May 14, 1974
Page 14523
ENERGY SUPPLY AND ENVIRONMENTAL COORDINATION ACT OF 1974
The ACTING PRESIDENT pro tempore. Under the previous order, the Senate will now proceed to the consideration of H.R. 14368.
The Senate proceeded to consider the bill (H.R. 14368) to provide for means of dealing with energy shortages by requiring reports with respect to energy resources, by providing for temporary suspension of certain air pollution requirements, by providing for coal conversion, and for other purposes, which was read twice by its title.
Mr. ROBERT C. BYRD. Mr. President, I suggest the absence of a quorum, and I ask unanimous consent that the time not be charged to either side.
The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
The clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, I ask unanimous consent that during consideration of and voting on H.R. 14368, the following staff members of the Committee on Public Works be allowed the privilege of the floor: M. Barry Meyer, Phillip Cummings, John W. Yago, Richard Grundy, Leon Billings, Bailey Guard, Richard Hellman, Richard Herod, Charlene Sturbitts, and Jackie Schaefer.
The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. RANDOLPH. Mr. President, a point of clarification.
The ACTING PRESIDENT pro tempore. The Senator from West Virginia.
Mr. RANDOLPH. The control of the time agreed to yesterday was between the chairman of the Committee on Public Works and the ranking minority member of the Committee on Public Works. In view of that parliamentary situation, I yield control of the time to the Senator from Maine, who is chairman of our Subcommittee on Environmental Pollution, Mr. MUSKIE, to manage this proposal on behalf of the committee.
Mr. BAKER. Mr. President, will the Senator yield?
Mr. RANDOLPH. I yield.
Mr. BAKER. The RECORD discloses that time on this bill be allocated to him and to me. I wish to cede the time under my control to the Senator from New York (Mr. BUCKLEY), who will be here shortly and will handle the floor debate from the minority standpoint.
Mr. MUSKIE. Mr. President, I ask unanimous consent that Jackie Schaefer, a member of the staff of the committee, be granted the privilege of the floor during the consideration of this measure.
The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
MUSKIE. Mr. President, I call up my amendment No. 1303 to the pending measure and ask that it be stated.
The ACTING PRESIDENT pro tempore. The amendment will be stated.
The legislative clerk proceeded to read the amendment.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the further reading of the amendment be dispensed with.
The ACTING PRESIDENT pro tempore, Without objection, it is so ordered.
The amendment is as follows:
Strike all after the enacting clause and insert the following:
SECTION 1. SHORT TITLE; PURPOSE.
(a) This Act, including the following table of contents, may be cited as the "Energy Supply and Environmental Coordination Act of 1974".
TABLE OF CONTENTS
Sec. 1. Short title; purpose.
Sec. 2. Suspension authority.
Sec. 3. Implementation plan revisions.
Sec. 4. Motor vehicle emissions.
Sec. 5. Conforming amendments.
Sec. 6. Protection of public health and environment.
Sec. 7. Reports.
Sec. 8. Coal conversion and allocation.
Sec. 9. Extension of Clean Air Act authorization.
(b) The purpose of this Act is to provide for a means to assist in meeting the essential needs of the United States for fuels, in a manner which is consistent, to the fullest extent practicable, with existing national commitments to protect and improve the environment.
SEC. 2. SUSPENSION AUTHORITY.
Title I of the Clean Air Act is amended by adding at the end thereof the following new section:
"ENERGY-RELATED AUTHORITY
"SEC. 119. (a) (1) (A) The Administrator may, for any period beginning on or after the date of enactment of this section and ending on or before the earlier of June 30, 1975, or one year after the date of enactment of this section, temporarily suspend any stationary source fuel or emission limitation as it applies to any person, if the Administrator finds that such person will be unable to comply with such limitation during such period solely because of unavailability of types or amounts of fuels. Any suspension under this paragraph and any interim requirement on which such suspension is conditioned under paragraph (3) shall be exempted from any procedural requirements set forth in this Act or in any other provision of local, State, or Federal law; except as provided in subparagraph (B).
"(B) The Administrator shall give notice to the public of a suspension and afford the public an opportunity for written and oral presentation of views prior to granting such suspension unless otherwise provided by the Administrator for good cause found and published in the Federal Register. In any case, before granting such a suspension he shall give actual notice to the Governor of the State, and to the chief executive officer of the local government entity in which the affected source or sources are located. The granting or denial of such suspension and the imposition of an interim requirement shall be subject to judicial review only on the grounds specified in paragraphs (2)(B), (2) ©), or (2) (D) of section 706 of title 5, United States Code, and shall not be subject to any proceeding under section 304 (a) (2) or 307 (b) and (c) of this Act.
"(2) In issuing any suspension under paragraph (1) the Administrator is authorized to act on his own motion without application by any source or State.
"(3) Any suspension under paragraph (1) shall be conditioned upon compliance with such interim requirements as the Administrator determines are reasonable and practicable. Such interim requirements shall include, but need not be limited to, (A) a requirement that the source receiving the suspension comply with such reporting requirements as the Administrator determines may be necessary, (B) such measures as the Administrator determines are necessary to avoid an imminent and substantial endangerment to health of persons, and (C) requirements that the suspension shall be inapplicable during any period during which fuels which would enable compliance with the suspended stationary source fuel or emission limitations are in fact reasonably available to that person (as determined by the Administrator). For purposes of clause (C) of this paragraph, availability of natural gas or petroleum products which enable compliance shall not make a suspension inapplicable to a source described in subsection (b) (1) of this section.
"(4) For purposes of this section:
"(A) The term "stationary source fuel or emission limitation' means any emission limitation, schedule, or time table for compliance, or other requirement, which is prescribed under this Act (other than section 303, 11(b), or 112) or contained in an applicable implementation plan (other than a requirement imposed under authority described in section 110 (a) (2) (F) (v) ), and which is designed to limit stationary source emissions resulting from combustion of fuels, including a prohibition on, or specification of, the use of any fuel of any type or grade or pollution characteristic thereof.
"(B) The term 'stationary source' has the same meaning as such term has under section 111 (a) (3).
"(b) (1) Except as provided in paragraph (2) of this subsection, any fuel-burning stationary source
"(A) which is prohibited from using petroleum products or natural gas as fuel by reason of an order issued under section 8(a) of the Energy. Supply and Environmental Coordination Act of 1974, or
"(B) which the Administrator determines began conversion to the use of coal as fuel during the ninety-day period ending December 15, 1973, and, consistent with the criteria established in this section should use coal after the expiration of any suspension approved pursuant to section 119 (a) of the Clean Air Act, and which is located in an air quality control region in which applicable national primary ambient air quality standards are not being exceeded and which converts to the use of coal as fuel, shall not, until January 1, 1979, be prohibited, by reason of the application of any air pollution requirement, from burning coal which is available to such source. For purposes of this paragraph, the term 'began conversion' means action by the owner or operator of a source during the ninety-day period ending on December 15, 1973 (such as entering into a contract binding on the operator of the source for obtaining coal, or equipment or facilities to burn coal; expending substantial sums to permit such source to burn coal; or applying for an air pollution variance to enable the source to burn coal) which the Administrator finds evidences a decision (made prior to December 15, 1973) to convert to burning coal as a result of the unavailability of an adequate supply of fuels required for compliance with the applicable implementation plan, and a good faith effort to expeditiously carry out such decision.
"(2) (A) Paragraph (1) of this subsection shall apply to a source only if (I) the Administrator finds that emissions from the source will not cause or contribute to concentrations of air pollutants in excess of national primary ambient air quality standards and (II) if the source has submitted to the Administrator a plan for compliance for such source which the Administrator has 4pproved, after notice to interested persons and opportunity for presentation of views (including oral presentation of views). A plan submitted under the preceding sentence shall be approved only if it (1) meets the requirements of regulations prescribed under subparagraph (B); and (ii) provides that such source will comply with requirements which the Administrator shall prescribe to assure that emissions from such source will not cause or contribute to concentrations of air pollutants in excess of national primary ambient air quality standards. The Administrator shall approve or disapprove any such plan within 60 days after such plan is submitted.
