June 10, 1974
Page 18381
Mr. McCLELLAN. Mr. President. I ask unanimous consent that I may yield to the distinguished Senator from Maine (Mr. MUSKIE) to make a point of order. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator from Arkansas will state it.
Mr. McCLELLAN. Will that come out of the time on the bill or, in order to make a point of order, is that taken care of by an unanimous consent agreement?
The PRESIDING OFFICER. The time would have to be yielded unless unanimous consent is given.
Mr. McCLELLAN. Mr. President, I ask unanimous consent to yield to the Senator from Maine to make a point of order, and that he make his point of order without the time being charged to either side on the bill.
The PRESIDING OFFICER. Is there objection to the request of the Senator from Arkansas?
Mr. FONG. Mr. President, may I ask that I be allowed to answer the Senator from Maine on his point of order and that the time not be taken away for a discussion of the point of order?
Mr. McCLELLAN. Mr. President, I ask unanimous consent that the time not be charged to either side on the bill.
The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so ordered.
Mr. MUSKIE. Mr. President, I ask unanimous consent that Karl Braithwaite of the Public Works Committee be allowed the privilege of the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, I appreciate the courtesy of my good friend from Arkansas for making it possible for me to raise a point of order in this discussion.
I should like to discuss the point of order first. The point of order which I plan to make against the legislative language placed in this appropriation bill is on page 2, lines 15 to 19. Let me read it so that Senators who are in the Chamber will understand it.
The PRESIDING OFFICER. Will the Senator please repeat his citation of where the language is in the bill.
Mr. MUSKIE. On page 2 of the bill, the italicized words on lines 15 through 19, which language appears in chapter 1 of the title on the Environmental Protection Agency energy research and development.
The language reads:
Provided, That the Environmental Protection Agency may transfer so much of the funds as it seems appropriate to other Federal agencies for energy research and development activities that it may be in a position to supply, or to render or to obtain by contract.
Mr. President, the reason I raise this point of order is that this very issue has been before the Government Operations Committee, described in the markup of ERDA, the legislation which would create the Energy Research Department Administration, and has been specifically discussed in the subcommittee and the full committee. The issue has been resolved by that committee in a different way than this legislation seeks to resolve it.
So what we have is a direct conflict between the legislative committee which has the jurisdiction and which has acted specifically in legislation that will be reported to the floor of the Senate some time this week, and the Appropriations Committee which has not had the benefit of such consideration and which seeks to resolve it in a different way.
The issue that is raised in this: Whether all research programs dealing with the responsibilities of the Environmental Protection Agency and the regulation of pollution activities shall be transferred from the Environmental Protection Agency to an agency concerned primarily with the development of technology in the energy field.
What we are talking about is the distinction between regulatory research and developmental research. The Government Operations Committee resolved the issue by determining that regulatory research should remain in the Environmental Protection Agency and that new developmental research shall be the nature of ERDA's responsibility.
Why my concern, Mr. President?
The research programs that could be transferred away from the Environmental Protection Agency under this language include programs to clean coal, programs to add controls to powerplants, to reduce nitrogen oxide, sulfur oxide, and other cleanup programs associated with energy production. When the agency needs work jointly with other agencies, that can be done and should be done under current law and appropriate intergency agreements, not under such a broad grant of authority as given here.
The House included $54 million in this bill for the Environmental Protection Agency. The Senate bill has the same figure. The House did not include the language on transfer of funds.
As I said a minute ago, the Senate Government Operations Committee has completed its markup of S. 2744, a bill to create an Energy Research and Development Administration. The bill will be reported and placed on the calendar in the next few days. Senator JAVITS and I proposed an amendment which was agreed to by a 7-to-1 vote. The amendment struck out language in the bill that would have transferred EPA's research program to the new Agency. The committee agreed that EPA's research program was vital to establishing sound environmental regulations, and must not be transferred from the Agency.
The language in the appropriation bill now before the Senate could have the effect of nullifying the action of the Senate Government Operations Committee.
I understand the language at issue may have been requested by the Environmental Protection Agency to allow more flexible use of its funds. If this is the case, then the agency has asked for much broader language than could possibly be necessary, and which matches the language which the Government Operations Committee modified and struck out because of its broad implications against our clean-up program.
It seems just as plausible that the request for this language is an attempt by the Office of Management and Budget to bring about a transfer of the Environmental Protection Agency's pollution control technology research program to other agencies and eventually to the Energy Research and Development Administration once it is established. In short, I see it as an attempt to circumvent the normal legislative process.
Mr. President, as evidence of the thorough and comprehensive consideration which this issue received in the Government Operations Committee, I ask unanimous consent to have printed in the RECORD a letter dated May 9, 1974, from Senator JAVITS and me to the chairman of the Government Operations Committee, Senator ERVIN; a letter dated May 17, 1974, from Senator JACKSON to me, conceding the validity of my point on the regulatory research of EPA and asking only that the development research responsibilities of ERDA be identified; and my letter of May 25, 1974, which is in response to Senator JACKSON'S letter and which concedes his point on ERDA.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
IGR/ERDA (COMMITTEE LETTER TO MEMBERS)
May 9, 1974.
Hon. SAM J. ERVIN, Jr.,
Chairman,
Committee on Government Operations,
U.S. Senate,
Washington, D.C.
DEAR SAM: In the near future the Government Operations Committee will mark up legislation to create a new Energy Research and Development Administration (S. 2744). At that time, we will propose an amendment to the provision which would transfer certain Environmental Protection Agency research and demonstration activities to the new Agency.
We do not believe it is sound public policy to separate pollution control technology from pollution control regulations. Enforcement policies should be based on good research and adequate demonstrated techniques so that the Agency can make sound decisions as to actual pollution control requirements. To transfer an important part of the Agency's program could harm the public interest and lead to less well-based enforcement decisions.
We do not question the importance of the proposed Agency having a strong environmental component but it should not replace or duplicate EPA's activities. Instead of removing this function from EPA, full coordination between EPA and ERDA should be required to assure that EPA's research capability is utilized.
