October 4, 1972
Page 33707
Mr. BUCKLEY. I thank my colleague from Kentucky.
Mr. President, I, too, have been a member of the subcommittee and have worked as hard as I could on this legislation. I do want to commend all concerned for their dedication. I do feel, however, that certain aspects are unfortunate. I believe the bill is more expensive than is needed to do the job, because with the rise in the Federal share, I think experience shows that something less than 75 percent could have mobilized the same volume of dollars to do the job without placing such extra burdens on the Federal Treasury. But I rise at this time because I am tremendously concerned over the insertion in the bill of a totally novel provision which appeared nowhere in either the Senate or House version. I refer to section 511 (c) (1), which grants broad exemptions from the requirement of the National Environmental Policy Act under the new water legislation.
It is regrettable that we must make a decision on such a complex legislation in so short a time; especially as in one respect we are being asked to ratify a provision which has no basis in either the Senate or House versions. This is the language in section 511(c) (1) which grants a broad exemption from the requirements of the National Environmental Policy Act for actions taken by the administration under the new water legislation.
This exemption was no doubt prompted in large part by concern over the substantial backlog in applications for discharge permits under the Refuse Act. Under recent judicial decisions, these applications, in the absence of a legislative exemption, would have been subject to the procedural requirements of the National Environmental Policy Act. But the exemption goes well beyond facilitating the issuance of the backlog of permits on existing facilities; it would also exempt from the section 102(2) (C) requirement of NEPA the quite different activity involved in establishing general standards and guidelines relating to the broadest range of water quality matters.
Just how broad this exemption is can be seen from consideration of a few of the EPA activities which under section 511(c) (1) as written, will not be subject to the formal NEPA section 102(2) (C) impact statement.
(1) No NEPA impact statement would be required for EPA approval of regional water quality management plans, even though under EPA's current procedures environmental impact statements are prepared for such plans. (See Subpart E; EPA Procedures for Implementation of the National Environmental Policy Act.) The rationale for preserving the status quo with respect to preparation of statements on some EPA actions (waste water treatment projects), while removing the requirement as presently interpreted on other activities (water quality management plans) is not clear.
(2) While discharge permits for new sources will still be subject to section 102(2) (C) Of NEPA, the much more significant setting of new source performance standards (upon which the permits would be based) apparently would not require a NEPA impact statement under the language of the exemption. This leads to the rather anomalous situation of requiring an impact statement on discharge permits, based on performance standards which have not been the subject of examination in an impact statement and which, under section 511(c) (2), would not be subject to reexamination in the context of issuing the permit. Thus, under section 511 (c) (2) the only issue left for exploration in the impact statement in such cases would apparently be non-water quality considerations.
(3) No NEPA section 102(2) (C) impact statement would be required for the establishment of the "best practicable treatment" and "best available treatment" standards for categories of waste- discharging facilities, for which the NEPA-type comment process and analysis of alternatives would seem particularly useful.
(4) Similarly, the issuance of guidelines by EPA for State control of non-point sources of pollutants will not be subjected to analysis in an environmental impact statement.
I object strongly to this hasty and ill-considered amendment of the National Environmental Policy Act. Last March the Senate Public Works Committee and the Senate Interior Committee held joint hearings on NEPA and we asked Mr. Ruckelshaus about this specific matter, namely the advisability of applying NEPA to environmental regulatory action. He undertook to undertake a study on the question, the results of which are not yet available. The sensible course would be to get the results of this study, have it reviewed by the appropriate committees, and take such action as is appropriate.
The exemption presently contained in Section 511 (c) (1) is a bad precedent. I regret that it cannot be deleted from the water legislation.
As I say, Mr. President, I am deeply concerned about clause 511(c) (2) (B). This clause may, I understand, bar any Federal permitting or licensing agency, such as AEC, from imposing, as a condition precedent to the issuance of any license or permit, any effluent limitation other than limitations established pursuant to S. 2770.
Mr. President, at this point, I ask unanimous consent to have printed in the RECORD an article from today's New York Times entitled "Environmentalists Hail AEC Ruling on Con Ed" and an article from today's Washington Post, entitled "AEC Orders Con Ed To Halt Thermal Pollution of River."