"(B) The Administrator shall prescribe regulations requiring that any source to which this subsection applies submit and obtain approval of its means for and schedule of compliance. Such regulations shall include requirements that such schedules shall include dates by which such sources must
"(i) enter into contracts (or other enforceable obligations) which have received prior approval of the Administrator as being adequate to effectuate the purposes of this section and which provide for obtaining a long term supply of coal which enables such source to achieve the emission reduction required by subparagraph (C), or
"(ii) if coal which enables such source to achieve such emission reduction is not available to such source, enter into contracts (or other enforceable obligations) which have received prior approval of the Administrator as being adequate to effectuate the purposes of this section and which provide for obtaining (I) a long-term supply of other coal or coal derivatives, and (II) continuous emission reduction systems necessary to permit such source to burn such coal or coal derivatives, and to achieve the degree of emission reduction required by subparagraph (C).
"(C) Regulations under subparagraph (B) shall require that the source achieve the most stringent degree of emission reduction that such source would have been required to achieve under the applicable implementation plan which was in effect on the date of enactment of this section (or if no applicable implementation plan was in effect on such date, under the first applicable implementation plan which takes effect after such date). Such degree of emission reduction shall be achieved as soon as practicable, but not later than January 1, 1979; except that, in the case of a source for which a continuous emission reduction system is required for sulfur-related emissions, reduction of such emissions shall be achieved on a date designated by the Administrator (but not later than January 1, 1979). Such regulations shall also include such interim requirements as the Administrator determines are reasonable and practicable including requirements described in clauses (A) and (B) of subsection (a) (3) and requirements to file progress reports.
"(D) The Administrator (after notice to interested persons and opportunity for presentation of views, including oral presentations of views, to the extent practicable) (f) may, prior to the earlier of June 30, 1975, or one year after the date of enactment of this section, and shall thereafter prohibit the use of coal by a source to which paragraph (1) applies if he determines that the use of coal by such source may cause' or contribute to concentrations of air pollutants in excess of national primary ambient air quality standards; and (ii) may require such source to use coal of any particular type, grade, or pollution characteristic if such coal is available to such source. Nothing in this subsection (b) shall prohibit a State or local agency from taking action which the Administrator is authorized to take under this subparagraph.
"(3) For purposes of this subsection, the term 'air pollution requirement' means any emission limitation, schedule, or timetable for compliance, or other requirement, which is prescribed under any Federal, State, or local law or regulation, including this Act (except for any requirement prescribed under this subsection, section 110(a) (2) (F) (v), or section 303), and which is designed to limit stationary source emissions resulting from combustion of fuels (including a restriction on the use or content of fuels). A conversion to coal to which this subsection applies shall not be deemed to be a modification for purposes of section 111(a) (2) and (4) of this Act.
"(4) A source to which this subsection applies may, upon the expiration of the exemption under paragraph (1), obtain a one year postponement of the application of any requirement of an applicable implementation plan under the conditions and in the manner provided in section 110(f).
"(c) The Administrator may by rule establish priorities under which manufacturers of continuous emission reduction systems necessary to carry out subsection (b) shall provide such systems to users thereof, if he finds that priorities must be imposed in order to assure that such systems are first provided to users in air quality control regions with the most severe air pollution. No rule under this subsection may impair the obligation of any contract entered into before enactment of this section. To the extent necessary to carry out this section, the Administrator may prohibit any State or political subdivision from requiring any person to use a continuous emission reduction system for which priorities have been established under this subsection except in accordance with such priorities.
"(d) The Administrator shall study, and report to Congress not later than six months after the date of enactment of this section, with respect to–
"(1) the present and projected impact on the program under this Act of fuel shortages and of allocation and end-use allocation programs;
"(2) availability of continuous emission reduction technology (including projections respecting the time, cost, and number of units available) and the effects that continuous emission reduction systems would have on the total environment and on supplies of fuel and electricity;
"(3) the number of sources and locations which must use such technology based on projected fuel availability data;
"(4) priority schedule for implementation of continuous emission reduction technology based on public health or air quality;
"(5) evaluation of availability of technology to burn municipal solid waste in these sources including time schedules, priorities analysis of unregulated pollutants which will be emitted and balancing of health benefits and detriments from burning solid waste and of economic costs;
"(6) projection of air quality impact of fuel shortages and allocations;
"(7) evaluation of alternative control strategies for the attainment and maintenance of national ambient air quality standards for sulfur oxides within the time frames prescribed in the Act, including associated considerations of cost, time frames, feasibility, and effectiveness of such alternative control strategies as compared to stationary source fuel and emission regulations;
"(8) proposed allocations of continuous emission reduction systems which do not produce solid waste to sources which are least able to handle solid waste byproducts of such systems; and
"(9) plans for monitoring or requiring sources to which this section applies to monitor the impact of actions under this section on concentration of sulfur dioxide in the ambient air.
"(e) No State or political subdivision may require any person to whom a suspension has been granted under subsection (a) to use any fuel the unavailability of which is the basis of such person's suspension (except that this preemption shall not apply to requirements identical to Federal interim requirements under subsection (a) (3) ).
" (f) (1) It shall be unlawful for any person to whom a suspension has been granted under subsection (a) (1) to violate any requirement on which the suspension is conditioned pursuant to subsection (a) (3).
"(2) It shall be unlawful for any person to violate any rule under subsection (c).
"(3) It shall be unlawful for the owner or operator of any source to fail to comply with any requirement under subsection (b) or any regulation, plan, or schedule thereunder.
"(4) It shall be unlawful for any person to fail to comply with an interim requirement under subsection (i) (3),
"(g) Beginning January 1, 1975, the Administrator shall publish at no less than one- hundred- and-eighty-day intervals, in the Federal Register, the following:
"(1) A concise summary of progress reports which are required to be filed by any person or source owner or operator to which subsection (b) applies. Such progress reports shall report on the status of compliance with all requirements which have been imposed by the Administrator under such subsections.
"(2) Up-to-date findings on the impact of this section upon–
"(A) applicable implementation plans, and
"(B) ambient air quality.
"(h) Nothing in this section shall affect the power of the Administrator to deal with air pollution presenting an imminent and substantial endangerment to the health of persons under section 303 of this Act.
"(1) (1) In order to reduce the likelihood of early phase-out of existing electric generating facilities, any electric generating power plant (A) which, because of the age and condition of the plant, is to be taken out of service permanently no later than January 1, 1980, according to the power supply plan (in existence on January 1, 1974) of the operator of such plant, (B) for which a certification to that effect has been filed by the operator of the plan with the Environmental Protection Agency and the Federal Power Commission, and (C) for which the Commission has determined that the certification has been made in good faith and that the plan to cease operations no later than January 1, 1980, will be carried out as planned in light of existing and prospective power supply requirements, shall be eligible for a single one-year postponement as provided in paragraph (2).
"(2) Prior to the date on which any plant eligible under paragraph (1) is required to comply with any requirement of an applicable implementation plan, such source may apply (with the concurrence of the Governor of the State in which the plant is located) to the Administrator to postpone the applicability of such requirement to such source for not more than one year. If the Administrator determines, after balancing the risk to public health and welfare which may be associated with a postponement, that compliance with any such requirement is not reasonable in light of the projected useful life of the plant, the availability of rate base increases to pay for such costs, and other appropriate factors, then the Administrator shall grant a postponement of any such requirement.
"(3) The Administrator shall, as a condition of any postponement under paragraph (2), prescribe such interim requirements as are practicable and reasonable in light Of the criteria in paragraph (2).
"(j) (1) The Administrator may, after public notice and opportunity for presentation of views in accordance with section 533 of title 5, United States Code, and after consultation with the Federal Energy Administrator, designate persons to whom fuel exchange orders should be issued. The purpose of such designation shall be to avoid or minimize the adverse impact on public health and welfare of any suspension under subsection (a) of this section or conversion to coal to which subsection (b) applies or of any allocation under section 8 of the Energy Supply and Environmental Coordination Act of 1974 or the Emergency Petroleum Allocation Act of 1973.