It is not enough for EPA to maintain an ability to "assess" pollution control developments; the Agency must be able to stimulate such developments and to participate actively in that process in order to understand the problems with particular technologies.
Further, a transfer of this sort could delay the development of essential pollution control technology for one to two years. Much of the clean-up technology for energy sources is similar to that required for steel smelters, chemical plants and other industrial sources. Separation would simply lead to expensive duplication. EPA needs a substantial research and development program because of the requirements of the Clean Air Act, Federal Water Pollution Control Act, and other environmental laws.
The course we will propose should be an acceptable alternative. We will propose that ERDA have the technical capacity to coordinate with EPA, the in-house capabilities to develop new energy technologies which are environmentally acceptable, and a mandate to assimilate the pollution control technologies developed for existing sources.
We hope you will join with us in this effort to improve the capabilities of the new Energy Research and Development Administration while maintaining the technical capabilities of the Environmental Protection Agency.
Sincerely,
EDMUND S. MUSKIE,
U.S. Senator.
JACOB E. JAVITS,
U.S. Senator.
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,
Washington, D.C.,
May 17, 1974.
Hon. EDMUND S. MUSKIE,
U.S. Senate,
Washington, D.C.
DEAR ED: Thank you for the letter from you and Senator Javits advising me of your proposal to amend the pending ERDA measures (S. 2744) regarding the transfer of energy research functions presently administered by the Environmental Protection Agency.
I agree with your objectives to insure that EPA will continue to have the confirmatory research capability to back up its regulatory responsibilities regarding the Clean Air Act. I also appreciate the need for EPA to have "in-house" technical competence in the pollution control technologies which are associated with automotive and stationary power plant emissions.
One aspect of this matter does disturb me, however.
As you know, the two principal R & D programs involved – alternatives to existing automotive engine technologies and emission control in stationary power plant combustion cycles – are perhaps the two most critical areas of energy concern for the immediate future. Automotive uses now amount to about 40 percent of our consumption of scarce petroleum resources, and the use of the vast American coal resource for electric power production represents our most promising hope for near-term energy independence.
Obviously, R & D associated with automotive engines and stationary powerplants must constitute a major part of ERDA's effort. Furthermore, the environmental factors are among the most difficult technical problems of energy production and should be major concerns of ERDA in these and every other technology it approaches.
I feel strongly, therefore, that whatever action the Committee may take on the EPA programs must clearly indicate:
(1) that the EPA program alone is not considered to be an adequate Federal research effort in these two major energy technologies; and
(2) that the proposed ERDA would be expected to pursue whatever R & D into automotive engines and stationary combustion cycles appears to be needed, including environmental aspects of each.
If these areas of R & D were removed from ERDA's authority, I believe there would be serious question whether the agency could fulfill its responsibility to develop a comprehensive Federal R & D program.
I hope you can accommodate my concerns in the specific recommendations you will make to the Committee.
Sincerely,
HENRY M. JACKSON, Chairman.
U.S. SENATE,
COMMITTEE ON PUBLIC WORKS,
Washington, D.C.,
May 25, 1974.
Hon. HENRY M. JACKSON,
U. S. Senate,
Washington, D.C.
DEAR SCOOP: Your letter of May 17 discusses important points regarding the concerns Senator Javits and I raised questioning the transfer of the Environmental Protection Agency's pollution control research and development functions to the proposed Energy Research and Development Administration (S. 2744). I am sure that our amendment is consistent with the philosophy behind the proposal to create the Energy Research and Development Administration, and I believe your concerns can be satisfied.
S. 2744 specifically divides regulatory research from developmental research, with the latter being transferred from existing agencies to the Energy Research and Development Administration. The former remains in the parent agency.
In fact, in the case of atomic energy, a new regulatory research activity is created through the establishment of the Office of Nuclear Safety (Sec. 203) within the new Nuclear Safety and Licensing Commission, which is to be a regulatory body. That research function is not transferred to Energy Research and Development Administration, and it should not be.
But in the case of the Environmental Protection Agency, virtually all energy related pollution control research and development is transferred under S. 2744. This research and development is primarily related to regulatory programs. In fact, the Environmental Protection Agency has never had significant funding for purely developmental research.
The Office of Management and Budget has announced that $105 million of the $112 million pollution control budget in the Environmental Protection Agency for FY '75 is to be transferred to the Energy Research and Development Administration. This is not developmental research for energy systems. It is intended for near-term research aimed at emission control related to the regulatory responsibilities of the agency.
Your letter mentions alternatives to existing automobile engines. If the Environmental Protection Agency had a significant effort to develop a new propulsion system designed to achieve high full economy, transfer might be appropriate. But it does not. The Advanced Automotive Power Systems effort is to develop a low emission vehicle. Environmental Protection Agency personnel in this area have concentrated substantial effort on low emission characteristics of retrofit technology and modification of present engine systems. The little development work done on
systems such as the electric car have principally been contract work, and have been small efforts.
Also many of the people in the Environmental Protection Agency involved in the Advanced Automotive Power Systems program provide technical back-up to the regulatory program. Transfer of these personnel would take an important part of the technical base of the automobile emission's regulatory program from the agency.
In addition, it should be pointed out that the approach Senator Javits and I propose is consistent with S. 2176, the National Fuels and Energy Conservation Act of 1973 which you sponsored, and which passed the Senate last December. Section 13 of S. 2176 created a new program for the development of an energy efficient and environmentally sound automobile, but it maintained and recognized the Environmental Protection Agency's program for low emission research.
That precedent should be the model for the Energy Research and Development Administration as well. The development of better automobile fuel economy should be a high priority for the Energy Research and Development Administration and is clearly authorized under S. 2744, but it need not be at the expense of the Environmental Protection Agency's regulatory research program.
Your letter also raises concern over stationery power plant combustion cycles. I certainly agree that the Environmental Protection Agency's program should not constitute the entire federal effort in this area. The Environmental Protection Agency has clear and precise regulatory responsibilities to control the pollutants associated with such energy system, primarily existing sources and new sources which rely on existing energy technologies. Their research effort is directly related to those responsibilities, and should remain in the agency.
