September 28, 1979
Page 26745
PRIORITY ENERGY PROJECT ACT — S. 1308
AMENDMENTS NOS. 447 THROUGH 485
(Ordered to be printed and to lie on the table.)
Mr. MUSKIE (for himself, Mr. STAFFORD, and Mr. RIBICOFF) submitted 39 amendments intended to be proposed by them, jointly, to S. 1308, a bill to set forth a national program for the full development of energy supply, and for other purposes.
ENERGY MOBILIZATION BOARD
Mr. MUSKIE. Mr. President, Senators RIBICOFF, STAFFORD, and I are today submitting a number of amendments to S. 1308, the Priority Energy Project Act, for the purpose of forcing the Senate to give careful consideration to the details of this legislation. I do not feel that adequate attention has been focused on S. 1308, and it is my feeling that a line by line examination of legislation of this magnitude may be warranted.
In order to aid my colleagues in their understanding of the implications of various provisions of S. 1308 as reported by the Energy and Natural Resources Committee, I ask unanimous consent that a comparison of S. 1308 and S. 1806, a substitute bill introduced by Senators RIBICOFF, GLENN, ROTH, PERCY, STAFFORD, HART, JAVITS, DURENBERGER and myself be printed in the RECORD at this point.
There being no objection, the comparison was ordered to be printed in the RECORD, as follows:
COMPARISON OF S. 1308, THE ENERGY COMMITTEE, BILL AND S. 1806, THE RIBICOFF-MUSKIE BILL
COMPOSITION OF THE ENERGY MOBILIZATION BOARD
S. 1308 provides for a three member board appointed by the President and confirmed by the Senate. Board members would serve only part time, and would not be subject to conflict of interest laws.
S. 1806 also creates a three member Energy Mobilization Board appointed by the President and confirmed by the Senate. The only difference is that the members would serve full time and would be subject to conflict of interest laws.
DESIGNATION OF PRIORITY ENERGY PROJECTS
S. 1308 requires that a project not be designated unless the Board finds that it is likely to reduce directly or indirectly the Nation's dependence on foreign oil. This is an extremely loose criterion and the designation decision is not judicially reviewable. Therefore, even a tightening of the criterion would be meaningless because the Board is not accountable for justifying its decisions once a designation is made.
S. 1806 provides that the Board must make a finding that a project will contribute to a 50% reduction in the use of imported oil by 1990, the President's goal, and that it needs the fast-track system to make that contribution to the goal. This is much preferable a set of criteria in that it provides a specific measuring rod against which the project can be evaluated, and it provides more guidance to the Board in the designation decision. The designation is also judicially reviewable, which will deter the Board from abusing its discretion in this area.
In addition, only 24 priority energy projects may be designated for fast-track treatment at any one time under S. 1806. The numerical limit, not contained in the Energy Committee bill, has the obvious advantage of limiting the number of projects which can receive any sort of expedited treatment and in thus preventing the clogging of the fast-track system with unwarranted designations which would guarantee that the process would not work.
Under S. 1806, DOE will initially screen the application for priority status, and then forward its recommended candidates to the Board. This will provide a technological evaluation of each project using DOE's expertise, and make unnecessary a buildup of a small bureaucracy in the Board to perform that function.
DEADLINES FOR AGENCY ACTION
S. 1308 requires the Board to promulgate a project decision schedule with binding deadlines for every agency action relating to a priority energy project. That deadline may be no longer than two years from the date of designation, unless the Board determines that a longer period is necessary.
This kind of arbitrary deadline has no reference to the particular requirements of any statute, which may be longer or shorter than a uniform deadline imposed for every action. The two years includes the time during which the applicant submits his permit application and the agency determines exactly what must be contained in the application. This process in itself has proved time consuming; the actual analysis by an agency once an application is complete can in most cases be made expeditiously. A two-year deadline for the entire permit process will be too short in some cases and, therefore, trigger the provision in S. 1308 authorizing the Board to make the permit decision in lieu of the agency.
S. 1806 also requires the Board to set deadlines binding on agencies which must perform actions relating to the approval of a priority energy project. That deadline can be no longer than one year after the completion of a permit application by the applicant. This approach provides the flexibility absent in a uniform deadline. It also provides an incentive to both the applicant and the agency to determine the contents of an application and to complete the application as soon as possible.
WAIVER OF PROCEDURAL REQUIREMENTS
S. 1308 authorizes the Board to adopt special procedures for Federal agencies governed by the deadlines set by the Board. The bill provides that such procedures must be consistent with all statutes, rules and regulations promulgated by the agencies with enumerated exceptions. The exceptions permit the consolidation of the proceedings with other agencies, the establishment of permit requirements to eliminate unnecessary duplication. the substitution of legislative-type hearings in lieu of trial-type hearings, and shortening the specific time periods required by statute, regulation or rule for agency actions. This approach is objectionable because the Board may impose such special procedures on an agency without any regard for the particular statutory requirement that the agency is implementing and the particular procedural needs associated with it.