"(2) The Federal Energy Administrator shall issue exchange orders to such persons as are designated by the Administrator under paragraph (1) requiring the exchange of any fuel subject to allocation under the preceding Acts effective no later than forty-five days after the date of the designation under paragraph (1), unless the Federal Energy Administrator determines, after consultation with the Administrator, that the costs or consumption of fuel resulting from such exchange order, will be excessive.
"(3) Violation of any exchange order issued under paragraph (2) shall be a prohibited act and shall be subject to enforcement action and sanctions in the same manner and to the same extent as a violation of any requirement of the regulation under section 4 of the Emergency Petroleum Allocation Act of 1973."
SEC. 3. IMPLEMENTATION PLAN REVISIONS.
Section 110(a) of the Clean Air Act is amended in paragraph (3) by inserting "(A)" after "(3)" and by adding at the end thereof the following new subparagraph:
"(B) For any air quality control region in which the Administrator determines the applicable primary air quality standard is being exceeded, the Administrator shall review the applicable implementation plan and no later than ninety days after such determination report to the State on whether such plan can be revised in relation to fuel burning stationary sources without interfering with applicable national primary ambient air quality standards which the plan implements. If the Administrator determines that any such plan can be revised he shall notify the State that a plan revision may be submitted by the State within three months after the date of notice to the State of such determination. Any plan revision which is submitted by the State after notice and public hearing shall be approved or disapproved by the Administrator, after public notice and opportunity for public hearing, but no later than three months after the date required for submission of the revised plan."
SEC. 4. MOTOR VEHICLE EMISSIONS.
(a) Section 202(b) (1) (A) of the Clean Air Act is amended by striking out "1975" and inserting in lieu thereof "1977"; and by inserting after "(A)" the following: "The regulations under subsection (a) applicable to emissions of carbon monoxide and hydrocarbons from light-duty vehicles and engines manufactured during model years 1975 and 1976 shall contain standards which are identical to the interim standards which were prescribed (as of December 1, 1973) under paragraph (5) (A) of this subsection for light-duty vehicles and engines manufactured during model year 1975."
(b) Section 202(b) (1) (B) of such Act is amended by striking out "1976" and inserting in lieu thereof "1978"; and by inserting after "(B)" the following: "The regulations under subsection (a) applicable to emissions of oxides of nitrogen from light-duty vehicles and, engines manufactured during model years 1975 and 1976 shall contain standards which are identical to the standards which were prescribed (as of December 1, 1973) under subsection (a) for light-duty vehicles
and engines manufactured during model year 1975. The regulations under subsection (a) applicable to emissions of oxides of nitrogen from light-duty vehicles and engines manufactured during model year 1977 shall contain standards which provide that emissions of such vehicles and engines may not exceed 2.0 grams per vehicle mile.
(c) Section 202(b) (5) (A) of such Act is amended to read as follows:
"(5) (A) At any time after January 1, 1975, any manufacturer may file with the Administrator an application requesting the suspension for one year only of the effective date of any emission standard required by paragraph (1) (A) with respect to such manufacturer for light-duty vehicles and engines manufactured in model year 1977. The Administrator shall make his determination with respect to any such application within sixty days. If he determines, in accordance with the provisions of this subsection, that such suspension should he granted, he shall simultaneously with such determination prescribe by regulation interim emission standards which shall apply (in lieu of the standards required to be prescribed by paragraph (1) (A) of this subsection) to emissions of carbon monoxide or hydrocarbons (or both) from such vehicles and engines manufactured during model year 1977.
(d) Section 202(b) (5) (B) of the Clean Air Act is repealed and the following subparagraphs redesignated accordingly.
SEC. 5. CONFORMING AMENDMENTS.
(a) (1) Section 113 (a) (3) of the Clean Air Act is amended by striking out "or" before .'112(c)", by inserting a comma in lieu thereof, and by inserting after "(hazardous emissions)" the following: ", or 119(f) (relating to energy-related authorities) ".
(2) Section 113(b) (3) of such Act is amended by striking out "or 112(c)" and inserting in lieu thereof ", 112(c), or 119(f)"
(3) Section 113(c) (1) (C) of such Act is amended by striking out "or section 112(c)" and inserting in lieu thereof ", section 112 (c), or section 119(f)".
(4) Section 114(a) of such Act is amended by inserting "119 or" before "303".
(b) Section 116 of the Clean Air Act is amended by inserting "119 (b), (c), and (e)," before "209".
SEC. 6. PROTECTION OF PUBLIC HEALTH AND ENVIRONMENT.
(a) Any allocation program provided for in section 8 of this Act or in the Emergency Petroleum Allocation Act of 1973 shall, to the maximum extent practicable, include measures to assure that available low sulfur fuel will be distributed on a priority basis to those areas of the country designated by the Administrator of the Environmental Protection Agency as requiring low sulfur fuel to avoid or minimize adverse impact on public health.
(b) In order to determine the health effects of emissions of sulfur oxides to the air resulting from any conversions to burning coal to which section 119 of the Clean Air Act applies, the Department of Health, Education, and Welfare shall, through the National Institute of Environmental Health Sciences and in cooperation with the Environmental Protection Agency, conduct a study of chronic effects among exposed populations. The sum of $3,500,000 is authorized to be appropriated for such a study. In order to assure that long-term studies can be conducted without interruption, such slims as are appropriated shall be available until expended.
(c) No action taken under the Clean Air Act, or under section 8 of this Act for a period of one year after initiation of such action, shall be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act Of 1969 (83 Stat. 856). However, before any action under section 8 of this Act that has a significant impact on the environment is taken, if practicable, or in any event within sixty days after such action is taken, an environmental evaluation with analysis equivalent to that required under section 102(2) (C) of the National Environmental Policy Act, to the greatest extent practicable within this time constraint, shall be prepared and circulated to appropriate Federal, State, and local government agencies and to the public for a thirty-day comment period after which a public hearing shall be held upon request to review outstanding environmental issues. Such an evaluation shall not be required where the action in question has been preceded by compliance with the National Environmental Policy Act by the appropriate Federal agency. Any action taken under section 8 of this Act which will be in effect for more than a. one-year period or any action to extend an action taken under section 8 of this Act to a total period of more than one year shall be subject to the full provisions of the National Environmental Policy Act notwithstanding any other provision of this Act.
SEC. 7. REPORTS.
The Administrator of the Environmental Protection Agency shall report to Congress not later than January 31, 1975, On the implementation of sections 2 through 6 of this Act.
SEC. 8. COAL CONVERSION AND ALLOCATION.
(a) The Federal Energy Administrator shall, to the extent practicable and consistent with the purposes of this Act, by order, prohibit, as its primary energy source, the burning of natural gas or petroleum products by any major fuel-burning installation (including any existing electric power plant) which, on the date of enactment of this Act, has the capability and necessary plant equipment to burn coal. Any installation to which such an order applies shall not be prohibited from using petroleum products or natural gas unless the installation is located in a region described in the first sentence of section 119(b) (1), and the Administrator has made the finding specified in section 119(b)(2)(A)(I) with respect to emission from such installation. A prohibition on use of natural gas and petroleum products under this subsection shall be contingent upon the availability of coal, coal transportation facilities, and the maintenance of reliability of service in a given service area. The Federal Energy Administrator may require that fossil-fuel-fired electric powerplants in the early planning process, other than combustion gas turbine and combined cycle units, be designed and constructed so as to be capable Of using coal as a primary energy source instead of or in addition to other fossil fuels. No fossil-fuel-fired electric power plant may be required under this section to be so designed and constructed, if (1) to do so would result in an impairment of reliability or adequacy of service, or (2) an adequate and reliable supply of coal is not available and is not expected to be available. In considering whether to impose a design and construction requirement under this subsection, the Federal Energy Administrator shall consider the existence and effects of any contractual commitment for the construction of such facilities and the capability of the owner or operator to recover any capital investment made as a result of the conversion requirements of this section.
(b) The Federal Energy Administrator may by rule prescribe a system for allocation of coal to users thereof in order to attain the objective specified in this section.
(c) It shall be unlawful for any person to violate any provision of this section, or to violate any rule, regulation, or order issued pursuant to any such provision.
