Introduction

As everyone knows by now, the Clean Air Act, once a relatively innocuous expression of Congressional good wishes,¹ was amended in 1970 to become what is still the most sweeping and consequential environmental legislation on the books.² The Energy Supply and Environmental Coordination Act of 1974³ (ESECA) contains the first amendments to the Clean Air Act to clear Congress since that date. These amendments arose out of the hurriedCongressional and national reaction to the "energy crisis" of last winter. Accordingly, their scope is limited and they do not attempt to resolve any sensitive pollution control issues with finality. Thus, the date for achieving auto emission standards is extended, but the final standards themselves are retained, and the question whether catalytic converters should be used to meet them is not addressed. Similarly, the most controversial "transportation control plan" measures are blocked or deferred, but the truncated plans themselves are allowed to move forward, and the strategy of reducing air pollution by reducing traffic is not explicitly questioned. In each case, the Congress realized and stated throughout the legislative proceedings that these issues deserved fuller consideration and would get it in later sessions.

The third and last major area under the Clean Air Act affected by ESECA concerns emissions from power plants and similar large installations. Since air pollution control regulations began getting stricter in the late 1960's many major polluters have chosen to comply by burning oil or natural gas rather than coal. This, in turn, has increased national dependence on foreign energy supplies, since almost all coal is produced domestically, while a major share of low-sulfur oil is imported.

ESECA will help to reverse this trend by compelling a number of these establishments to stop burning oil or natural gas and burn coal instead. In some cases, a relaxation of air pollution control requirements may be granted in return.

Neither the immediate impact of these legislative provisions nor their significance as precedent should be overestimated.

Congress deliberately drafted them as a first step only, and both the provisions of the bill itself and the current state of the coal market will set definite limits to the number of plants that can be converted. The impact on air quality and total energy use will be reduced correspondingly.

As precedent, the legislation contains an explicit (though lukewarm) endorsement of "scrubbers" despite the intense campaign that has been waged against them by the power industry, and a strong hint that EPA should establish new air quality standards to control new pollutants now unregulated. Under the normal rules of statutory interpretation these provisions should have weight as the latest expression of Congressional intent on these matters. However, both the pace of events in this field and the crisis atmosphere in which ESECA was drafted make it unwise to take them as forecasting the final disposition of these issues in some future Congress.

Accordingly, my purpose here is not to explore the limited and speculative general meaning of this legislation, but rather to give a detailed account of how the coal conversion sections actually work for the benefit of those who will have to work with them.

These provisions, unfortunately, are of such complexity that the typical reader goes through at least three stages in the attempt to understand them.

First, the brain swims with the effort of simply reading ten merciless pages of legalese, replete with paragraph and subparagraph, cross-reference and enumeration, defined in terms and undefined procedures.

Second, the reader realizes, after a day or more of breaking his head, that the provisions do hang together, and that they define a reasonably coherent scheme for approaching the subject of coal conversions.

At this stage the reader may conclude that his troubles are over, and that any statute which actually makes sense after having gone into such detail has probably settled all the questions in advance, if only he would read it closely enough. This is a mistake. The third stage comes when the reader realizes that one function of each specific provision of the statute is to serve as a small thicket in which minor problems can shelter.

Whether there is a fourth stage, at which these problems disappear, I wouldn't pretend to know. My purpose is simply to provide as much assistance as I can to those who wish to move from stage 1 to stage 2, and to avoid getting even as far as stage 3 to the extent that that is [4 ELR 50102] possible.⁴

DISCUSSION

I. General

The Clean Air Act provides the background against which ESECA operates. Under the Clean Air Act, each state must have in effect a plan approved by EPA for meeting "primary air quality standards" throughout its territory by 1975, or 1977 at the latest. Primary air quality standards are established at a level low enough to protect all members of the general public from adverse health effects caused by air pollution. Though primary standards have been established for six different pollutants, the only ones of major concern to coal-burning installations are sulfur oxides and particulates.

The plans for achieving these standards (called "state implementation plans" or "SIPS") must contain "emission limitations" and any other measures necessary to meet the standards on schedule. Emission limitations are typically expressed as a restriction on the amount of pollution that may be emitted from the smokestack per unit of time, per B.t.u., or per unit of fuel burned. For sulfur oxides, they may also be expressed as a restriction on the sulfur content of fuel. Since the deadline for achieving the primary standards is 1975 (or 1977) the emission limitations to achieve that goal, though they may be phased in, must take full effect by that deadline.

Implementation plans need not be (though they often are) drawn up on a state-wide basis. Instead, under the Clean Air Act the country has been divided into 247 "air quality control regions" (AQCRs), and these are the basic units for air pollution control planning.

