), all reformulated gasoline
produced or distributed at each
refinery or importer shall meet
the standards applicable under
clause (ii) not later than April 1
1081
of the year following the report
in subclause (II) and for subse-
quent years.
‘‘(vi) 
REGULATIONS
TO
CONTROL
HAZARDOUS
AIR
POLLUTANTS
FROM
MOTOR
VEHICLES
AND
MOTOR
VEHICLE
FUELS.—Not later than July 1, 2004, the
Administrator shall promulgate final regu-
lations to control hazardous air pollutants
from motor vehicles and motor vehicle
fuels, as provided for in section 80.1045 of
title 40, Code of Federal Regulations (as
in effect on the date of enactment of this
subparagraph).’’.
(c) CONSOLIDATION IN REFORMULATED GASOLINE
REGULATIONS.—Not later than 180 days after the date
of enactment of this Act, the Administrator of the Envi-
ronmental Protection Agency shall revise the reformulated
gasoline regulations under subpart D of part 80 of title
40, Code of Federal Regulations, to consolidate the regula-
tions applicable to VOC-Control Regions 1 and 2 under
section 80.41 of that title by eliminating the less stringent
requirements applicable to gasoline designated for VOC-
Control Region 2 and instead applying the more stringent
1082
requirements applicable to gasoline designated for VOC-
Control Region 1.
(d) SAVINGS CLAUSE.—Nothing in this section is in-
tended to affect or prejudice either any legal claims or ac-
tions with respect to regulations promulgated by the Ad-
ministrator of the Environmental Protection Agency
(hereinafter in this subsection referred to as the ‘‘Admin-
istrator’’) prior to the date of enactment of this Act re-
garding emissions of toxic air pollutants from motor vehi-
cles or the adjustment of standards applicable to a specific
refinery or importer made under such prior regulations
and the Administrator may apply such adjustments to the
standards applicable to such refinery or importer under
clause (iii)(I) of section 211(k)(1)(B) of the Clean Air Act,
except that—
(1) the Administrator shall revise such adjust-
ments to be based only on calendar years 1999–
2000; and
(2) for adjustments based on toxic air pollutant
emissions from reformulated gasoline significantly
below the national annual average emissions of toxic
air pollutants from all reformulated gasoline, the
Administrator may revise such adjustments to take
account of the scope of Federal or State prohibitions
on the use of methyl tertiary butyl ether imposed
1083
after the date of the enactment of this paragraph,
except that any such adjustment shall require such
refiner or importer, to the greatest extent prac-
ticable, to maintain the reduction achieved during
calendar years 1999–2000 in the average annual ag-
gregate emissions of toxic air pollutants from refor-
mulated gasoline produced or distributed by the re-
finery or importer; Provided, that any such adjust-
ment shall not be made at a level below the average
percentage of reductions of emissions of toxic air
pollutants for reformulated gasoline supplied to
PADD I during calendar years 1999–2000.
SEC. 1507. ANALYSES OF MOTOR VEHICLE FUEL CHANGES.
Section 211 of the Clean Air Act (42 U.S.C. 7545)
is amended by inserting after subsection (o) the following:
‘‘(p) ANALYSES OF MOTOR VEHICLE FUEL CHANGES
AND EMISSIONS MODEL.—
‘‘(1) ANTI-BACKSLIDING ANALYSIS.—
‘‘(A) DRAFT ANALYSIS.—Not later than 4
years after the date of enactment of this sub-
section, the Administrator shall publish for pub-
lic comment a draft analysis of the changes in
emissions of air pollutants and air quality due
to the use of motor vehicle fuel and fuel addi-
tives resulting from implementation of the
1084
amendments made by subtitle A of title XV of
the Energy Policy Act of 2003.
‘‘(B) FINAL ANALYSIS.—After providing a
reasonable opportunity for comment but not
later than 5 years after the date of enactment
of this paragraph, the Administrator shall pub-
lish the analysis in final form.
‘‘(2) EMISSIONS MODEL.—For the purposes of
this subsection, as soon as the necessary data are
available, the Administrator shall develop and final-
ize an emissions model that reasonably reflects the
effects of gasoline characteristics or components on
emissions from vehicles in the motor vehicle fleet
during calendar year 2005.’’.