This should in no way interfere with the Energy Research and Development Administration's efforts to establish a much-needed developmental effort in combustion cycles. The Energy Research and Development Administration's developmental efforts should include detailed attention to limiting environmental by-products of new technologies. But the capability should be built into the Energy Research and Development Agency, not acquired at the expense of our efforts to clean up existing sources of pollution. Our amendment emphasizes the need for such cooperation. But the principal responsibility for research supporting environmental regulations must remain in the Environmental Protection Agency.
In summary, I believe it is possible to create a viable and strong Energy Research and Development Administration. I do not believe it is necessary or desirable to damage the Environmental Protection Agency's regulatory research program in the process. I believe our recommendation will be consistent with those objectives and with your concerns.
Sincerely,
EDMUND S. MUSKIE,
U.S. Senator, Chairman, Subcommittee on Environmental Pollution.
Mr. MUSKIE, Mr. President, here is a clear conflict with a legislative committee which has given full and comprehensive consideration to an issue over weeks of time, whose decisions are being challenged by legislation on an appropriations bill. The Senate Government Operations Committee consideration was made by Senators who are qualified from experience in the program, writing legislation for it over the years, to deal with the issue.
It has been considered and refined in a way that eliminates potential conflicts between EPA and ERDA.
Now this bill comes on the Senate floor and undertakes to throw it overboard.
It is for that reason, Mr. President, that I raise a point of order with respect to the language under rule XVI of the Senate rules, to which I have referred.
The PRESIDING OFFICER. The Chair recognizes the distinguished Senator from Hawaii.
Mr. FONG. Mr. President, before a ruling is made on the point of order raised by the Senator from Maine (Mr. MUSKIE) , I should like to explain to the Senate that the language contained in the bill to which a point of order is directed was put into the bill by the Appropriations Subcommittee on Agriculture, Environmental, and Consumer Protection at the specific request of the Environmental Protection Agency.
I ask unanimous consent to have printed in the RECORD at the conclusion of my remarks a letter directed to Senator McGEE, chairman of the subcommittee, from the Environmental Protection Agency, requesting this specific language.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. FONG. Mr. President, the total request by the Environmental Protection Agency was for $191 million. The House allowed $54 million of this and our subcommittee likewise agreed to the amount of $54 million. So in this bill there is only an appropriation of $54 million for this particular phase of the energy problem. Another $137 million still needs to be appropriated, and that will be considered in the regular appropriations bill for EPA for fiscal year 1975.
Mr. President, the pending bill is an emergency measure. It is an urgent bill. The bill should be effected and passed because we need to speed up our various energy research and development programs. We are trying to move ahead on these programs. We need all the help we can get to have the energy program proceed. That is one of the reasons why these words were added to the appropriations bill.
The Agency requested this language, and the subcommittee recommended it because it is felt that, without this authority, the Agency might not be in a position to utilize the funds appropriated in this bill and to proceed with the necessary work and programs to insure that environmental factors are properly considered and protected as we strive to develop an over-all energy policy and energy program.
As the Senator from Maine is fully aware, while the Environmental Protection Agency was allowed a considerable increase in funding in the energy activities in 1975 as compared with its budget in 1974, the budget estimate contained no provisions for increased personnel to the Agency. The Senator from Maine has expressed his concern over this situation, and I can assure all Senators that it is a matter of due concern to the members of the subcommittee. As a matter of fact, we have included language in the committee report on the bill which is directed specifically toward the personnel situation. While we certainly hope that this problem will be alleviated in the very near future, we have no assurance as of this date that any increased personnel allowances will be forthcoming to the Environmental Protection Agency from the Office of Management and Budget.
Even if additional personnel slots are forthcoming, however, in order to obtain the greatest benefit from the funds appropriated herein, the Agency should have some flexibility and be given the option to utilize the expertise and services of other agencies as may be required. The Agency wants that flexibility and the committee felt that it should be granted that flexibility, and that is the purpose of the language which is now being challenged by means of a point of order which has been raised against it by the distinguished Senator from Maine.
I would point out to my colleagues, also, that this language is not mandatory in anyway whatsoever. It is permissive and simply gives the Environmental Protection Agency the option to transfer some of the appropriated funds if and when it is deemed to be appropriate.
It appeared to the committee that by following this course of action the environmental factors, which certainly have to be considered as we develop an overall energy policy, would be adequately protected and at the same time the Agency would be given some discretion and flexibility and an opportunity to cooperate and coordinate its activities with other Federal agencies.
While I am not certain at this time what ruling will be made on the point of order raised by the Senator from Maine, I do hope it will be overruled. The committee feels that this language is most beneficial and it is important that it be retained in the bill if we are to proceed in an orderly fashion in developing an overall energy research and development program within the Federal Government. If this language is stricken from the bill and if the Environmental Protection Agency is denied the authority which it specifically requested, it could well serve to delay the development of energy and research development in the environmental field at a time when we all are trying desperately to proceed in an orderly manner on all fronts in attacking the most troublesome energy problems.
This is an emergency bill. For this reason, as I have indicated, I do hope that the point of order will be overruled and that this language will be retained in the bill.
But further, Mr. President, if it is determined that this is legislation in an appropriation bill, I suggest that the rule of germaneness would apply and that the subject language can be retained notwithstanding the fact that it is legislation.
The Pending bill, as enacted by the House of Representatives and as presented to the Senate Appropriations Committee, contained language which is similar and indeed almost identical to the language which is being challenged here by the point of order.
On page 8 of the bill at line 6 there is a provision which reads:
Provided, That from this appropriation transfers of sums may be made to other agencies of the government for the performance of the work for which this appropriation is made, and in such cases the sums so transferred may be merged with the appropriation to which transferred.
Again, on line 20, page 10, there is the following provision:
Provided, That advances or repayments or transfers from this appropriation may be made to any department or agency for expenses of carrying out such activities.