(d) (1) Whoever violates any provision of subsection (c) shall be subject to a civil penalty of not more than $2,500 for each violation.
(2) Whoever willfully violates any provision of subsection (c) shall be fined not more than $5,000 for each violation.
(3) It shall be unlawful for any person to offer for sale or distribute in commerce any product or commodity in violation of an applicable order or regulation issued pursuant to subsection (b). Any person who knowingly and willfully violates this paragraph after having been subjected to a civil penalty for a prior violation of the same provision of any order or regulation issued pursuant to subsection (b) shall be fined not more than $50,000 or imprisoned not more than six months, or both.
(4) Whenever it appears to any person authorized by the Federal Energy Administrator to exercise authority under this section that any individual or organization has engaged, is engaged, or is about to engage in acts or practices constituting a violation of subsection (c), such person may request the Attorney General to bring an action in the appropriate district court of the United States to enjoin such acts or practices, and upon a proper showing a temporary restraining order or a preliminary or permanent injunction shall be granted without bond. Any such court may also issue mandatory injunctions commanding any person to comply with any provision, the violation of which is prohibited by subsection (c).
(5) Any person suffering legal wrong because of any act or practice arising out of any violation of subsection (c) may bring an action in a district court of the United States, without regard to the amount in controversy, for appropriate relief, including an action for a declaratory judgment or writ of injunction. Nothing in this paragraph shall authorize any person to recover damages.
(e) Authority to issue orders, or rules under subsections (a) and (b) of this section shall expire on midnight, June 30, 1975, but the expiration of such authority shall not affect any administrative or judicial proceeding pending on such date which relates to any act or omission before such date.
SEC. 9. EXTENSION F CLEAN AIR ACT AUTHORIZATIONS.
(a) Section 104 of the Clean Air Act is amended by striking "and $150,000,000 for the fiscal year ending June 30, 1974" and inserting in lieu thereof ", $150,000,000 for the fiscal year ending June 30, 1974, and $150,000,000 for the fiscal year ending June 30, 1975."
(b) Section 212 of such Act is amended by striking "three succeeding fiscal years." and inserting in lieu thereof "four succeeding fiscal years.".
(c) Section 316 of such Act is amended by striking "and $300,000,000 for the fiscal year ending June 30, 1974" and inserting in lieu thereof ", $300,000,000 for the fiscal year ending June 30, 1974, and $300,000,000 for the fiscal year ending June 30, 1975".
Mr. MUSKIE. Mr. President, the Committee on Public Works has again examined the legislation passed by the House to amend the Clean Air Act to facilitate energy conservation. We have determined, on the basis of information available to us, that the enactment of limited amendments to the Clean Air Act at this time will be of value.
We do not believe, however, that amendments as far-reaching as the House bill are necessary, and it is for that reason that the committee has taken the rather unusual step of meeting in executive session yesterday to consider the House bill, and to report, by way of this amendment, to the Senate as a whole those amendments which we consider to be necessary at this time. We bore in mind the admonition of the distinguished chairman of the full committee that we should at this point separate from the controversial issues that have been generated by the attempts to enact emergency energy legislation those elements which are relatively noncontroversial, which have been agreed upon by a sufficient number on both sides of the Capitol so that they have a chance to reach the President's desk in the relatively near future, and it is in this spirit, Mr. President, that the Committee on Public Works has considered what is needed and proposes this amendment in the form of a substitute to H.R. 14368 which deals only with those aspects of the House bill which are critical. Not only is the Committee prepared to offer a substitute, but we are prepared to go immediately to conference with the House Interstate and Foreign Commerce Committee for the purpose of determining what can be agreed upon at this time and sent to the President.
We believe that prior to the Memorial Day recess, the President can have legislation which is needed to continue the Nation's effort to achieve greater energy conservation and to provide the automobile industry with the certainty needed to proceed with the development, certification and production of 1976 model year automobiles.
Mr. President, the amendments which I have offered fall into five categories:
First. The committee proposes to modify the coal conversion proposal of the House to narrow its application to assure, at a minimum, protection of public health.
Second. The committee proposes to limit exceptions to the Clean Air Act to permit coal conversions to areas where public health-related primary ambient air quality standards are not now exceeded. Further, no coal conversions could take place where the conversion itself would cause public health standards to be exceeded.
Third. The committee proposes to adopt an identical provision to the House bill relating to auto emissions to end any doubt as to what auto emission standards will be required for the 1976 model year vehicle.
Fourth. The committee proposal would clarify the relationship between the National Environmental Policy Act and the Clean Air Act.
Fifth. Finally, the committee proposes to extend Clean Air Act authorization for 1 year.
Let me expand upon these points briefly, for the RECORD.
The Committee on Public Works has tried to respond to the need to continue our efforts to utilize our domestic fuel supplies where such utilization will not interfere with the health of our people.
We recognize that the winter of crisis is behind us. We have tried to anticipate future crises, whether those crises result from spot-shortages of fuel or international disputes.
It is in the context of standby authority and in recognition of the need to continue energy conservation efforts that this legislation is proposed. We are not, under the threat of crisis, abandoning our environmental goals, but we are trying to propose a mechanism which will balance those environmental goals with what we perceive to be the long-term energy needs of the country.
In addition to other provisions which are identical to the house bill and the earlier conference agreement, the committee has retained the emergency suspension features of earlier proposals. Only the final date has been changed. Under this provision the Administration could waive, temporarily, clean air requirements where there was a demonstrated unavailability of conforming fuel. Waiver authority continues until June 30, 1975, but waivers can be granted only when fuels with the pollution characteristics required by State clean air implementation plans are unavailable.
The amendments to both the coal conversion and clean air section would, in accordance with a proposal advanced by Senator BUCKLEY, prohibit coal conversion in air quality control regions where primary air quality standards for sulfur oxides and/or particulates are now being exceeded.
Thus, there would be, by statute, a bar to further deterioration of already unhealthy air.
Further, pursuant to another Buckley amendment, no specific conversion could be ordered if the coal to be used in a specific facility would cause concentrations of SO2 or particulate in excess of national primary ambient air quality standards.
The floor is protection of public health. This floor combined with the June 30, 1975, expiration date on issuance of conversion orders, should assure minimal environmental risks while providing an adequate opportunity to examine the implications of the policy we propose.
I would like at this point, Mr. President, to compliment the distinguished Senator from New York for these two amendments to the bill, which, in my judgment, improve it enormously.
In the near-term, coal conversions resulting from this act may be as few as a dozen, but those conversions can and will take pressure off the oil market without endangering public health.
They can and will stimulate long-term investment in development of domestic coal resources. And they can and will provide a basis for future legislation to increase our capability to use coal.
This limited program can and will be initiated while the Congress continues to review the Clean Air Act and examines the need for broader authority to reduce dependency on foreign fuels..
As a part of that review Congress must determine the extent to which our major fuel burning stationary sources are going to have multiple energy use and environmental control capacity. And we must determine the impact of such policies on consumers.
In order to examine the environmental implications of these proposals, the Administrator of the Environmental Protection Agency is required to report to Congress on the impact of conversion.
Also, in order to maximize the potential use of limited resources, the Administrator is required to review State air quality implementation plans to determine whether or not different fuels with different pollution characteristics can be burned in designated air quality control regions without threatening public health.
Under the Conference agreement of last year, this review triggered a mandatory revision of State clean air plans. Under this bill, the States retain the authority to determine whether or not, on the basis of the review by the Administrator, a revision of any aspects of applicable implementation plans is desirable. A key feature in the proposal is the reaffirmation of State authority to make both clean air and economic growth decisions. For all practical purposes the preemption of prior legislation has been replaced with advice and assistance.
The committee bill also includes certain noncontroversial provisions of the House bill which have been before the Senate in the earlier, vetoed bill. I ask unanimous consent to include in the RECORD at the end of my remarks appropriate portions of that legislative history modified to reflect the changes in the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. MUSKIE. Mr. President, the committee bill does not include provisions of the House-passed bill relative to air quality transportation and land use controls; fuel economy studies; energy conservation studies; and energy company reporting.