SEC. 1508. DATA COLLECTION.
Section 205 of the Department of Energy Organiza-
tion Act (42 U.S.C. 7135) is amended by adding at the
end the following:
‘‘(m) RENEWABLE FUELS SURVEY.—(1) In order to
improve the ability to evaluate the effectiveness of the Na-
tion’s renewable fuels mandate, the Administrator shall
conduct and publish the results of a survey of renewable
fuels demand in the motor vehicle fuels market in the
United States monthly, and in a manner designed to pro-
tect the confidentiality of individual responses. In con-
1085
ducting the survey, the Administrator shall collect infor-
mation both on a national and regional basis, including
each of the following:
‘‘(A) The quantity of renewable fuels produced.
‘‘(B) The quantity of renewable fuels blended.
‘‘(C) The quantity of renewable fuels imported.
‘‘(D) The quantity of renewable fuels de-
manded.
‘‘(E) Market price data.
‘‘(F) Such other analyses or evaluations as the
Administrator finds is necessary to achieve the pur-
poses of this section.
‘‘(2) The Administrator shall also collect or estimate
information both on a national and regional basis, pursu-
ant to subparagraphs (A) through (F) of paragraph (1),
for the 5 years prior to implementation of this subsection.
‘‘(3) This subsection does not affect the authority of
the Administrator to collect data under section 52 of the
Federal Energy Administration Act of 1974 (15 U.S.C.
790a).’’.
SEC. 1509. REDUCING THE PROLIFERATION OF STATE FUEL
CONTROLS.
(a) EPA APPROVAL OF STATE PLANS WITH FUEL
CONTROLS.—Section 211(c)(4)(C) of the Clean Air Act
(42 U.S.C. 7545(c)(4)(C)) is amended by adding at the
1086
end the following: ‘‘The Administrator shall not approve
a control or prohibition respecting the use of a fuel or fuel
additive under this subparagraph unless the Adminis-
trator, after consultation with the Secretary of Energy,
publishes in the Federal Register a finding that, in the
Administrator’s judgment, such control or prohibition will
not cause fuel supply or distribution interruptions or have
a significant adverse impact on fuel producibility in the
affected area or contiguous areas.’’.
(b) STUDY.—The Administrator of the Environ-
mental Protection Agency (hereinafter in this subsection
referred to as the ‘‘Administrator’’), in cooperation with
the Secretary of Energy, shall undertake a study of the
projected effects on air quality, the proliferation of fuel
blends, fuel availability, and fuel costs of providing a pref-
erence for each of the following:
(A) Reformulated gasoline referred to in sub-
section (k) of section 211 of the Clean Air Act.
(B) A low RVP gasoline blend that has been
certified by the Administrator as having a Reid
Vapor Pressure of 7.0 pounds per square inch (psi).
(C) A low RVP gasoline blend that has been
certified by the Administrator as having a Reid
Vapor Pressure of 7.8 pounds per square inch (psi).
1087
In carrying out such study, the Administrator shall obtain
comments from affected parties. The Administrator shall
submit the results of such study to the Congress not later
than 18 months after the date of enactment of this Act,
together with any recommended legislative changes.
SEC. 1510. FUEL SYSTEM REQUIREMENTS HARMONIZATION
STUDY.
(a) STUDY.—
(1) IN
GENERAL.—The Administrator of the
Environmental Protection Agency (hereinafter in
this section referred to as the ‘‘Administrator’’) and
the Secretary of Energy shall jointly conduct a study
of Federal, State, and local requirements concerning
motor vehicle fuels, including—
(A) requirements relating to reformulated
gasoline, volatility (measured in Reid vapor
pressure), oxygenated fuel, and diesel fuel; and
(B) other requirements that vary from
State to State, region to region, or locality to
locality.