So, Mr. President, we have here a situation in which the House of Representatives in considering this bill has provided similar language to accomplish the precise purpose which our committee was attempting to do for the Environmental Protection Agency. By including these matters in the bill, this area has been opened up for Senate action. I repeat my assertion that, even if it is determined that the language in question would be subject to point of order as legislation in an appropriation bill, it is most certainly germane to the bill and therefore should not be stricken under the rules of the Senate.
EXHIBIT 1
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C.
May 15, 1974.
Hon. GALE W. MCGEE,
Chairman,
Subcommittee on Agriculture-Environmental and Consumer Protection
Committee on Appropriations,
U.S. Senate,
Washington, D.C.
DEAR MR. CHAIRMAN: We would appreciate your consideration in making two important language changes when your committee reports out on the proposed Energy Research and Development appropriation for fiscal year 1975.
The first proposal, to make the language consistent with that of our regular Research and Development appropriation, is the addition of the following which we believe was inadvertently omitted in the House bill:
For energy reserach and development activities, including hire of passenger motor vehicles; hire, maintenance, and operation of aircraft;
The second language addition requested would clarify our Agency's authority to transfer procurement activity to other agencies as needed, to complete research and development projects. Section 601 of the Economy Act (31 U.S.C. 686) essentially prohibits funding of contract under interagency agreements except where the agency is the Army, Navy, Treasury Department, Federal Aviation Agency, or the Maritime Commission.
As an example, we propose to transfer $3 million to TVA for the construction and operation of a pilot scale fluidized bed test unit. Design construction of the test unit must be accomplished by TVA under a contract with an industrial firm. The transfer of funds to TVA to enter into such a contract would violate Section 601 of the Economy Act.
To permit the transfer of funds to another agency for contracting purposes and to comply with Section 601 of the Economy Act, we request the addition of the following at the end of the language after the word "expended":
Provided that the Environmental Protection Agency may transfer so much of the funds as it deems appropriate to other Federal agencies for energy research and development activities that it may be in a position to supply, or to render or to obtain by contract.
We also request the addition of the language above to our regular 1975 Research and Development appropriations account.
Sincerely yours,
ALVIN L. ALMA,
Assistant Administrator for Planning and Management.
Mr. FONG. Mr. President, I ask for a determination by the Senate of the germaneness issue at this time. I understand that this motion is not debatable.
The PRESIDING OFFICER. The question of germaneness would take precedence over the point of order. Unless the distinguished Senator from Hawaii withholds his point of germaneness, that question would be submitted to the Senate.
Mr. FONG. Mr. President, I withhold only if I may be permitted to bring it up before a ruling is made by the Chair on the point of order.
The PRESIDING OFFICER. That is understood, and with that understanding will the Senator withhold raising the point of germaneness?
Mr. FONG. Yes, I withhold with that understanding.
Mr. MUSKIE addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Maine.
Mr. McCLELLAN. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. McCLELLAN. Mr. President, even though the question of germaneness may be raised under the previous unanimous consent agreement, I understand that no vote can be had on it before 4 o'clock this afternoon.
The PRESIDING OFFICER. No rollcall votes are to occur before 4 p.m. However, that would not prevent a voice vote.
Mr. FONG. Mr. President, I will ask for a rollcall vote on this question.
The PRESIDING OFFICER. Very well.
Mr. FONG. Under those circumstances, it would occur after 4 p.m.
Mr. McCLELLAN. Yes.
Mr. MUSKIE. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. MUSKIE. Mr. President, I request that prior to the vote, sometime after 4 o'clock, there may be a period for a further discussion on this point. We have a half dozen Senators in the Chamber. There is no way to enlighten Senators who are not present as to the issues involved between now and 4 o'clock, with so few Senators present.
I suggest that if there is to be a vote late in the afternoon, perhaps there should be a time of one-half hour of discussion before that vote so that Senators then present may have the opportunity to understand the issue. The issue is complicated.
Mr. McCLELLAN. Mr. President, if I may be heard on that point, I have no objection. I think it is quite proper that some time be set aside. I have not conferred with the leadership, but I see no objection to the request.
Mr. STENNIS. Mr. President, does the unanimous-consent request prevail now?
Mr. MUSKIE. Yes.
Mr. STENNIS. Mr. President, reserving the right to object, and I am agreeable to the idea of having time on this point, the Senate already has agreed to a closed session concerning the matter to be taken up on the military procurement bill. The time has been agreed to.
Subject to something being worked out consistent with the debate on this matter, I should think that an agreement could be worked out with the leadership.
Mr. MUSKIE. Yes. I think we should work out the matter in connection with the amendment to be debated this afternoon and voted on at 4 o'clock.
Mr. President, may I make a unanimous-consent request subject to that understanding?
The PRESIDING OFFICER. What period of time does the Senator suggest?
Mr. MUSKIE. I suggest 30 minutes.
Mr. FONG. Ten minutes on each side?
Mr. MUSKIE. Thirty minutes with 15 minutes on each side.
Mr. FONG. Thirty minutes with 15 minutes on each side? Very well.
The PRESIDING OFFICER. At what juncture in the proceedings?
Mr. MUSKIE. Following the vote on the McIntyre amendment this afternoon.
The PRESIDING OFFICER. Is there objection to the request that after the McIntyre amendment has been disposed of a period of 30 minutes be set aside for debate on the point of order raised by the distinguished Senator from Maine to the last 5 lines of chapter 1 of the bill; and that a vote be taken immediately after such 30 minutes of debate? Is there objection?
Mr. FONG. I understand the vote is on the question of germaneness.
The PRESIDING OFFICER. The question would be submitted on the question of germaneness, and the Chair understands the Senator from Hawaii to request a yea-and-nay vote.
Mr. MUSKIE. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. MUSKIE. Mr. President, if there is a vote on germaneness, would it subsequently be in order to have a vote on the point of order whenever the vote on germaneness is completed?
The PRESIDING OFFICER. That would depend on the outcome of the vote on germaneness. If the language is held to be germane, it would wipe out the point of order.
Mr. MUSKIE. One other question, in order to be sure. I rose before making the unanimous consent request in order to respond to the points made by the Senator from Hawaii. I still would like to do that this morning. I want to make clear that I intend to take a few minutes in order to do that.
