August 4, 1976
Page 25577
Mr. HUDDLESTON. Mr. President, some of the provisions in S. 3219 that concern me are those in section 9 relating to delayed compliance orders and penalties. Curiously, there has been little public note or discussion of this section.
To understand this provision, one must go back to the Clean Air Amendments of1970. While that law generally is regarded as an excellent piece of legislation, inclusion in it of seemingly arbitrary mandated compliance dates has proved to be somewhat of a problem.
In 1972, when the Administrator of the Environmental Protection Agency approved State implementation plans in accordance with the act, he noted that it would be impossible to carry out all the plans within the allotted times. In subsequent enforcement of the plans, EPA and the States, indeed, found it necessary to issue enforcement orders with compliance dates which extend years beyond the date mandated in law for attainment and maintenance of the national ambient air quality standards. It was not, in many cases, a matter of not wanting to comply or not trying to comply. It was simply that many sources physically could not — even assuming unlimited funds — comply with all requirements within the allowed time. It is important to note that compliance with emission limitations is required, even though ambient air quality is such that health and welfare are protected.
The Senate bill before us now includes new deadlines: January 1, 1979, for most sources, including those that already have been issued enforcement orders with later compliance dates;
July 1, 1980, for sources ordered by FEA to convert to coal or those switching to coal because of natural gas curtailment;
January 1, 1981, for those willing to undertake the expense and risk of experimenting with innovative technology; and for sources subject to newly promulgated plans or revised requirements that are more stringent than originally approved, 3 years after such promulgation or revision.
As I understand it, if compliance is later than those mandatory dates, the source automatically would have to begin paying delayed compliance penalties — unless it can be shown that noncompliance is beyond the owner's control.
An example of the problems caused bythe compliance penalties in S. 3219 may prove helpful.
Louisville Gas & Electric Co. in my home State of Kentucky has been praised by EPA as most cooperative and enlightened. They pioneered application of flue gas desulfurization in this country, and they have signed a consent order calling for installation of scrubbers throughout their system. For some units, however, compliance dates extend as late as 1985. EPA recognizes that it takes time to design, order, fabricate, install, finance, and bring into operation controls for an entire electric utility system without sacrificing integrity and reliability of service, and such considerations undoubtedly went into the Agency's decision regarding practicable compliance dates. Under S. 3219, however, it appears that the company would begin paying automatic penalties of some $3,000,000 per year for those units that are not in operation by January 1, 1979.
I cannot believe that the committee intended to declare such a cooperative company in bad faith on that arbitrary date, and to subject it to such penalties.
The committee report says the penalties would be imposed to overcome economic advantage gained by noncomplying sources, and to prod the recalcitrants who find it cheaper to pay attorneys' fees for litigation than to purchase control equipment.
In light of the types of noncomplying sources listed by EPA: Municipal incinerators, public power plants, schools, Army and Navy installations, two GSA power plants right here in the shadow of the Capitol, and many similar facilities, this reasoning is not at all clear to me. How do such publicly owned sources, through delaying tactics, gain an economic advantage over similar sources?
These are my concerns regarding section 9 of S. 3219. I hope the conferees in reconciling the differences between this bill and whatever similar legislation might come from the House, will seek to address the issues I have raised.
Mr. STAFFORD. I am pleased that the committee has sought in this bill to find imaginative new means for encouraging the most expeditious abatement of pollution, while minimizing the effects of these measures on the economy and the Nation's supply of energy. In particular, I believe that the delayed compliance penalty provision will provide a significant incentive for compliance, while assuring that noncompliance will not result in unwarranted closing down of energy and other facilities. I think this measure will also go a long way toward assuring fairness to all subject to the Clean Air Act, by guaranteeing to those who have complied with the law that they will not be at an unfair disadvantage in competing with those who have not met their obligations.
I believe this penalty incorporates a sound principle. In passing the 1970 act, we provided that during the formulation of the State implementation plan, the States were required to hold public hearings on the measures they proposed to use to attain the national health protective air quality standards. We expected that those industries who might be affected by the State plans would have an ample opportunity to present their views concerning the cost or feasibility of the measures proposed by the State to meet the standards. The States would then have the best information available to decide what measures for abating pollution were available, and how to meet the standards most economically. It was expected that claims of excess cost or infeasibility would be raised and decided by the States at this point. These claims would then be foreclosed in later enforcement proceedings although they might form the basis for a subsequent revision of a State plan. Dicta to the contrary in the Supreme Court's recent opinion in Union Electric against EPA are, in my opinion, incorrect.
Without this rule, the congressional plan for expeditiously attaining healthful air quality could have been easily frustrated by those who ignored the original planning process, then waited until an enforcement action to raise their objections to the requirements of the plan.
In the pending bill, we have recognized the unfortunate fact that a large number of pollution sources did not meet their timetables for compliance in the State plans. For those who have not yet complied, we have allowed the States to put off the day of reckoning until as late as 1979, or 1981 in some cases. At that time those who have still not complied will, and should, be subject to the full enforcement of the law, including the delayed compliance penalty.
At that time, the requirements of the State implementation plans will have been in effect for 7 to 9 years. The time for questioning the cost or feasibility of these requirements will be long past.
For this reason I wish to be certain that I am correct in my understanding that claims regarding neither the cost nor availability of the technology, systems, or other measures needed to comply can be raised to question or delay the imposition or full effectiveness of the delayed compliance penalty.
I note with approval that the bill does not grant jurisdiction in the courts for reviewing a delayed compliance penalty on the ground that meeting the applicable requirement of the State plan would be costly; and that the committee's report specifically notes the issue of cost may not be the basis for review of a penalty. I wish to be sure, however, that the same applies to a claim that technology is not available to meet the requirement.