(2) REQUIRED
ELEMENTS.—The study shall
assess—
(A) the effect of the variety of require-
ments described in paragraph (1) on the supply,
quality, and price of motor vehicle fuels avail-
1088
able to consumers in various States and local-
ities;
(B) the effect of the requirements de-
scribed in paragraph (1) on achievement of—
(i) national, regional, and local air
quality standards and goals; and
(ii) related environmental and public
health protection standards and goals;
(C) the effect of Federal, State, and local
motor vehicle fuel regulations, including mul-
tiple motor vehicle fuel requirements, on—
(i) domestic refineries;
(ii) the fuel distribution system; and
(iii) industry investment in new capac-
ity;
(D) the effect of the requirements de-
scribed in paragraph (1) on emissions from ve-
hicles, refineries, and fuel handling facilities;
(E) the feasibility of developing national or
regional motor vehicle fuel slates for the 48
contiguous States that, while improving air
quality at the national, regional and local levels
consistent with the attainment of national am-
bient air quality standards, could—
1089
(i) enhance flexibility in the fuel dis-
tribution infrastructure and improve fuel
fungibility;
(ii) reduce price volatility and costs to
consumers and producers;
(iii) provide increased liquidity to the
gasoline market; and
(iv) enhance fuel quality, consistency,
and supply;
(F) the feasibility of providing incentives
to promote cleaner burning motor vehicle fuel;
and
(G) the extent to which improvements in
air quality and any increases or decreases in
the price of motor fuel can be projected to re-
sult from the Environmental Protection Agen-
cy’s Tier II requirements for conventional gaso-
line and vehicle emission systems, the reformu-
lated gasoline program, the renewable content
requirements established by this subtitle, State
programs regarding gasoline volatility, and any
other requirements imposed by States or local-
ities affecting the composition of motor fuel.
(b) REPORT.—
1090
(1) IN GENERAL.—Not later than December 31,
2007, the Administrator and the Secretary of En-
ergy shall submit to Congress a report on the results
of the study conducted under subsection (a).
(2) RECOMMENDATIONS.—
(A) IN GENERAL.—The report under this
subsection shall contain recommendations for
legislative and administrative actions that may
be taken—
(i) to improve air quality;
(ii) to reduce costs to consumers and
producers; and
(iii) to increase supply liquidity.
(B) 
REQUIRED
CONSIDERATIONS.—The
recommendations under subparagraph (A) shall
take into account the need to provide advance
notice of required modifications to refinery and
fuel distribution systems in order to ensure an
adequate supply of motor vehicle fuel in all
States.
(3) CONSULTATION.—In developing the report
under this subsection, the Administrator and the
Secretary of Energy shall consult with—
(A) the Governors of the States;
(B) automobile manufacturers;
1091
(C) motor vehicle fuel producers and dis-
tributors; and
(D) the public.
SEC. 1511. COMMERCIAL BYPRODUCTS FROM MUNICIPAL
SOLID WASTE AND CELLULOSIC BIOMASS
LOAN GUARANTEE PROGRAM.
(a) DEFINITION OF MUNICIPAL SOLID WASTE.—In
this section, the term ‘‘municipal solid waste’’ has the
meaning given the term ‘‘solid waste’’ in section 1004 of
the Solid Waste Disposal Act (42 U.S.C. 6903).
(b) ESTABLISHMENT OF PROGRAM.—The Secretary
of Energy (hereinafter in this section referred to as the
‘‘Secretary’’) shall establish a program to provide guaran-
tees of loans by private institutions for the construction
of facilities for the processing and conversion of municipal
solid waste and cellulosic biomass into fuel ethanol and
other commercial byproducts.
(c) REQUIREMENTS.—The Secretary may provide a
loan guarantee under subsection (b) to an applicant if—
(1) without a loan guarantee, credit is not
available to the applicant under reasonable terms or
conditions sufficient to finance the construction of a
facility described in subsection (b);
(2) the prospective earning power of the appli-
cant and the character and value of the security
1092
pledged provide a reasonable assurance of repayment
of the loan to be guaranteed in accordance with the
terms of the loan; and
(3) the loan bears interest at a rate determined
by the Secretary to be reasonable, taking into ac-
count the current average yield on outstanding obli-
gations of the United States with remaining periods
of maturity comparable to the maturity of the loan.