The bill also authorizes Federal, State and local agencies to establish special procedures to meet deadline imposed by the Board, notwithstanding any other provision of law. The special procedures enumerated are identical to those which the Board may impose on an agency.
However, this approach does make sense. Each Federal agency is familiar with the needs of particular permit requirements and can choose whether to use special procedures with reference to that permit proceeding.
S. 1806 contains no authorization to the Board or to agencies to modify procedural requirements to applicable statutes. However to the extent that certain procedures and time limits on them (for example, a 30-day comment period) are contained in regulations promulgated by an agency, the agency could adjust those procedures or procedural time limits in dealing with a permit application for a priority energy project. This is the most preferable approach.
ENFORCEMENT OF DEADLINES
S. 1308 authorizes the Board to perform any agency decision in lieu of an agency which has missed its deadline. This approach is objectionable for a number of reasons. First, the Board is making a substantive decision for an agency has only one mission in mind, and that is to expedite construction of the priority energy project; second, it requires a duplication of expertise in the Board as well as a duplication of analysis already partially complete by an agency; and third, this approach is more time consuming in that the Board must begin its analysis after the agency has missed its deadline.
S. 1308 also authorizes the Board to seek a court order compelling agency action once the deadline has been missed, as an alternative enforcement mechanism. This is a far preferable approach in that the substantive duties of the agency in question are not usurped and the decision is made in a more timely fashion. However, the Board has complete discretion to choose the mechanism for enforcement that it uses.
S. 1806 provides only for enforcement by court order. This is preferable for the reason stated above.
JUDICIAL REVIEW
S. 1308 provides for expedited judicial review of any final action by a Federal, State or local agency relating to a priority energy project in a special court, the Temporary Emergency Court of Appeals. Jurisdiction is removed from the District courts and Courts of Appeal as provided in the various substantive statutes.
S. 1806 also provides for expedited judicial review, but in the court of appeals for the circuit in which the priority project is located. This provision is far preferable; the Temporary Emergency Court of Appeals isan unknown quantity at this point. It is composed of Appellate Justices appointed to the court by the Chief Justice, who would also specify the judges who will sit on each panel hearing each specific case. Concern has been expressed that the choice of judges to hear these cases may be subject to inappropriate considerations.
GRANDFATHER PROVISION
S. 1308 contains a Grandfather provision authorizing the Board to waive the application of any Federal, State or local statute, regulation or requirement enacted or promulgated after the commencement of construction of a priority energy project. Commencement of construction is broadly defined to include any activity from site clearance through to operation of the facility.
This approach fails to recognize that new requirements are often enacted or promulgated as specific remedial responses to problems which were unknown or unknowable at the time a project was initially approved. Such a prohibition would effectively prevent corrective action needed to protect public health or the environment. In addition, the Energy Committee has not provided any information indicating that this sort of substantive waiver is, in fact, necessary as a result of past problems.
S. 1806 contains no Grandfather provision.
THE NATIONAL ENVIRONMENTAL POLICY ACT
S. 1308 authorizes the Energy Mobilization Board to designate a lead agency before preparation of an Environmental Impact Statement. The Board is also authorized to determine whether a Federal action requires an impact statement. This changes the existing procedure substantially, although it has been satisfactory.
In addition, the Board is authorized to consolidate Federal, State and local impact statement requirements into one Federal consolidated statement. The one single statement must, however, cover the matters required in any State or local statement.
S. 1806 follows existing regulation in permitting the relevant agencies to decide among themselves the lead agency for preparation of the Environmental Impact Statement. The lead agency then determines whether any Federal action relating to the project affects the quality of the environment and therefore subject to the EIS requirement. S.1806 also provides for consolidation of Federal, State and local EIS requirements into a single Federal statement which reflects also the requirements of State and local law.
This provision of S. 1806 is preferable to the language in S. 1308.
AMENDMENT NO. 486
(Ordered to be printed and to lie on the table.)
Mr. MUSKIE (for himself, Mr. RIBICOFF, and Mr. STAFFORD) submitted an amendment intended to be proposed by them, jointly, to S. 1308, supra.
ENERGY MOBILIZATION BOARD — PRESERVATION OF STATE AND LOCAL AUTHORITY
Mr. MUSKIE. Mr. President, Senators RIBICOFF, STAFFORD, and I are today submitting an amendment to S. 1308, the Priority Energy Project Act of 1979, reported this week from the Energy and Natural Resources Committee.