The committee has included two additional amendments which were not included in the House- passed bill. We have extended for 1 year Clean Air Act funding authority. Though we have commenced hearings to review the Clean Air Act and though we are committed to a thorough review before any necessary modifying legislation is proposed, we believe it is altogether possible that the schedule of congressional activities this summer and fall may make difficult full and adequate consideration of major changes in clean air policy.
The committee wants adequate time to review the act. We want to know the results of the reports required by these amendments, and we want to have an opportunity to review, in detail, the findings of the National Academy of Sciences, expected this summer, as to the adequacy of present health-related standards and the optional control strategies which might be available to achieve those goals.
It is our intention to continue this review through the fall, as the schedule of congressional activities permits. The committee would hope to have legislative proposals on the Clean Air Act completed by early in the next session of Congress.
Mr. President, another provision in this legislation relates to clarification of the relationship between the National Environmental Policy Act and the Clean Air Act. As my colleagues know, at the time the National Environmental Policy Act was enacted in 1969, its principal sponsor, Senator JACKSON, agreed with members of the Senate Public Works Committee that the environmental review procedures were intended to apply to mission agencies – agencies whose activities impacted the environment – and not to environmental protection agencies.
The courts have repeatedly upheld the position to which Senator JACKSON and I agreed nearly 5 years ago. Unfortunately, the Environmental Protection Agency has chosen, as a result of the pressure from the other body, to ignore that intent, to ignore those court decisions, and to proceed to prepare environmental impact statements as required by section 102(2) (C) of the National Environmental Policy Act.
Mr. President, I am deeply concerned that this policy will result in extensive litigation which will interfere with both the goals and the time schedules of the Clean Air Act.
Let me provide just one example. Under the bill that passed the House and in accordance with the substitute proposed by the Senate, the auto industry could apply to the Administrator of the Environmental Protection Agency for an additional 1 year in which to meet statutory auto emissions standards. Under the law, the Administrator would have 60 days in which to make his findings. Every Senator knows that the National Environmental Policy Act procedure requires much more than 60 days to prepare an impact statement. It would take but one court, holding that the Administrator's finding on this issue was subject to those procedures, to derail the production schedules of the auto industry. Chaos would result. The Congress would be asked to respond in a panic situation.
But it is not just this kind of major chaos which I fear. The Environmental Protection Agency has, under the Clean Air Act, a wide variety of responsibilities, including registration of fuel additives, regulation of toxic emissions, establishment of test procedures for automobiles and other authorities which are major actions in the context of the proposed voluntary regulations.
Should the policy forced on Administrator Train be held mandatory by the courts, the disruption to American business and the adverse impact on the environment could be equally severe.
We cannot afford to take the risk of creating confusion and doubt in the minds of the American people as to issues the magnitude of these. The amendment which is contained in the substitute would make clear, without any doubt, that regardless of Mr. Train's "voluntary" action, there is no legal responsibility on the part of the Agency to comply with the procedures of the National Environmental Policy Act. With the adoption of this amendment, Mr. Train could freely develop a policy examining the environmental and other implications of environmental regulations without sacrificing either environmental goals or regulatory certainty. He could determine the appropriate actions for this end of review and he could make such review voluntarily. But there would be a statutory bar to any court holding that EPA's voluntary compliance with NEPA could be construed to be mandatory.
Mr. President, as I have indicated, we have tried to narrow these amendments to those which reflect our continuing concern with energy conservation and the critical need to answer pressing questions such as auto emission standards, Clean Air Act authorizations, and the NEPA/EPA controversy.
This is a good bill. It protects public health, but it permits coal conversion. It facilitates energy conservation. And it promotes self-sufficiency. It creates certainty for the auto manufacturers.
The bill provides adequate opportunity to review fully the implications of the 1970 Clean Air Act, taking maximum advantage of the studies of the National Academy of Sciences and others, and it clears up what I believe to be a grave and threatening controversy engendered as a result of the decision of application of NEPA to EPA.
I strongly urge that my colleagues adopt this substitute – and that they do so without amendment so that we may speedily go to conference, consider the other House proposals on which we have held no hearings, and return to this and the other body with a compromise agreement which can be sent to the President in fulfillment of our responsibilities on this issue.
SECTION 2. SUSPENSION AUTHORITY
This bill adds a new section 119 to the Clean Air Act which will permit the Administrator of the Environmental Protection Agency to suspend until not later than June 30, 1975 – or 1 year after enactment – any stationary source fuel or emission limitation, either upon his own motion or upon the application of a source or a State, if the source cannot comply with such limitations because of the unavailability of fuel. The Administrator of the Environmental Protection Agency is directed to give prior notice to the Governor of the State and the chief executive of the local governmental unit where the source is located. He is also directed to give notice to the public and to allow for the expression of views on the suspension prior to granting it unless he finds that good cause exists for not providing such opportunity. Judicial review of such suspension would be restricted to certain specified grounds.
The Administrator is required to condition the granting of any suspension upon adoption of any requirements that he determines are reasonable and practicable. These interim requirements must include necessary reporting requirements, and a provision that the suspension would be inapplicable during any period when clean fuels were available to such source. The Administrator would be required to determine when such fuels were in fact available. It is the intent of the committee that the Administrator in making such determination take into consideration the costs associated with any changes that would be required to be made by the source to enable it to utilize such fuel. No source which has converted to coal under section 119, however, could be required under this provision to return to the use of oil or natural gas.
The suspension would also be conditioned on adoption of such measures as the Administrator determines are necessary to avoid an imminent and substantial endangerment to the health of persons. This would authorize not only requirements that a facility shutdown during air pollution emergencies, but also – for example – a requirement that it keep a reserve supply of clean fuels on hand to be burned to avoid such emergencies.
In recognition of the need to balance energy needs with environmental requirements and the unique problems facing any source which converts to coal in response to the emergency, the amendment would authorize sources which are either ordered to convert to coal or which began to convert to coal during the 90-day period prior to December 15, 1973, to continue to use coal in compliance with the Clean Air Act as amended by this act, until as late as January 1, 1979. The authorization would only apply if the source were placed, after notice and opportunity for oral presentation of views, on a schedule approved by the Administrator of the Environmental Protection Agency. The schedule must provide a timetable for compliance with the fuel or emission limitations of the applicable implementation plan no later than January 1, 1979.
All compliance schedules under section 119(b) must also provide for compliance with interim requirements that will assure that the source will not cause concentrations of pollutants in excess of primary standards.
The committee emphasizes that the Administrator would not be able to approve a plan under section 119(b) for a utility generally. Rather, each plan approval must be for a specific plant.
There are three basic reasons for the decision to encourage continued burning of coal until at least 1979. First, in order to encourage the opening of new coal mines to increase energy supplies, the committee intends to encourage an ongoing substantial demand for such coal.
Without reasonable likelihood that new coal mines will be able to market their new production, the opening of new mines and expansion of existing mine capacity may be regarded too risky.
Second, to the extent that electric generating power plants can be encouraged to cease burning oil and natural gas, these fuels would be available to meet other energy needs, such as production of gasoline and home heating oil. Finally, since continuous emission reduction technology is available for sources such as homes, apartment houses, and small businesses, the purposes of the Clean Air Act can be better effectuated by having low pollution oil and natural gas burned to the maximum extent feasible in sources for which no effective clean up technology is available.
The committee believes that the priority effort of each source which is subject to section 119(b) should be to obtain low sulfur coal. If an adequate, long term supply of low sulfur coal is available to such a source, the Administrator should only approve a plan which requires its use – and thus compliance with air pollution requirements – as expeditiously as practicable. In such a case, the Administrator would have to disapprove a plan which proposed to wait until January 1, 1979, before beginning to burn low sulfur coal. The committee believes that requiring priority consideration of the use of non-metallurgical low sulfur coal will reduce the likelihood of extended violation of applicable emission standards.
If a source is unable to obtain an adequate, long-term supply of low sulfur coal, it may seek to come into compliance by use of a continuous emission reduction system or by use of coal by-products which would achieve the required degree of emission reduction. In such case, the source would still be required to act expeditiously to obtain an adequate supply of coal. However, compliance with all air pollution requirements would be required not later than January 1, 1979, and by a date established by the Administrator.