ESECA's coal conversion provisions will permit certain polluters to burn coal even where current SIP requirements would forbid it, and will grant them some relaxation of air pollution requirements for that purpose. These relaxations are called "compliance date extensions"

In this context, the following questions arise:

II. Which installations are eligible for compliance date extensions?

1. Sources which are not eligible

a. No facility which relied on coal as its primary energy source on September 15, 1973 is eligible

This is specified by 119 (c) (1),⁵ which restricts compliance date extensions to those sources which on or after September 15, 1973 convert to the use of coal as their primary energy source.⁶ Congress thought that sources which were already burning coal before the "energy crisis" of last winter would (or should) already have made their plans for complying with Clean Air Act standards and should therefore be held to the existing requirements.

b. No facility located in an AQCR where the primary standard for any pollutant is being exceeded may obtain relaxation of the SIP requirements for that pollutant.

Section 119 (c) (2) (D) provides that no compliance date extension may permit a source located in a region where primary standards for a pollutant are being exceeded to violate any control requirement for that pollutant. This is known as the "regional limitation".⁷ The provision is confusingly drafted — it says that an extension for controlling that pollutant may be issued, but it can't have any effect, when it would have been more direct to say simply that no extension could be granted.⁸

No causative relation need be shown between the emission limitations in question and levels of air pollution in excess of the standards. The intent was to establish a simple per se rule and, accordingly, even if a source could demonstrate that allowing it a more lenient standard [4 ELR 50103] would have no effect on pollution levels, it would not receive any relief from the regional limitation.⁹

This section represents a basic choice by Congress between the competing claims of increased coal usage and cleaner air. Both Senator Muskie and Senator Buckley, the original sponsor of this provision, were very clear on that point.¹⁰

2. Eligible Sources

The categories of ineligible sources govern the categories of eligible ones. If a source falls into one of the categories of ineligible sources, that alone makes it ineligible. Only if it does not can we ask whether it meets the conditions for eligibility.

a. Facilities which began to convert to coal between September 15, 1973 and March 15, 1974 and which subsequently complete conversion are eligible for compliance date extensions.

Section 119 (c) (1) (B) makes sources which began conversion to coal between September 15, 1973 and March 15, 1974 eligible for compliance date extensions if they subsequently carry through with the conversion.

The Administrator of EPA is responsible for determining when a source is eligible under this provision, and since the statutory language is somewhat uncertain, much will depend on how he administers it. On the one hand, the definition of "began conversion" is quite broad — the list of actions which may be taken as such a beginning includes applying for a variance from air pollution control requirements. On the other, the Administrator must also find that the decision to convert to coal was motivated by "the unavailability of an adequate supply of fuels required for compliance with the applicable implementation plan". Since a plant may well have decided to convert to coal even when low sulfur oil was still available in some sense, even though it might have cost more or come from a foreign supplier, this qualification could greatly restrict the scope of the provision.

3. Facilities which are ordered to convert to coal by FEA are eligible for compliance date extensions if they convert to coal after September 15, 1973.

Under § 2(a), the FEA Administrator may forbid any major fuel burning installation to use either oil or natural gas as its primary energy source if he determines that as of June 22, 1974 it had the "capability and necessary plant equipment to burn coal" and that it would be practical and consistent with the purposes of ESECA¹¹ to order it to convert.¹² The legislative history emphasizes that FEA should read the quoted phrase fairly broadly.¹³

Taken literally, this provision authorizes FEA to require plants that were already burning coal on September 15, 1973 to continue burning it, and to order plants to convert even when they would be subject to the regional limitation. There can be no doubt that Congress expected each of these events might happen.¹⁴ In such cases, a source would be ordered to burn coal even though no corresponding relaxation of air pollution control requirements would be available. Section 2(b) (3) (B) read together with 119(d) (1) (B) (ii), provides that these orders may not take effect until the date on which the EPA Administrator predicts that the source will be able to burn coal and to comply with the unrelaxed air pollution control requirements.An FEA order may be modified or rescinded if it appears that the costs of meeting EPA requirements while burning coal are too high to be "practicable."

In all cases except these two, however, a source which was ordered to convert to coal would be eligible to receive a compliance date extension.

Some intellectual problems may arise in reconciling the policies behind these two categories of sources eligible for compliance date extensions. ESECA confers on the FEA Administrator, in addition to his power to issue coal conversion orders, the authority to allocate coal¹⁵ supplies "to any … person … to the extent necessary to carry out the purposes of this Act,"¹⁶ while less sweeping power to allocate petroleum products is conferred on him by Section 4 of the Emergency Petroleum Allocation Act of 1973.¹⁷

The effect, and, indeed, the purpose of these provisions would seem to be to grant the FEA Administrator considerable authority over the pattern of fuel usage by major facilities in this country.¹⁸ It is conceivable, to take an unlikely example, that should the statutory purpose require it, he could allocate coal away from existing coal [4 ELR 50104] burners and thus compel them to switch to oil in order to increase his ability to issue conversion orders to other sources which for some reason were better situated to burn coal.