There being no objection, the articles were ordered to be. printed in the RECORD, as follows:
[From the New York Times, Oct. 4, 1972]
ENVIRONMENTALISTS HAIL AEC RULING ON CON ED
(By David Bird)
Environmentalists, who generally have been critical of the Atomic Energy Commission, were openly praising it yesterday for the decision to ask Consolidated Edison to add an expensive cooling system to its nuclear plant to protect fish life in the Hudson River.
"It's unprecedented for the A.E.C. to order a utility to do something that it doesn't want to do," said Angus Macbeth, attorney for the Hudson River Fishermen's Association, which has been opposing the original design of the plant on the Hudson River at Indian Point on the ground that it would kill much of the river's fish.
A spokesman for the A.E.C. said it was the first time the agency had said a utility must modify its cooling system to protect the environment.
The original design called for a "once-through" system, which draws water from a lake or river, passes it through the cooling system once and then dumps it back where it came from, heated.
The staff report, issued in Washington on Monday, still must be approved by the A.E.C. licensing board, which has been conducting hearings on the nuclear plant. The plant is virtually complete but has not yet received a license.
The report said Con Edison should be required to submit a plan for a self-contained, or closed-cycle, cooling system by July 1. It would have to be installed by Jan. 1, 1978.
Licensing hearings are expected to resume next month or in December. But environmentalists are already counting the A.E.C. staff report a solid victory that could set a precedent.
With a once-through system, the nuclear plant would suck some 2,650 cubic feet of water from the river every second and the Fishermen's Association said this would kill much of the river's fish by heating and battering them.
Con Edison has argued that the fish kill would be minimal and that any other system than the "once-through" method would be prohibitively expensive.
MILLIONS ARE INVOLVED
A Con Edison spokesman said that providing a self-contained cooling system for the plant that was now awaiting a license would add up to $97-million to the plant's $200-million cost.
But that could be only the beginning. The A.E.C. staff report dealt in detail only with the plant called Indian Point No. 2, which is now under consideration. The report said, however, that it was reasonable to expect that the same requirements would be placed on the Indian Point No. 1 plant, which has been in operation for 10 years, and on Indian Point No. 3 which Con Edison is adding to that generating complex 25 miles north of New York City.
Con Edison had no estimate on how much more it would cost to equip its other plants with self-contained cooling systems.
USUAL SYSTEM DESCRIBED
Usually self-contained cooling systems are giant cylindrical towers, or chimneys, where the water is allowed to cool in a draft of air and then returned the plant to be used over and over again.
While generally pleased with the A.E.C. report, Mr. Macbeth said that when the hearings resume he expects to press for speeding up the schedule to require the plant be ready by 1977.
Rod Vandivert, environmental consultant to the Scenic Hudson Preservation Conference, said the A.E.C. staff's reasoning should apply just as well to Con Edison's pumped-storage plant at Storm King, which would pump Hudson River water up to a mountaintop reservoir to be tapped to power generators during times of peak demand.
(From the Washington Post, Oct. 3, 1972)
AEC ORDERS CON ED TO HALT THERMAL POLLUTION OF RIVER
(By Thomas O'Toole)
The Atomic Energy Commission yesterday told Consolidated Edison Co. it must stop removing large volumes of water from the Hudson River to cool its two atomic power plants at Indian Point, N.Y. It was the first time the AEC has acted to regulate the way a power plant is cooled.
In a move sure to have far-reaching legal, environmental and financial implications, the AEC told Con Ed it must install a "closed cycle" cooling system at Indian Point, which could cost Con Ed as much as $150 million to build and another $75 million to operate over the plant's 30-year lifetime.
The AEC gave Con Ed until 1978 to have the closed cycle cooling system in operation, partly because the power crisis is so critical in New York and partly because the nuclear plants at Indian Point give Con Ed a chance to close older plants that are polluting the air in New York City.
The AEC moved against Con Ed because it felt that continued operation of Indian Point's present cooling system would kill the entire striped bass population in the waters around New York, since the fish spawn in the Hudson River right at Indian Point.