It is expected that the Administrator would include, but would not be limited to, the following requirements in any compliance schedule:
First, the dates by which the source will solicit bids and enter into binding contractual agreements – or other equally binding commitment – for the procurement of an adequate fuel supply to permit continued long term operation of the source;
Second, where the coal obtained by the source has sulfur content which will require installation of continuous emission reduction equipment to enable the source to comply with emission limitations, the dates for soliciting bids for such equipment, contracting for such equipment, and installation and startup of such equipment by a date that will permit a reasonable time for necessary adjustments of the equipment to maximize the reliability and efficiency of the system prior to January 1, 1979; and
Third, reasonable interim measures which the source should employ to minimize the adverse impact on air quality.
In establishing date for contracting for coal, the Administrator should determine the earliest date that is reasonable and which will permit compliance by the time specified in this section. Because the dates for obtaining coal or continuous emission reduction systems may occur at approximately the same time for more than one source which may over-burden suppliers, the Administrator is specifically authorized to establish differing dates for obtaining coal or such systems to insure availability of supplies of such coal or equipment. In making such decisions, it is expected that the Administrator will provide the earliest date for those sources in areas with the most serious pollution problems.
It is intended that when the coal available to the source necessitates the use of continuous emission reduction equipment for control of sulfur-related emissions, the source will have as much time as necessary to install the equipment and achieve timely compliance, in order to permit orderly development of technology.
In recognition of the complex factors involved in determining schedules for the various sources, the committee intends that the Administrator have broad discretion in prescribing and approving schedules of compliance to insure that sources meet the requirements of this section without overburdening production capacity for continuous emission reduction systems for sulfur control or causing unacceptable disruption in energy production capacity.
The committee does not intend to permit delay of existing compliance schedules for control of particulate emissions. Some slight delay may be necessary in light of revised compliance schedules for control of sulfur-related emissions. However, only such minor adjustments as the Administrator determines to be unavoidable should be permitted in existing compliance schedules and emission limitations for control of particulates.
SECTION 4. MOTOR VEHICLE EMISSIONS
The committee proposal amends section 202 of the Clean Air Act to continue the emission standards established by the Administrator for 1975 model year automobiles during the 1976 model year. The effect of this provision is to maintain in the 1976 model year a Federal 49-State standard of 1.5 grams per mile of hydrocarbons, 15 grams per mile of carbon monoxide and 3.1 grams per mile of oxides of nitrogen, and a standard for California of 0.9 grams per mile of hydrocarbons, 9 grams per mile, of carbon monoxide, and 2 grams per mile of oxides of nitrogen.
These standards apply to automobiles produced by all manufacturers, whether or not any individual manufacturer had applied for or received a suspension under section 202(b) (5) previous to the enactment of this act.
The amendment provides that after January 1, 1975, an automobile manufacturer may seek a single 1-year suspension of the statutory standards for hydrocarbons and carbon monoxide applicable to the 1977 model year.. The Administrator would be required to establish interim emission standards for 1977 model automobiles for hydrocarbons and carbon monoxide if he grants the suspension.
The bill amends section 202(b) (1) (B) of the Clean Air Act to establish a maximum emission standard for oxides of nitrogen of 2 grams per mile applicable nationwide to 1977 model year automobiles. This defers the previous statutory standard of 0.4 grams per mile of oxides of nitrogen until the 1978 model year. No administrative suspension would be possible from either the 1977 or 1978 standard. While the 1977 model year standard is a maximum of 2 grams per mile nationwide, under the amendment California retains the right under section 209 of the Clean Air Act to seek a waiver for a more stringent standard.
The committee is concerned with what may be unwarranted or, at least, untimely changes in EPA's certification test procedures for new automobile emissions.
It is intended that uncertainty as to requirements for compliance with such standards be minimized. Any changes in test procedures shall be kept to an absolute minimum and should occur only where such changes improve instrumentation, reduce cost of testing or improve the reliability and validity of the test results.
Mr. President, I ask unanimous consent to have printed in the RECORD from hearings we held on the NEPA-EPA problem, a portion of the opening statement I made undertaking to spell out the legislative history of the environmental impact statement; also portions of an exchange between Senator BAKER and former EPA Administrator William Ruckelshaus defining the Agency's view with respect to its obligation under the National Environmental Protection Act; also a summary of excerpts from court decisions bearing on this issue, and a summary of NEPA's legislative history on this point to enlighten the Senate and round out the RECORD on this point.
There being no objection, the material was ordered to be printed in the Record, as follows:
At this point I would like to refer to this committee's longstanding interest in the environmental performance of governmental agencies and programs outside the environmental agencies almost from the day that we assumed jurisdiction over air and water pollution.
We were concerned and challenged by the question that at the same time that we were writing tough policy enforcing the environmental performance standards upon the private sector that the Government itself, a major polluter, was not approaching the task with clean hands.
So each time that we undertook the consideration of legislation to toughen our policy with respect to the private sector, there were those in the private sector who said, "Now, when is Uncle Sam going to measure up to what you are asking us to do?"
So we wrote language into the environmental laws, precatory language largely, trying to prod the Department of Defense, the Corps of Engineers, the Atomic Energy Commission and other Federal agencies to develop an environmental conscience. When the National Environmental Policy Act came down the pipe it was decided to use that for this purpose.
The objective language was to stimulate the development of an environmental conscience in what we later came to describe as the environmental impact agencies. That is, those agencies of the Federal Government whose activity is impacted or impacted potentially in an unfavorable way upon the environment.
We decided to use the National Environmental Policy Act for that purpose. At the insistence of the Committee on Public Works a requirement was adopted, that these environmental impact agencies before they adopted any major action, policy or program that impacted upon the environment to file an environmental impact statement.
It was not considered necessary that that requirement be imposed upon those agencies whose mission it was to protect the environment. So throughout our discussions we carefully distinguished between the environmental impact agencies and the environmental protection agencies.
It was clearly our intention (whether or not we succeeded in making that clear in the legislative history or in the statutes), to impose that requirement only upon the environmental impact agencies and that in all of our discussions, the conference between the Senate and the House, the conferences among Senators, we adopted that phraseology which didn't appear in the legislation.
We were distinguishing between the environmental impact agencies, and the environmental protection agencies.
Our whole purpose, I will repeat, was to force the environmental impact agencies to take into account environmental impacts which could result from major actions taken by them. That pure and simple was the purpose.
We did not, deliberately did not want that requirement to be imposed upon the environmental protection agencies. Why not?
Number one, because it was the chief mission of environmental agencies to protect the environment. It wasn't an incidental, peripheral one. It was their chief mission.
Secondly, because it was, environmental standards to be applied were decided by the Congress of the United States and were not to be subjected to dilution by values brought into policy-making decisions by other agencies whose mission was otherwise.
We wanted the Act to impose environmental values upon the AEC, but we didn't want the Act to have the effect of permitting the AEC to impose their mission-oriented values upon EPA. That was our clear distinction.
The third reason was that, as we were writing the environmental laws, we were writing in very specific requirements as to deadlines, compliance schedules, implementation plans and so on, judicial review and all the rest.
Now to subject those very specific requirements that were written into law by the Congress of the United States to another procedure designed to be applied to mission-oriented or other mission agencies would have the effect of delaying the procedures established in the environmental laws.
This was the rationale and it was one that was developed over a decade, Mr. Train. There is no doubt in the mind of any of us who were involved in shaping NEPA what our intent was. By and large, the courts up to this point have recognized that intent and have supported it. But now having given that brief review of this committee's involvement in that issue may I read the rest of my opening statement?
Those of us who helped to formulate NEPA undertook to structure that statute to avoid the confusion which would result from applying the procedural requirements of NEPA to the environmental agencies.
Subsequently this committee extended NEPA to certain water pollution control actions, construction grants and permits for new water pollution sources.