The PRESIDING OFFICER. That would have to be by unanimous consent because the raising of the point of germaneness wiped out further consideration of the point of order until the germaneness point has been decided.
Mr. MUSKIE. Mr. President, I ask unanimous consent that I may have 10 minutes to respond to the distinguished Senator from Hawaii.
The PRESIDING OFFICER. Is there objection?
Mr. HASKELL. Mr. President, will the distinguished Senator from Maine withhold for just a moment while I find out the status of my amendment?
Mr. MUSKIE. I yield.
Mr. HASKELL. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. HASKELL Mr. President, I had an amendment pending, and I would like to find its status.
The PRESIDING OFFICER. The amendment is the pending question. By unanimous consent consideration was set aside pending the raising of the point of order and as soon as that matter has been disposed of temporarily we will revert to the amendment of the Senator from Colorado.
Mr. HASKELL. I have one other parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. HASKELL. It is possible that the distinguished Senator from Nevada (Mr. BIBLE) and the Senator from Colorado would be able to work out an agreement on my amendment. Are further amendments pending so that I might postpone consideration of my amendment beyond that?
The PRESIDING OFFICER. That would take unanimous consent to postpone it further.
Mr. HASKELL. Would the Chair be so kind as to instruct me how to obtain unanimous consent to delay consideration of my amendment to a time certain following the discussion of the Senator from Maine and any other amendments pending? Would that be a proper request?
The PRESIDING OFFICER. There is a limitation on the Senator's amendment at this time However, he can withdraw the amendment, if he feels an accommodation could later be reached.
Mr. HASKELL. If I should withdraw the amendment would I be able to reoffer it again?
The PRESIDING OFFICER. Yes. There would be no objection.
Mr. STENNIS. Mr. President, may I be heard on that point? I do not object; instead I commend the Senator from Colorado for his fine interest in this subject and for his conferring with the Senator from Nevada (Mr. BIBLE), who is highly conversant with the problem and who has had this matter on the floor of the Senate before. I believe they will work out something. They are very close neighbors, and I am sure they will be able to get together on some satisfactory solution.
Mr. HASKELL. I thank the distinguished Senator from Mississippi.
Mr. President, under those circumstances, I ask that I may withdraw my amendment, with the understanding that if I am unable to work out an agreement with the distinguished Senator from Nevada, I may re-offer it.
The PRESIDING OFFICER. The Senator has a right to withdraw his amendment, and the Senator takes that action. The amendment is withdrawn.
Under the unanimous-consent agreement, the Chair now recognizes the Senator from Maine.
Mr. McCLELLAN. Mr. President, I ask unanimous consent that each side may have 10 minutes for a further consideration of the point of germaneness.
Mr. ROBERT C. BYRD. Mr. President, reserving the right to object, I wonder if we could have a brief quorum call. I suggest the absence of a quorum and ask unanimous consent that the time not be charged against either side.
The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered, and the clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that the order for a quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[Unrelated intervening matter omitted]
UNANIMOUS-CONSENT AGREEMENT GERMANENESS
Mr. ROBERT C. BYRD. Mr. President, in view of the unforeseen problems that have developed in connection with the point of order and the raising of the germaneness question, the timetable with bill (S. 3000) would be greatly upset if we were to proceed with the vote on germaneness and the debate in connection with that question, and if we were to attempt to proceed to complete action on this bill today or to proceed beyond the hour of 12:45 p.m. today in connection with this bill.
So, the matter has been discussed with all parties, and the distinguished Senator from Arkansas (Mr. McCLELLAN), who is the chairman of the Appropriations Committee, has consented to forego until Wednesday further action in connection with the point of order and the question of germaneness. This is agreeable also to the distinguished Senator from Maine (Mr. MUSKIE).
In view of the fact that most of tomorrow is going to be consumed with further action on the military procurement authorization bill (S. 3000), I ask unanimous consent that there now be a period of 30 minutes for debate, to be equally divided between Mr. MUSKIE and Mr. FONG; that upon the termination of that 30 minutes the energy appropriation bill be set aside until the hour of 1 p.m. on Wednesday next; and that the time that bill is set aside today, the Senate resume the consideration of S. 3000 without the time beginning to run on the McIntyre amendment until the hour of 12:45 p.m. today.
Mr. YOUNG. Mr. President, reserving the right to object, how much time is left on the bill and amendments?
Mr. ROBERT C. BYRD. I am glad the Senator raised that question.
Mr. President, I ask unanimous consent that the 30 minutes run and be charged against Mr. MUSKIE and Mr. FONG, but that no time be charged against the bill or any other amendments thereto today.
Mr. YOUNG. The full time, the full 2 hours, are left for the bill?
Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that the full 2 hours that were allotted for debate on the bill at the beginning be reallocated to the bill upon the Senate's resuming action thereon on Wednesday.
Mr. MUSKIE. Reserving the right to object – and I will not object – on the germaneness question, has the Senator decided at what time the debate will begin on Wednesday?
Mr. ROBERT C. BYRD. Could we decide that later? We will work out an agreement whereby all Senators will know the hour at which a vote will occur on the germaneness question. But for now, I think this will get us out of the problem in which we find ourselves immediately.
Mr. President, I ask unanimous consent that the time agreement begin ab initio on Wednesday next when the Senate resumes consideration of the energy appropriation bill.
I thank all Senators.
Mr. FONG. Mr. President, reserving the right to object, and I will not object, the vote will be on the question of germaneness; is that correct?
Mr. ROBERT C. BYRD. The vote will be on the question of germaneness in accordance with the rule.
The PRESIDING OFFICER. Is there objection? The Chair hears none and it is so ordered.
Mr. ROBERT C. BYRD. Mr. President, I may say to the distinguished senator that we will agree on a time.
Mr. FONG. Yes.
The PRESIDING OFFICER. At this time, there will be a period of not to exceed 30 minutes during which time the point of order will be debated, with 15 minutes allotted to the distinguished Senator front Hawaii and 15 minutes to the distinguished Senator from Maine. Who yields time?