I have concern about many fundamental provisions in S. 1308. One of my strongest objections to the bill relates to its effect on substantive and procedural requirements of State and local law.
The amendment I present addresses this shortcoming by amending two provisions of S. 1308.
First, it deletes the "grandfather provision." Second, it removes the authority of the Board to make substantive decisions in lieu of State and local agencies which have failed to meet their decision deadlines. I would like to outline my specific concerns in order to provide my colleagues with information which has been discussed in the debate thus far.
GRANDFATHER PROVISION
While most of us in Congress support a speedup of the decision process for valid projects, we also can recognize a trojan horse when it appears. Some people clearly hope to make this Board become such a device.
One key issue stands out among the many contained in this legislation. It deals with a perpetual protection for projects anointed by the Board for fast track consideration. A waiver could be granted to such projects, protecting them forever from compliance with future Federal, State, or local requirements.
These are not merely environmental requirements — they are any requirements.
But is is clear that environmental law is the key target of this provision.
Such a grandfather protection creates a pernicious effect on any logical policy for treating toxic pollutants and other situations where knowledge is limited but leaping ahead daily.
Let me give an example. Many of the proposed synthetic fuel plants will be candidates for designation as priority projects. If they receive such designation, they will be placed on the fast track for decision making.
Such projects have the potential of creating serious new toxic pollutants.
We do not know how harmful the pollutants are;
We do not know how sweeping the contamination would be;
But we do know that splitting the molecules of coal to make oil or gas creates some different pollutants from the mere combustion of coal. And these pollutants are frequently cancer causing or suspected of being so.
How will we ever know? Too often we waited to observe the effects of long term exposure and then recognize that mistakes were made. We should not duplicate that same process knowingly.
Yet, we are close to adopting an energy policy that would guarantee such an approach. Facilities would not have to meet any additional requirements once construction had commenced.
No additional cleanup, even if we find the toxic levels are threatening local populations;
No additional cleanup, even if groundwater supplies of the local population become contaminated by discharges; and
No additional cleanup, even if we discover that workers in the plants are gaining cancer-like skin lesions.
Such impacts on workers are not mere conjecture. In 1960, Union Carbide closed a synthetic fuels plant precisely because such lesions were appearing on plant workers.
Particularly in a new area, we should not bar our capability to improve a facility as we place it in operation.
Mr. President, section 36 of S. 1308 authorizes the Energy Mobilization Board to waive laws enacted and regulations promulgated after the commencement of construction of a priority energy project unless the Congress explicitly prohibits the waiver. The laws which would be suspendable under this provision are those enacted not only by the Congress but also by State and local governments in the future. Also, regulations promulgated subsequent to the designation of a priority energy project would be suspendable by the Energy Mobilization Board.
Although the fast track legislation will be used for other kinds of projects, the synfuels program was the stimulus.
But the grandfather provision could actually hurt the development of synfuels. It would bar the orderly development of environmental controls, and create continued resistance on environmental grounds. These fuels are made from coal and oil substances whose pollution characteristics are known, but transferring these to synthetic fuels does not create the same kind of pollutants.
Synthetic fuels from coal, a committee print of the Senate Energy Committee, June 1978, states the following:
The liquefaction process breaks chemical bonds between aromatic (cyclic) structures in the coal molecule. Typical products of this chemical conversion include aromatic hydrocarbons, some of which are known or suspected carcinogenic agents. Accidental dermal (skin) or respiratory exposure to plant employees could lead to a variety of health effects, some severe. A coal liquefaction pilot plant operated by Union Carbide had to be shut down in 1960 because plant workers were developing cancerous skin lesions.
We frequently find problems of toxic pollutants after they have been emitted, not before.
I ask unanimous consent that a list of potentially hazardous substances likely to be admitted from synfuels plants be printed in the RECORD.
There being no objection, the list was ordered to be printed in the RECORD, as follows:
TABLE 1.— Some potentially hazardous substances that could be associated with coal conversion technologies.
More poorly understood
Higher significance
Benzene: Suspected to cause leukemia.
Beryllium: Suspected to cause bone and lung cancer.
Cadmium: Possible relation to prostate cancer.
Fluorides: May increase sensitivity to chemicals affecting central nervous system.
Lead: Suspected occupational carcinogen.
Nickel: Occupational cancer incidence.
Nickel carbonyl: Causes lung cancer, possibly asthma.
Nitric acid: Can irritate eyes, lungs, mucous membranes, skin and corrode teeth.
Nitric oxide: Can cause pneumonia, circulatory system damage; suspected respiratory irritation and tooth corrosion.
Nitrogen dioxide: Suspected to reduce resistance to bacteria; acute exposure causes increased respiratory inhibition.