So this has been a deliberate policy and for three years EPA policy as articulated in regulations and litigations has recognized this intent. The courts have upheld this intent and now, if I understand what has happened on the other side of the Capitol in a change in policy, not preceded by a change in law, EPA proposes to abandon these principles.
Senator MUSKIE. What are the implications of this new policy? What would happen to the pace of environmental enhancement if the courts hold that the policy cannot be as selective as the proposed regulations specify?
What would happen to standards already set to actions already in progress?
Will established health-related air quality standards be suspended pending a NEPA review? Will existing implementation plans including compliance schedules, emission limits and transportation controls be suspended pending compliance with NEPA procedure and associated litigation?
What would be the impact en the judicial review procedures specified in the Clean Air Act if a separate, independent NEPA-related judicial review is available?
How will conflicts between statutory deadlines and NEPA's regulatory time constraints be resolved? How could variances such as those required this winter to cope with energy shortages have been approved without unacceptable delay?
These are but a few of the many questions raised by EPA's proposed reversal of policy. It is because of those doubts that this policy must necessarily be the result of the legislative process.
EPA is prohibited from complying with NEPA. To carry out the proposed policy requires a change in the law. The principal sponsor of NEPA in the other body has introduced such legislation.
I would hope that the result of these hearings would be the administrator's agreement to adhere to the legislative process and to abandon his unilateral course and reject this dubious policy.
U.S. SENATE,
COMMITTEE ON PUBLIC WORKS,
Washington, D.C.,
October 3.1973.
To Senator EDMUND S. MUSKIE.
From Leon G. Billings.
Subject Additional Issues Regarding NEPA-EPA.
Last Friday afternoon you asked for the basic arguments to justify the position that the application of the National Environmental Policy Act to the regulatory activities of the Environmental Protection Agency would be substantive rather than procedural. This issue was addressed in joint hearings with the Committee on Interior in March of 1972. At that time, Administrator Ruckelshaus testified that EPA did not believe that the procedures of NEPA were applicable to all environmental programs. The following statements from his testimony are relevant:
"Our programs fall into two groups according to the categories set forth in CEQ's guidelines on Federal agency responsibilities under NEPA. Under the guidelines, EPA, as an environmental regulatory agency, was not responsible for preparing impact statements for its environmental regulatory activities, but was required to prepare them for its other activities."
"We believe that most of our standards setting and enforcement activities, including the pesticides registration, water quality standards approval and enforcement, standards setting implementation plans under the Clean Air Act, and others, fall within the category of environmental regulatory activities. Accordingly, we do not believe that NEPA required impact statements for our actions under these programs. Nor do we believe that this policy should be changed until the full implications and ramifications of such change have been thoroughly examined."
There was considerable discussion of the impact of applying NEPA to EPA in an exchange of correspondence between Senator Baker and the Administrator. In response to the question:
"Assuming for the purposes of this question that all EPA activities are held subject to NEPA by the judiciary, and assuming for the purposes of this question that no legislative or regulatory relief from such a holding is forthcoming, given the Calvert Cliffs doctrine that NEPA requires an overall "balancing judgment" with respect to each "major federal action," would you interpret NEPA in such a way as to:
a. alter in any way your mandate under the Clean Air Act to establish ambient air quality standards with an adequate margin of safety at a level necessary to protect public health?
b. alter in any way the mandate of the Clean Air Act that new source performance standards be established with reference to the best available technology?
c. permit the EPA to modify any of its basic enabling statutes, on the basis of the "balancing judgment," so as to impose a less stringent standard than would otherwise have been imposed?
d. similarly, permit the EPA to impose more stringent standards than those provided for in the basic enabling Acts; and if so, against what criteria?"
Administrator Ruckelshaus replied:
"In short, EPA's basic enabling statutes specify the levels at which various standards must be set, and specify the factors that must be taken into account in setting the standards. We intend to comply with these Congressional directives, to the best of our ability. We do not think that we can violate these directives by making the standards either more stringent, or less stringent, than our basic enabling statutes.
"The point is that the preparation of environmental impact statements required under NEPA is designed to set forth information concerning the environmental consequences of proposed Federal actions, the alternatives to such actions, and other related factors. The purpose of gathering this information is to lay a foundation for a balancing by the agency. This balancing is intended to affect Federal decision-making to assure that environmental considerations be given appropriate weight.
"In other words, environmental impact statements are not merely sterile academic exercises; they are intended to – and they do – have an actual substantive effect on Federal agencies' decisions.
"Where Congress has specifically directed the factors to be considered in establishing environmental protective regulations, the Federal action often will be quite different from a decision which would result from balancing the broader range of values covered by NEPA. For these reasons, application of NEPA to our regulatory programs would pose a difficult dilemma. We cannot speculate what directives might be given to EPA by a court if it concluded that NEPA does apply to our environmental regulatory activities. As indicated above, we believe that the specific statutes governing our environmental regulatory programs are at least to some extent inconsistent with the provisions of NEPA. Therefore, if a court concludes that we are subject to NEPA it quite logically might also go on to direct that we disregard certain limitations imposed by our basic statutes. This in turn might require us to issue standards at levels either more stringent or less stringent than those called for by our basic statutes."
CITATIONS ON NEPA-EPA QUESTION
1. Getty Oil Company v. Ruckelshaus (3rd Circuit-September 12, 1972).
"It's apparent that the Clean Air Act itself contains sufficient provisions for the achievement of those goals sought to be attained by NEPA."
2. International Harvester v. Ruckelshaus (D.C. Circuit February 10, 1973).
"Although we do not reach the question whether EPA is automatically and completely exempt from NEPA, we see little need in requiring a NEPA statement from an agency whose raison d'etre is the protection of the environment and whose decision on suspension is necessarily infused with the environmental considerations so pertinent to Congress in designing the statutory framework. To require a "statement" in addition to a decision setting forth the same consideration, would be a legalism carried to the extreme."
3. Appalachian Power v. EPA (4th Circuit April 11, 1973).
"We are convinced that while NEPA applies to "all agencies of the Federal government" and requires an impact statement for every major Federal action "significantly affecting the quality of the human environment," it is inapplicable to the action of the Administrator in seeking, through the approval of State implementation plans, to improve "the quality of human environment," (The court also cited Getty Oil 467 F.2d 359)
4. Duquesne Light Co. v. EPA (3rd Circuit June 5, 1973).
"Presented with the square holding of the 4th Circuit (Appalachian Power case), and the logically appeal pronouncements of this court, the District of Columbia Circuit Court and the District Court in Delaware, we hold that, in approving the State implementation plans, the Administrator is not required to meet the impact statement requirements of the NEPA – certainly in the context of this case.
5. Anaconda v. Ruckelshaus (10th Circuit August 8, 1973) .
"The important point here is that the EPA's sole mission is to improve the quality of the human environment. To compel the filing of impact statements could only serve to frustrate the accomplishment of the Act's objectives. Moreover the legislative history which is developed in Portland Cement Association v. Ruckelhaus (D.C. Circuit June 29, 1973), clearly establishes that such a statement was not contemplated by Congress." Furthermore, no Court of Appeals has held that such an impact statement is necessary and the several decisions which have considered it have ruled that it is not. See Appalachian Power v. EPA 477 F. 2d 495, 4th Circuit April 11, 1973; Duquesne Light Co; v. EPA 3rd Circuit June 5, 1973; Buckeye Power, Inc. v EPA 6th Circuit June 28, 1973; International Harvester v. Ruckelshaus D.C. Circuit February 10, 1973).
6. Essex Chemical Corporation v. Ruckelshaus (D.C. Circuit September 10, 1973).
This case quotes the Portland Cement case and continues the view that the regulatory functions of EPA – under the Clean Air Act, in this case the new source performance standards under section 111, do not require environmental impact statements under NEPA. The court in Essex Chemical quoted the court decision in Portland Cement. "What is decisive, ultimately, is the reality that, section 111 of the Clean Air Act, properly construed, requires the functional equivalent of a NEPA impact statement."
I do not have copies of the Portland Cement case cited above or another case, Buckeye Power, Inc. v. EPA (6th Circuit, June 28, 1973). Both cases support the same concept.