Mr. MUSKIE. Mr. President, just to respond – and I may not take the full 15 minutes, since we will have further time to discuss the issue on Wednesday – I shall take just a few minutes to discuss some of the points raised by the distinguished Senator from Hawaii.
First of all, as chairman of the Subcommittee on Environmental Protection, it has been my effort in the last 2 years to work closely with the Appropriations Subcommittee on the Environment in order that we can avoid disagreements on the floor of the Senate as to our environmental objectives.
I regret that this issue has arisen, by surprise to me, under the circumstances that confront me on the floor of the Senate this morning.
With respect to the point of order on the germaneness question, I understand, of course, that the Senate as a whole will decide that question and that the Parliamentarian or the Chair will not rule on it. But, surely, there must be some limitations, some parameters, within which the Senate as a whole ought to judge this question.
If legislation is put on an appropriation bill by the House of Representatives and it them comes to the Senate, we cannot reach that by point of order, so the germaneness question is simply a device to use something that the House did which is beyond our reach to attach legislation on the Senate bill.
If we were to use that practice loosely and without any self-discipline whatsoever, then our rule against legislation on an appropriations bill would be meaningless.
What is the Senator's argument on germaneness, looked at in that light?
My point of order addressed itself to page 2 of the bill, which has to do with an appropriation for the Environmental Protection Agency. There is no legislation in that part of the bill which originated in the House – none whatsoever. So with respect to that provision of the bill, the language to which I addressed my point of order is not germane, but rather the Senator from Hawaii would argue that House legislative language on another provision of the bill, chapter 4, which covers the Atomic Energy Commission, is legislation to which his amendment is germane because the provisions for the Atomic Energy Commission are phrased similarly to those for the Environmental Protection Agency.
If we are to accept that test of germaneness, then all we would need is some obscure piece of legislation tucked away in some corner to justify any legislation that the Senate Appropriations Committee wanted to attach to an appropriation bill covering any subject that is conceivably within the four corners of the bill. If we adopt that test of germaneness, then the germaneness test is meaningless.
Mr. President, I now address myself to the point made by the distinguished Senator from Hawaii to the effect that the EPA requested this language.
On that point, the EPA has been under pressure constantly, for months, from the Federal Energy Administration and from the Office of Management and Budget to compromise the objectives of the Clean Air Act and the Clean Water Act, and the Administrator of EPA, Mr. Russell Train, has fought valiantly; but in order to win some victories in the cause of clean air and clean water, he has had to surrender in other struggles, and one of those struggles is this one. When the Senator from Hawaii tells me that EPA requests this language, I say to him I do not believe that EPA really wants this language.
The original language in the ERDA bill, requested by OMB and FEA and supported by EPA, would have transferred out of EPA all of its regulatory research activities, programs, functions, and personnel, completely undermining its ability to regulate those industries which are subject to regulation under the Clean Air Act.
You cannot tell me, Mr. President – not even the persuasion of the Senator from Hawaii can tell me in a convincing way that EPA really wants this. This is one of the points which EPA is willing to surrender to get peace in the family and to turn back other more vigorous and vicious attempts to undermine the Clean Air Act.
I say, Mr. President, to the distinguished Senator from Hawaii, I think that the Environmental Subcommittee of the Appropriations Committee has as strong a mandate as the Subcommittee on Environmental pollution to be aware of these attacks on this bill and on this legislation.
This is an attack on the Clean Air Act. The appropriations bills have been used by the House for 2 years in an effort to undercut the Clean Air Act. The efforts will continue, and it is only by being alert to the directions from which the attacks come that we can turn them back. So this is an important issue that that is before us.
I emphasize, Mr. President, that it is an issue that is before the Committee on Government Operations; it has been before the Committee on Government operations for weeks. It has been thoroughly considered there and resolved there, and the resolution makes sure that EPA will continue to have its regulatory research programs and that ERDA will create its own developmental research programs.
I think that resolution makes sense, Mr. President. I do not think this one makes any sense at all unless one is desirous of undercutting the Clean Air Act.
The Senator says this is an emergency, Mr. President, I have been working on emergency bills connected with the energy crisis since last December, and we have yet to enact an emergency energy bill.
I say, second, that I do not believe there is an energy emergency that justifies gutting the Clean Air Act. This language that I am talking about is a part of the language insisted upon by OMB and insisted upon by FEA to deprive EPA entirely of its research functions.
I just do not believe we should meddle with it in this appropriations bills.
There are legislative vehicles coming along which are going to reach the floor of the Senate this week. If there is disagreement with the compromise worked out in the Government Operations Committee by Senator JACKSON, Senator ERVIN, Senator JAVITS, and myself, there is ample opportunity to raise it with full debate, not the kind of debate limited by this appropriations measure. I urge, Mr. President, that the germaneness issue be turned down by the Senate and the point of order be supported, so that we can do what the Senator from Hawaii has been urging: Follow orderly processes for raising and resolving these issues.
The PRESIDING OFFICER. Who yields time?
Mr. FONG. Mr. President, there was no attempt by the Subcommittee on Agriculture, Environmental, and Consumer Protection of the Appropriations Committee, to subvert the Clean Air Act. In fact, we have specifically stated in our report as follows:
It is the expectation of the Committee that an appropriate amount of funds for initiating chemical coal cleaning technology, in any event no less than 10 percent of the funds appropriated for this purpose, shall be used in demonstrating the most efficient available technology which can be incorporated in new electric generating facilities now in the design and or construction stages.
We all know that if we are going to have sufficient energy, we have got to depend on our coal supply. We have got to improve technology on coal so that we can have clean air.
Here is the committee report which specifically states, "no less than 10 percent" of the funds appropriated for EPA research is for demonstrating the most efficient available technology to incorporate in new electric generating facilities so that we could have clean air.
The distinguished Senator from Maine says that he does not think EPA really wants this language in the bill.
Let me read from their letter of May 15,1974:
The second language addition requested would clarify our Agency's authority to transfer procurement activity to other agencies as needed, to complete research and development projects. Section 601 of the Economy Act (31 U.S.C. 686) essentially prohibits funding of contracts under interagency agreements except where the agency is the Army, Navy, Treasury Department, Federal Aviation Agency, or the Maritime Commission.