At present, the two nuclear power plants at Indian Point draw more than 1.1 million gallons of water a minute out of the Hudson River, pulling in thousands of fingerlings and fish larvae with it. A third nuclear plant at Indian Point will raise the intake to almost 2 million gallons a minute, which the AEC feared would be disastrous not only to the striped bass but to other fish in the Hudson.
What the AEC wants Con Ed to do is to install giant cooling chimneys at Indian Point, chimneys that recycle the water taken from the river through the plant so that the water can be used over and over again.
Without the cooling chimneys, the water is dumped back into the river 20 degrees warmer than it was when taken from the river. This heat not only means a continuous use of river water for cooling, it also threatens the river itself.
The AEC figures that Con Ed will need at Indian Point at least two cooling chimneys, each 400 feet high. The chimneys could cost as much as $75 million each and an estimated $1 million a year to operate.
The move against Con Ed is the first time the AEC has acted to regulate what might be called a "non-nuclear" activity in an atomic power plant. The move is a direct result of an action last year by a federal appeals court, which told the AEC in the Calvert Cliffs, Md., case it had to regulate discharge of heated water into rivers, lakes and streams.
The AEC has given Con Ed a year to come up with a cooling plan, but fully expects the company to challenge the move in court.
"The question of legality is likely to be raised again," a source said, "just to see how far AEC authority extends."
Mr. BUCKLEY. Mr. President, the articles document an important environmental policy decision. For the first time the AEC had said to a utility that it must add an expensive "closed cycle" cooling system to its second nuclear plant at Indian Point, N.Y., to protect fish life in the Hudson River.
It appears to me that environmental decisions of this type are barred by clause 511 (c) (2) (B) of the conference report on S. 2770. This appears to be an "effluent limitation" which is a "condition precedent" to a license. I would like to ask the Senator from Maine if I am correct in my understanding that environmentalists will be barred from intervening in AEC licensing procedures in order to obtain tougher effluent limitations – perhaps to protect wetlands, wildlife refuges, and so forth – than the limitations prescribed by the standards of the EPA-run water quality program? Am I correct in assuming that environmentalists and citizens groups particularly concerned about the effects of water pollution at, for instance, the sites of proposed industrial powerplants are entirely at the mercy of EPA and the general, nationwide standards it has set?
Mr. MUSKIE. Mr. President, I am not sure I heard clearly all of the Senator's question, but if I may try to state it, the Senator is asking whether EPA, in its authority to set effluent limitations controls with respect to the subject matter which the Senator has raised, can set those limitations and whether the AEC has to accept them. The answer is yes.
Mr. BUCKLE Y. The AEC is precluded from setting higher standards than those imposed by EPA.
Mr. MUSKIE. Does the Senator mean more rigorous from an environmental standpoint? I must say that such an action by AEC is not a possibility that occurred to the conferees. It has not occurred to me in my experience over the years. We considered that this kind of authority should be in EPA and not in AEC, and in order to put the authority there, we put it in this act, and that is where it is.
Mr. BUCKLEY. Is it not the intention of the conference committee to exclude the right of other regulatory bodies to impose more stringent environmental conditions on discharges?
Mr. MUSKIE. Again I must say yes, we gave the authority to EPA. The whole concept of EPA is that environmental considerations are to be determined in one place by an agency whose sole mission is protection of the environment. It did not occur to us that AEC might be more conscientious in this respect than EPA, so we have given EPA the total authority on the assumption that the risk from AEC was not of the nature described by the Senator but, rather, the opposite, as history demonstrates.
If AEC develops a stringent environmental conscience, and I think it is developing a more stringent environmental conscience than EPA, then we can consider whether or not AEC ought not to have new authority.
Mr. BUCKLEY. Apparently that conscience has been developed, according to what is stated in this morning's newspapers.
Mr. MUSKIE. I do not think I would lend that too much credence.
Mr. BUCKLEY. I just want to reiterate the point here that action on this bill will preclude the right of other agencies to insist on other standards, or the rights of in-depth environmental groups to go to court and insist that the AEC maintain standards more stringent than those employed by the EPA, which under this legislation is not required to file an environmental impact statement; is that correct?
Mr. MUSKIE. I think I have answered the question. Yes; that is correct.
Mr. BUCKLEY. I thank the Senator.