1. Getty Oil.
Enforcement of a violation of a provision in an implementation plan.
2. International Harvester.
Section 202 automobile extension challenge.
3. Appalachian Power.
Challenge of approval of State implementation plan.
4. Duquesne Light.
Challenge of approval of State implementation plan.
5. Anaconda.
Challenge of substitution for State implementation plan.
6. Essex.
Challenge of new source performance standards.
LEGISLATIVE HISTORY OF NEPA
It was clearly intended, at the time Congress enacted NEPA, that environmental regulatory agencies such as those authorized by FWPCA and the Clean Air Act would not be subject to NEPA's provisions.
The debate in the Senate and the House at the time of approval of the Conference Report on NEPA is abundantly clear.
In a summary of major changes adopted by the Conference Committee which Senator Jackson (primary sponsor and floor manager of NEPA) included in the Record, the following statement appears:
"Many existing agencies such as the National Park Service, the Federal Water Pollution Control Administration, and the National Air Pollution Control Administration already have important responsibilities in the area of environmental control. The provisions of section 102 (as well as 103) are not designed to result in any change in the manner in which they carry out their environmental protection authority."
"It is not the intent of the Senate conferees that the review required by section 103 would require existing environmental control agencies such as the Federal Water Pollution Control Administration and National Air Pollution Control Administration to review their statutory authority and regulatory policies which are related to maintaining and enhancing the quality of the environment. This section is aimed at those agencies which have little or no authority to consider environmental values." (CONGRESSIONAL RECORD, VOL 115, pt. 30, p. 40423.)
Senator Muskie made the following statement as regards Senator Jackson's explanation:
"It is clear then, and this is the clear understanding of the Senator from Washington and his colleagues, and those if us who serve on the Public Works Committee, that the agencies having authority in the environmental improvement field will continue to operate under their legislative mandate as previously established, and that those legislative mandates are not changed in any
way by Section 102-5." (CONGRESSIONAL RECORD, vol. 115, pt. 30, p. 40423.)
Also, in a colloquy with Senator Boggs, Senator Muskie extended his comments on the understanding of the Senate as regards the relationship between FWPCA and NEPA:
"Mr. Boggs. Am I correct that the thrust of the direction contained in S. 1075 deals with what we might call the environmental impact agencies rather than the environmental enhancement agencies, such as the Federal Water Pollution Control Administration or National Air Pollution Control Administration.
"Mr. Muskie. Yes. Sections 102 and 103, and I think Section 105, contain language designed by the Senate Committee on Interior and Insular Affairs to apply strong pressures on those agencies that have an impact on the environment – the Bureau of Public Roads, for example, the Atomic Energy Commission, and others. This strong language in that section is intended to bring pressure on those agencies to become environment conscious, to bring pressure upon them to respond to the needs of environmental quality, to bring pressure upon them to develop legislation to deal with those cases where their legislative authority does not enable them to respond to these values effectively, and to reorient them toward a consciousness of and sensitivity to the environment.
"Of course this legislation does not impose a responsibility or an obligation on those environmental-impact agencies to make final decisions with respect to the nature and extent of the environmental impact of their activities. Rather than performing self-policing functions, I understand that the nature and extent of environmental impact will be determined by the environmental control agencies.
"With regard to the environmental improvement agencies such as the Federal Water Improvement Administration and the Air Quality Administration, it is clearly understood that those agencies will operate on the basis of the legislative charter that has been created and is not modified in any way by S. 1075." (CONGRESSIONAL RECORD, vol. 115, pt. 30, p. 40425.)
Finally during consideration of the NEPA Conference Report in the House of Representatives, the following exchange between Representative George Fallon and House floor manager Representative John Dingell appears:
"What would be the effect of this legislation on the Federal Water Pollution Control Agency?
"Answer: Many existing agencies such as the Federal Water Pollution Control Agency already have important responsibilities in the area of environment control. The provisions of Sections 102 and 103 are not designed to result in any change in the manner in which they carry out their environmental protection authority. This provision is primarily designed to assure consideration of environmental matters by agencies in their planning and decision-making – but most especially those agencies who now have little or no legislative authority to take environmental considerations into account. (CONGRESSIONAL RECORD, vol. 115, pt. 30, p. 40925.)
SENATOR RANDOLPH ADVOCATES A RECONCILIATION F ENVIRONMENTAL AND ENERGY POLICIES
Mr. RANDOLPH. Mr. President, I hope that we can have a prompt and a reasoned discussion on the important matters that are contained in this action, finalized by the Public Works Committee yesterday.
Senator JACKSON has informed me that there is no problem in the Interior and Insular Affairs Committee in reference to the Public Works Committee's action on this legislation today. There also will be an opportunity, of course, for the Senator from Washington (Mr. JACKSON), or others of that committee, to discuss the matters in which they may be concerned.
The proposed committee substitute for the House-passed version of the Energy Supply and Environmental Coordination Act of 1974 is concerned with matters – and I emphasize this – matters that have previously been considered by the Senate.
For the most part, what we are doing here is amending the Clean Air Act to provide that statute with additional flexibility to adjust to the realities of uncertain and inadequate energy supplies and with adjustments in the schedule for meeting Federal automobile emission standards.
All of these items have been carefully considered in the past by the Committee on Public Works. We held extensive hearings last year and participated actively in the conference on the Emergency Energy Act which included the subject matter that will be discussed today.
Mr. President, the measure before us now originally was title II of S. 3267, the Standby Energy Emergency Authorities Act, which has been discussed in recent days in this body. Members of our committee and others also have discussed the matters as part of the broader proposal presented by the Interior and Insular Affairs Committee.
Title II of that measure was deleted from the bill reported by the Committee on Interior and Insular Affairs. Since most of its provisions fall within the jurisdiction of the Committee on Public Works, we once again reviewed them in the context of the events of recent months.
During this period, members of our committee conferred with our colleagues in the House of Representatives, and it was agreed that the other body would act first on this legislation. The House did act and passed H.R. 14368 on May 1, 1974. The Committee on Public Works then met and approved the substitute version which, as I have indicated, is now before the Senate for consideration.
All members of the Committee on Public Works have been greatly concerned with this problem. They have been diligent in their attention to both the short-term and long-range ramifications of the energy situation, particularly as they relate to our efforts to improve environmental quality. In the preparation of this measure which we consider today the chairman of our Subcommittee on Environmental Protection, Senator MUSKIE, made valuable contributions, as did the ranking minority members of the full committee and subcommittee, Senators BAKER and BUCKLEY.
Our success in bringing this measure promptly to the Senate also was greatly facilitated by the efforts and participation of the other members of the committee, Senators MONTOYA, GRAVEL, BENTSEN, BURDICK, CLARK, BIDEN, STAFFORD, WILLIAM L. SCOTT, McCLURE, and DOMENICI.
One of the problems that we have dealt with in this legislation, which is of great importance, is our efforts to be realistic in meeting problems imposed by inadequate and uncertain fuel supplies.
We recall, Mr. President, that last year during the energy crisis, particularly last winter, a number of electric generating plants were permitted to switch temporarily from the use of oil to coal.
The legislation we have in the Senate today clarifies and revises the legal basis for this coal conversion so that the Federal Energy Administrator can mandate this step, in appropriate cases, to provide substantial relief from the unavailability of short supplies of clean fuels.
I turn aside at this moment to note that one firm, a utility company in New England, had purchased $20 million worth of coal, some 500,000 tons of coal, for use in its reconversion process. Waivers had been granted by the State of Massachusetts to permit this action. Then the Federal Environmental Protection Agency, acting, I am sure, on their interpretation, of the Clean Air Act found that the reconversion could not move forward, even for a temporary period of time.
Therefore, we provide in this legislation, for electric utilities and other major fuel-burning facilities to continue to burn coal after June 1975, when the present regulations, under the Clean Air Act, Mr. President, might prevent the necessary – and I use the word advisedly – burning of coal. My amendment contains language temporarily postponing compliance with certain standards of reduction of automobile emissions. These provisions are identical to those earlier approved – I want to emphasize "those earlier approved" – by the Senate and House conferees, and later ratified by the Senate itself.