Phenols and cresols: Occupational carcinogen (skin) ; may damage central nervous system and liver.
Selenium: Occupational cause of digestive and nervous disorders.
Sulfur dioxide: Correlates with chronic respiratory diseases; synergistic effects with particulates.
Zinc chloride: Possible carcinogen.
Lower significance
Carbon monoxide: Suspected to alter enzyme activity: cause behavioral changes: and precipitate heart attacks.
Fluoride: Suspected association with blood disorders.
Manganese: Causes brain damage and pneumonia in high doses.
Xylene: Inhibition of electrical activity in cerebral cortex at levels below odor threshold.
Vanadium: Acute respiratory irritation; chronic ingestion produces systemic symptoms.
Zinc oxide: Occupational exposure can cause intestinal, respiratory, skin and nervous disorders.
Better understood
Beryllium: Causes acute and chronic respiratory disorder from short-term exposure.
Chromium: Suspected cause of lung cancer.
Fluorides: High levels lead to chronic poisoning or fatality; can cause respiratory impairment.
Lead: Damages central nervous system.
Mercury: Damages central nervous system.
Polycyclic aromatic hydrocarbons: Carcinogenic.
Uranium: Insoluble compounds damage lungs: salts damage kidneys and arteries.
Arsenic: Lethal at high doses.
Barium: Eye, nose, throat, skin irritant: salts and sulfide poisonous.
Beryllium: Causes chronic berylliosis.
Cadmium: Systemic and fatal effects from inhalation of high concentrations.
Carbon monoxide: Causes dizziness, fatigue, and coronary dysfunction.
Chromium: Occupational exposure causes lesions of skin and mucous membranes.
Cyanides: High concentrations lethal.
Phenols and cresols: Corrodes skin and mucous membranes.
Selenium: Causes dermatitis and respiratory irritation.
Toluene: Chronic exposure can cause brain damage.
The basis for the ranking of a substance is a combination of the substance's inherent toxicity and the degree of human exposure anticipated. The latter is a relative measure, reflecting the increase in concentrations over urban or rural background levels, the concentration expected as compared with the level thought to be harmful, and the number of persons who will be affected.
Each effect is placed in the grid according to its ranking of significance and how well it is understood. The list of problems is not comprehensive and does not incorporate all advances to date in the assessment of current knowledge. However, the most important effects are believed to be covered. Some substances are listed more than once depending on the effect and the level of understanding.
Mr. MUSKIE. Mr. President, the 1977 amendments to the Clean Air Act clearly contemplated granting additional time for innovative technologies to meet clean air standards. The Environmental Protection Agency after extensive consultations with the Department of Energy finally agreed to a policy that would allow a few demonstration plants to qualify for this slower cleanup schedule. That approach would have given regulatory agencies information about workplace safety and environmental cleanup requirements needed to develop responsible regulations to be applied to broad scale commercialization of synthetic fuels. Section 36 of the present bill does not embody this careful approach. It would allow broad scale commercialization of synthetic fuel plants without imposing new source performance standards and without protecting public health and safety. Enactment of section 36 makes a mockery of the carefully crafted Department of Energy and Environmental Protection Agency agreement in this regard.
The Federal, State, and local government have not abused their authority In this area. The Congress should not preemptively take such authority away now. It is not needed and it creates mischief.
ENFORCEMENT MECHANISM
The second part of this amendment would delete another provision in S. 1308 which preempts the authority of State and local governments to regulate priority energy projects. This amendment removes the enforcement mechanism in S. 1308 under which the Board may make a substantive decision in lieu of the appropriate Federal, State or local agency. The only enforcement mechanism available to enforce a deadline for decision making would be authorization to the Board to seek a court order compelling compliance.
Mr. President, there is absolutely no justification for running roughshod over the rights of States and localities to make their own decisions on projects which will affect the lives of their citizens for decades.
How could the Energy Mobilization Board possibly understand or even know the contents of the laws it would be implementing?
How could the Energy Mobilization Board possibly understand better, or at all, the particular concerns of the State or local agencies?
How could the Energy Mobilization Board possibly make a decision faster than an agency which has been working on the permit for months?
How could the required buildup of another bureaucracy duplicating those already in existence possibly speed up the review process for priority energy projects?
And most important, how could the Energy Mobilization Board, with a mission to expedite the construction of energy facilities, possibly have the good of the States and localities in mind when making these decisions?
Mr. President, I ask unanimous consent that the text of the amendment be printed in the RECORD.
There being no objection, the amendment was ordered to be printed in the RECORD, as follows:
AMENDMENT No. 486
On page 140, line 3, strike all through page141, line 8.
Beginning on page 51, line 23, strike "(a)" and all after through "(b)" on page 52, line 17.0