(d) CRITERIA.—In selecting recipients of loan guar-
antees from among applicants, the Secretary shall give
preference to proposals that—
(1) meet all applicable Federal and State per-
mitting requirements;
(2) are most likely to be successful; and
(3) are located in local markets that have the
greatest need for the facility because of—
(A) the limited availability of land for
waste disposal;
(B) the availability of sufficient quantities
of cellulosic biomass; or
(C) a high level of demand for fuel ethanol
or other commercial byproducts of the facility.
(e) MATURITY.—A loan guaranteed under subsection
(b) shall have a maturity of not more than 20 years.
1093
(f) TERMS AND CONDITIONS.—The loan agreement
for a loan guaranteed under subsection (b) shall provide
that no provision of the loan agreement may be amended
or waived without the consent of the Secretary.
(g) ASSURANCE
OF REPAYMENT.—The Secretary
shall require that an applicant for a loan guarantee under
subsection (b) provide an assurance of repayment in the
form of a performance bond, insurance, collateral, or other
means acceptable to the Secretary in an amount equal to
not less than 20 percent of the amount of the loan.
(h) GUARANTEE FEE.—The recipient of a loan guar-
antee under subsection (b) shall pay the Secretary an
amount determined by the Secretary to be sufficient to
cover the administrative costs of the Secretary relating to
the loan guarantee.
(i) FULL FAITH AND CREDIT.—The full faith and
credit of the United States is pledged to the payment of
all guarantees made under this section. Any such guar-
antee made by the Secretary shall be conclusive evidence
of the eligibility of the loan for the guarantee with respect
to principal and interest. The validity of the guarantee
shall be incontestable in the hands of a holder of the guar-
anteed loan.
(j) REPORTS.—Until each guaranteed loan under this
section has been repaid in full, the Secretary shall annu-
1094
ally submit to Congress a report on the activities of the
Secretary under this section.
(k) AUTHORIZATION
OF APPROPRIATIONS.—There
are authorized to be appropriated such sums as are nec-
essary to carry out this section.
(l) TERMINATION OF AUTHORITY.—The authority of
the Secretary to issue a loan guarantee under subsection
(b) terminates on the date that is 10 years after the date
of enactment of this Act.
SEC. 1512. RESOURCE CENTER.
(a) DEFINITION.—In this section, the term ‘‘RFG
State’’ means a State in which is located one or more cov-
ered areas (as defined in section 211(k)(10)(D) of the
Clean Air Act (42 U.S.C. 7545(k)(10)(D)).
(b) AUTHORIZATION OF APPROPRIATIONS FOR RE-
SOURCE CENTER.—There are authorized to be appro-
priated, for a resource center to further develop bioconver-
sion technology using low-cost biomass for the production
of ethanol at the Center for Biomass-Based Energy at the
University of Mississippi and the University of Oklahoma,
$4,000,000 for each of fiscal years 2004 through 2006.
(c) RENEWABLE FUEL PRODUCTION RESEARCH AND
DEVELOPMENT GRANTS.—
(1) IN
GENERAL.—The Administrator of the
Environmental Protection Agency shall provide
1115
(after consultation with States), a record of under-
ground storage tanks regulated under this subtitle.
‘‘(2) CONSIDERATIONS.—To the maximum ex-
tent practicable, the public record of a State, respec-
tively, shall include, for each year—
‘‘(A) the number, sources, and causes of
underground storage tank releases in the State;
‘‘(B) the record of compliance by under-
ground storage tanks in the State with—
‘‘(i) this subtitle; or
‘‘(ii) an applicable State program ap-
proved under section 9004; and
‘‘(C) data on the number of underground
storage tank equipment failures in the State.’’.
(d) INCENTIVE FOR PERFORMANCE.—Section 9006
of the Solid Waste Disposal Act (42 U.S.C. 6991e) is
amended by adding at the end the following:
‘‘(e) INCENTIVE FOR PERFORMANCE.—Both of the
following may be taken into account in determining the
terms of a civil penalty under subsection (d):
‘‘(1) The compliance history of an owner or op-
erator in accordance with this subtitle or a program
approved under section 9004.
‘‘(2) Any other factor the Administrator con-
siders appropriate.’’.