As an example, we propose to transfer $3 million to TVA for the construction and operation of a pilot scale fluidized bed test unit. Design construction of the test unit must be accomplished by TVA under a contract with an industrial firm. The transfer of funds to TVA to enter into such a contract would violate Section 601 of the Economy Act.
To permit the transfer of funds to another agency for contracting purposes and to comply with Section 601 of the Economy Act, we request the addition of the following at the end of the language after the word "expended"
"Provided that the Environmental Protection Agency may transfer so much of the funds as it deems appropriate to other Federal agencies for energy research and development activities that it may be in a position to supply, or to render or to obtain by contract."
Now, Mr. President, there is no agency now coordinating all the energy research and development programs. This fact that there is no coordinating agency at the present time is important.
At least 14 or 15 agencies are involved in the pending new energy appropriations bill which we are trying to expedite and which has for its purpose, really, getting the energy research and development programs going.
The purpose of the pending bill is to provide funding to get the programs going as expeditiously as possible.
Let me read the various agencies involved.
Chapter 1, EPA. Chapter II, NASA and the National Science Foundation. Chapter III, the Department of Interior, Chapter IV, Atomic Energy Commission; Bonneville Power Administration, Underground and Other Electric Power Transmission Research. Chapter V, Department of Commerce. Chapter VI, Department of Transportation. Chapter VIII, Federal Energy Office.
These are all the various agencies that are involved in this energy research and development appropriations bill. There is no one agency coordinating the energy research and development programs.
Now the language our committee added to the bill gives flexibility to the EPA so that it will not be duplicating a program, so that other agencies will not duplicate the program, and so that it can transfer the funds to other agencies that may be working on some of the EPA programs if they are interested.
On the question of germaneness, the whole theme of the pending bill is energy.
Let me read the title of the bill:
Making appropriations for energy research and development activities of certain departments, independent executive agencies, bureaus, offices, and commissions for the fiscal year ending June 30, 1975, and for other purposes.
Mr. President, the subject of the bill is energy – energy research and development activities.
What do we have in the bill?
On page 8 – the Atomic Energy Commission – we have these very words which are in substance the very same as we are trying to provide for EPA in our wording. That is, on page 8, the way the House has approved the bill insofar as the Atomic Energy Commission is concerned:
Provided, That from this appropriation transfers of sums may be made to other agencies of the Government for the performance of the work for which this appropriation is made, and in such cases the sums so transferred may be merged with the appropriation to which transferred:
Again, on page 10 – Federal Energy Office – we find these words:
Provided, That advances or repayments or transfers from this appropriation may be made to any department or agency for expenses of carrying out such activities.
So, Mr. President, the question of germaneness is really a proper one. I would say that the words we have included in the EPA appropriation title are germane to the whole issue of energy research and development activities.
The EPA Agency asked for $191 million. The House gave it $54 million. We agreed with the House to give it $54 million for this emergency program, so we still have $137 million to go. We are only appropriating approximately 28 percent of the request for $191 million. We are appropriating $54 million.
I submit that the words we have incorporated in the EPA title are germane to the whole question.
The reason why the House did not include it, as I have been told, is that the matter was never presented to it.
I understand that the House Appropriations Committee did not have a request for the EPA transfer language when they wrote H.R. 14434. So, Mr. President, it is not a case of the House committee's having rejected the language.
This matter, if approved by the Senate, will be in conference. On this particular item, if the House conferees feel it should not stay in the bill, they will have a chance to throw it out.
I say that this provision will not be detrimental to the bill if we put it in. It will be a great benefit to the bill. It will be a great benefit to the Government. It will be a great benefit to EPA to have these words incorporated, because this is a program which we are trying to have the Government initiate, and we need to have some flexibility.
Mr. MUSKIE. Mr. President, the point the Senator from Hawaii has just made appears to suggest that objection to legislation in appropriation bills of the Senate has to do with the failure of the House Appropriations Committee to act.
The point is, his argument seems to be that the reason legislation had not been attached to appropriation bills was that there are legislative committees who have the responsibility and the jurisdiction to act.
Whether the House has attached legislation to an appropriations bill is simply a loophole which has the effect of bypassing Senate legislative committees. So if the Senate endorses the point of view of the Senator from Hawaii, what the Senate will do is to endorse the House's prerogative to legislate on an appropriation bill in ways the Senate cannot do. That is the meaning of this proposal; because if we open the germaneness issue as broadly as he asks us to do, then the House can attach legislation to appropriations bills covering the whole range of issues considered by Senate legislative committees. We cannot attack them on the floor of the House. Then the Senate Appropriations Committee can use that House legislation to further broaden the attack on the legislative committees of the Senate. That is the nature of the position. To justify a breach of the Senate's will against legislation on an appropriation bill by prerogatives of the House committee seems to represent an attempted surrender to the House of Senate prerogatives. That
is what the Senator from Hawaii is arguing for.
He is arguing that we should let the House dictate to us on the question of whether or not we should permit legislation on an appropriation bill. And he does it how? He does it by arguing that because the House did it in one chapter of the bill dealing with the Atomic Energy Commission, that makes similar language on the Senate side germane for the Environmental Protection Agency which comes under a separate chapter of the bill.
That is to stretch the argument of germaneness beyond any reason.
Mr. President, I know that EPA wrote the Senator a letter asking for this. They also wrote a statement asking me to completely gut their regulatory research programs, and I refused to do so. Without the regulatory research programs, they cannot do the job of regulation.
If EPA wrote the Senator that letter, they should not have done so if they are really concerned with preserving the integrity of the Clean Air Act.
I can believe they wrote it, just as they wrote their letter to me, under pressure of the Office of Management and Budget, under the pressure of the Federal Energy Administrator, just as those two agencies undertook to pressure Mr. Train into endorsing amendments to the Clean Air Act, which he could not swallow.
He brought them up here, he delivered them, and he was man enough to tell us he was not for them. But he also said that because of the pressures brought upon him, he had to agree to other amendments about which he was not too enthusiastic.