Mr. MUSKIE. Your understanding is correct. Since the question of feasibility was to have been addressed in the process of formulating the State implementation plan, the Federal courts would not have jurisdiction to review delayed compliance penalty on the basis of a claim that technology was not available to meet the applicable requirement. The opportunity to present these claims was available when the plan was formulated. It remains available as a grounds for requesting a revision of a general requirement of a State implementation plan. It may not be raised in defense to a delayed compliance penalty or other enforcement action.
Mr. STAFFORD. I note that the bill provides that a penalty could not be applied where compliance with the applicable requirement was impossible owing to reasons "wholly beyond the control" of the source owner. Am I correct, then, in assuming that this exception does not cover a claim that technology is not available?
Mr. MUSKIE. Yes, you are correct. The exceptions for events wholly beyond the control of the source owner is intended to be limited very narrowly, in keeping with the bill's intent that the penalty should provide a strong incentive for compliance and a safeguard against unfairness to those who more expeditiously met the act's cleanup requirements.
It is intended to apply only in cases of natural disaster, fire, embargo, or the like, which interfere with the timely installation of the equipment, systems or techniques, required to meet the State plan's requirements, and then only for a period equal to the duration of the delay causing event. It might be available where a supplier or contractor was unable to meet a final completion date for emission control equipment, but even in this case, it would not be available if there was evidence suggesting that the delay was in any way caused or encouraged by the source owner himself. For example, if the source owner unduly delayed negotiations for needed equipment in the first instance by demanding unusual guarantees or by making other demands not typical of contract negotiations in its industry for production equipment, the exception would not be available.
Likewise, it would not be available where the source owner placed unusual restrictions on the construction work of the supplier, or delayed shakedown testing beyond the normal interval for equipment used in its production process. And in addition to these conditions it would not be available in any case unless the source owner could show, by reference to his own financial and organizational records, that procuring and implementing the needed measures had been given highest priority in the owner's planning and budgeting process.
It was our view that by the time the penalty was imposed, the opportunity for arguing that the necessary pollution control equipment or other systems or measures were not available or technologically feasible had long since lapsed.
Mr. STAFFORD. That was my understanding also, and I am reassured to hear that it was the intent of the committee when it drafted this bill.
LEGISLATIVE HISTORY ON CITIZEN SUITS UNDER SECTION 304 OF THE CLEAN AIR ACT. AMENDMENTS
Mr. MUSKIE. Mr. President, sections 6 and 34 of this bill would expand the rights of citizens to bring suits under section 304 of the Clean Air Act by authorizing such suits against any person who proposes to construct or constructs any new major emitting facility in violation of the provisions of section 110(g) which protect against degradation of clean air areas. It is also my understanding that this would in no way diminish the rights of citizens under existing law to sue in the Federal courts for claims arising under the Clean Air Act.
Specifically, general Federal jurisdiction is preserved by this amendment as well as the special grant of jurisdiction under section 304 as it exists prior to these amendments. Moreover, the class of nondiscretionary duties of the Administrator with respect to which section 304 authorizes suits is also broadened to include those duties imposed by section 110(g) including paragraph (9) thereof.
Where section 304 of these amendments authorizes suits against the construction of facilities "without a permit required under section 110(g)" that it is referring to a permit which is valid and which has been legally issued under paragraphs (4) and (5) of section (g). In other words, if a State permit has been issued in violation of the requirements of section 110 (g), a citizen will have access to Federal court under section 304 to prevent the construction of the permitted facility.
In view of these clarifications and the committee's report, it would seem that a challenge to the legality of a permit which a State has actually issued, or proposed to issue, under section 110(g), may be brought either in Federal district court under section 304(a), if the citizen has first sought administrative remedies under the State permit process, or, alternatively, a citizen may elect to seek review of the legality of the permit in a State court.
Finally, the committee report on page 82 states that—
The Committee does not intend by these amendments to section 304 to provide another means to a citizen to challenge the legality or validity of a State granted permit under Sec. 100(g).
That statement refers only to challenges involving Federal lands or Federalofficials, alluded to in the preceding sentence with respect to which suits are already authorized under existing law.
In other words, the amendment which adds paragraph (3) to section 304 would alter current rights of judicial review only to the extent of authorizing suits in Federal court to prevent the construction of any new major emitting facility without a valid permit as required under section 110(g) after exhausting any available administrative remedies at the State level.
VAPOR RECOVERY
Mr. EAGLETON. I would like to ask the distinguished floor manager whether the committee considered the problems small gasoline retailers would have in complying with EPA's proposed new vapor recovery standards? Did the committee address this problem and is there anything in the bill before us which would give some relief to those independent small businessmen?
Mr. MUSKIE. The committee spent a considerable time discussing the proposed regulations which would require retail gasoline outlets to equip their pumps with vapor recovery systems.
The committee agreed that it was an important initiative to take, but there were questions about the effectiveness of the equipment which was being mandated by the regulations and also concern about the cost of the equipment to small operators. After extensive communication with the agency the committee concluded that EPA was sensitive to these problems and would take due account of them in its final regulations. So the committee decided not to interfere in that process, but rather to trust that the problems would be worked out within the agency and I am confident that will be done.
Mr. EAGLETON. As the Senator knows, I had considered offering an amendment to allow small retail operations a period of 4 years in which to fully comply with the proposed standards. But I appreciate the assurances given by the distinguished chairman that the problems have been brought to the attention of the EPA and the committee has expressed its concern that there be a satisfactory resolution of them. I will not press my amendment for that reason but will accept the committee judgment that this thing will be worked out.
Mr. MUSKIE. I am confident it will be.