Does the Senator wish me to believe that that letter was the free act of Mr. Train and the Environmental Protection Agency? I regret to say to the Senator I have been too close to the picture for too long to buy any such arguments or any such letter. I have to judge this in terms of my own understanding of the Clean Air Act, the clean air program, the attacks upon it, and the indirect routes that have been taken by its enemies in both Houses of this Congress to gut it. That is what this language does.
It is part of an attack that has been concerted and persisted in for months, to gut the research programs of the Environmental Protection Agency.
I hope no Senator will misread it as being anything but that. Understanding it, if Senators think the Clean Air Act ought to be weakened, then they should vote with the Senator from Hawaii. Understanding it, if Senators want to protect the Clean Air Act, then they should vote with the Senator from Maine.
The PRESIDING OFFICER. Who yields time?
Mr. FONG. Mr. President, how many minutes do I have remaining?
The PRESIDING OFFICER. The Senator has 6 minutes remaining.
Mr. FONG. Mr. President, I cannot see how these words in the appropriation bill under the EPA title can gut the Clean Air Act. As I pointed out earlier, the committee in its report stated that not less than 10 percent of the amount which we have appropriated is to go to technology so that the coal may be clean in the production of energy. If that is not helping the Clean Air Act, I do not know what is helping the Clean Air Act.
Mr. MUSKIE. Mr. President, will the Senator yield for a question?
Mr. FONG. I will yield for a question.
Mr. MUSKIE. If the objective of the research is to clean up coal, which agency would be more concerned, if that be the true goal, the Environmental Protection Agency or the energy agency whose mission is different, to expand the use of coal?
Mr. FONG. I believe EPA could put restrictions in its transfer of funds so that EPA would be protecting the Clean Air Act. I cannot see EPA trying to do away with the Clean Air Act. I cannot see EPA transferring money to other agencies so that they could do away with certain
parts of the Clean Air Act.
Mr. MUSKIE. May I ask another question?
Mr. FONG. Yes.
Mr. MUSKIE. Does the Senator believe that EPA would get involved with such contracts or transfers without the direct supervision of the Office of Management and Budget?
Is the Senator aware of the previous position of OMB to pursue not environmental goals but energy goals in that kind of transfer? There is a fox in the chicken coop, may I say to the Senator? I have seen it there. The Senator ought to look a little closer to make sure he does not see it, too
Mr. FONG. The EPA Administrator should be an independent administrator. He should not let OMB tell him what to do. If he feels that this transfer is going to denigrate the Clean Air Act, he should not transfer the funds.
What we are asking for here is not a mandatory transfer; we are asking for a permissive transfer. He may do it. He need not do it if he does not want to do it.
Mr. MUSKIE. Will the Senator yield for a further question?
Mr. FONG. I yield.
Mr. MUSKIE. I commend the Senator's attention to our oversight hearings on EPA's budget. I asked EPA:
Do you ever evaluate what it would cost to meet the goals of the Clean Air Act in terms of personnel and funding? Do you ever make that independent evaluation to submit to OMB?
The answer was "No." OMB gives us the figure, a ceiling, and we have to live within that. There never was an opportunity to tell OMB whether that is adequate or inadequate, whether it ought to be more or less.
With that kind of subservient relationship between OMB and EPA and other agencies of the Government, does the Senator really believe that the language in this bill is going to be used in ways that EPA freely and in an uninhibited, unrestricted, and unrestrained way would determine?
I do not believe that, though the Senator may. If the Senator does believe that, I say the Senator is being a little naive.
Mr. FONG. We have increased the appropriation of EPA very substantially.
They have not been allowed additional personnel, however. We have given them much more money than we did last year, but so far EPA has not received clearance from OMB for additional personnel.
Without that personnel, they will not be able to carry out their functions, those which we wish them to perform under this bill.
We should give them that flexibility so that if they feel they should have some help from other agencies, there is no reason why they should not get it.
Mr. MUSKIE. My one question in the debate boils down to this: I know that this language will be used by OMB – because their intentions are clearly on the record of the hearings before our committee – that it will be used by OMB to move all research funds out of EPA into other agencies.
The language is flexible enough to permit that. There are no safeguards here. If the Senator is relying on EPA's backbone to prevent it, then the Senator is asking for something that has not been visible on this subject in this Congress.
Mr. FONG. Since I have only a few minutes, may I say, Mr. President, we are not going to let the House tell us what to do. We are not letting the House dictate to us.
Mr. President, on the question of germaneness, the entire Senate, 100 Members, will have a chance to express an opinion as to whether or not the question of germaneness is correct. So we are not asking the House of Representatives, by the question of germaneness, to dictate to us. In asking for a vote on the question of germaneness, I am asking that the Senate, 100 Members, decide if the question is germane or not. This question is left to the dictates of the conscience of this body and not the House.
Mr. President, I wish to read from the report of the House. It states on page 11:
The Committee recommends that the $54,000,000 be distributed by program as follows:
Complete pilot scale evaluation of fine particulate control technology on combustion sources, $4,000,000.
Demonstrate advanced waste heat control and utilization technology including dry cooling towers and closed loop systems, $3,000,000.
Develop commercially practicable fuel cell designs for both stationary and mobile energy storage and transmission application, $6,000,000.
Demonstrate the commercial application of municipal waste as an energy source for industrial combustion, $1,000,000.
Initiate commercial demonstration of chemical coal cleaning technology, $34,000,000.
Improve stationary combustion techniques for the control of nitrogen oxide emissions, $6,000,000.
All of this adds up to $54 million. Here we are appropriating $54 million, most for clean air technology in the field of energy. How can EPA go very much wrong if we give them this flexibility?
We are not dictating to the House and the House is not dictating to us by telling us what to do in this bill. We are asking that the whole Senate vote on it so that each Senator by his own conscience will show what he believes to be right by voting on the question of germaneness.
The PRESIDING OFFICER. Who yields time
Mr. ROBERT C. BYRD. Mr. President, is there any more time?
The PRESIDING OFFICER. All time on the point of order has expired.