Yet at the same time, under § 119(c) (1) (A) a plant which has simply begun to convert to coal during a certain six month period may receive a compliance date extension which makes sense only if it is going to burn coal permanently. Where does the national coal conversion policy fit in here?¹⁹

The simple answer is that Congress, despite the sweeping powers it conferred on the FEA Administrator, did not believe that he would ever use them to compel any plant currently burning coal to stop burning it. Starting from this presumption, Congress decided that those plants which had begun to convert to coal during the "energy crisis" deserved slightly more favorable treatment than those which waited for FEA to act.²⁰ These sources, after all, will have gotten "out front" in implementing the national policy of increased coal usage. In addition, since one of the conditions of eligibility under this provision is that conversion have been motivated by the unavailability of other fuels, these sources will almost certainly be those that were most severely affected by the "energy crisis" of last winter and the Arab oil embargo.²¹

III. What is the effect of a compliance date extension?

Any compliance date extension will be specific to an individual source. It may affect requirements for one pollutant only, or for more than one. It may extend for any period up to December 31, 1978, but no longer.²² During the time it is in effect, all requirements of the relevant implementation plan will, as applied to that source, be of no effect, although the source must be taking steps to comply with them eventually. In addition, all state and local air pollution requirements which might have the effect of forbidding the burning of coal by that source will, even if they are not included in the applicable implementation plan, be suspended until January 1, 1979.²³

IV. What conditions are imposed on a compliance date extension?

The relief described under III will not always be cheap or easy to get. The statute requires certain conditions to be met by every source which receives it. Specifically:

1.Each source receiving a compliance date extension must go on an EPA-approved compliance schedule to achieve compliance with the suspended SIP requirements at the end of the extension period.

A compliance date extension, while it is in effect, suspends the enforcement of the implementation plan requirements that would otherwise have been applicable to that source. The law is unequivocal, however, that in return for this relief, the source must go on a schedule to achieve compliance with the suspended limitation as soon as practicable.²⁴ Though the statute places numerous requirements on compliance schedules designed to ensure that they are detailed enough and will be enforceable,²⁵ it only places one limitation on the means to be used for final compliance. Whatever it is, it must reduce the pollution coming out of the smokestack on a continuous basis, without regard to meteorological conditions. This effectively rules out so-called "intermittent control systems" (ICS) and "suplementary control systems" (SCS) as means of final compliance. With this one exception, the source may take its choice of low-sulfur coal, gasified or liquefied coal, a scrubber, or any other means of final compliance with the implementation plan requirement.²⁶

The legislative history contains extensive discussion of this point. Though some leading sponsors of the legislation expressed doubt as to whether scrubbers would be the final answer to the power plant emission problem, they all recognized that what they had drafted would explicitly require their use in many cases.²⁷

Under § 119(e) the EPA Administrator may allocate "continuous emission reduction systems" (meaning scrubbers) to those plants that need them most if such a step is necessary to implementing the compliance date extension provisions.

The statutory language by itself would allow compliance date extensions for control both of sulfur oxides and of particulates, the two major pollutants caused by burning coal. However, almost all the discussion in the legislative history focuses on sulfur emissions, and the Conference Report states explicitly²⁸ that only very limited extensions for particulate control should be granted.

[4 ELR 50105]

2. Even during the extension period, no primary standard may be exceeded.

We have already seen that no relief may be granted from SIP provisions that apply to an air pollutant in a region where the corresponding primary standard is being exceeded. Section 119(d) (2) (A) provides that even where a source is granted a compliance date extension — which can only be in a region where the primary standard for that pollutant is not exceeded — one condition of the extension must be that the source adopt any controls necessary to continue to assure that the primary standard will be met. This is known as the "primary standard condition."²⁹

But if this condition is part of any compliance date extension, the question arises why the provision for eventual conformity with SIP requirements is needed in addition. Isn't the purpose of the Clean Air Act to achieve the primary standards?If this is being done, why compel a source to spend the money and effort needed to achieve more stringent control?

There are two answers to this question.

The first is that the Clean Air Act does not aim exclusively at achieving primary standards. Stricter secondary standards, designed to protect against damage to property and vegetation, must also be achieved, and states must have implementation plans to achieve them. Furthermore, the Clean Air Act explicitly recognizes the right of states to adopt emission limitations more stringent than necessary to achieve either the primary or the secondary standards. Since states have the initial responsibility for drawing up implementation plans, if such "overstringent" emission limitations are contained in a plan submitted to EPA, EPA must accept them.³⁰

The second is that ICS and SCS, though they are not acceptable as means of final compliance with SIP requirements, are acceptable to some extent as ways of meeting a primary standard condition.³¹ The result in some cases may be a two-stage process of pollution control, first by ICS or SCS during the extension period, and when it is over by the direct emission reduction measures Congress thought were better.

3. A coal conversion order and the accompanying compliance date extension can both be revoked by EPA if use of coal would result in an unreasonable increase in emissions of sulfates or other pollutants for which national ambient air quality standards have not been promulgated sufficient to pose a "significance risk" to public health.

During the past year a growing number of people have concluded that the main health threat from burning high-sulfur fuels without emission controls is not sulfur oxides, as was believed at the time the Clean Air Amendments of 1970 were enacted, but rather sulfur salts and other small particles of sulfur compounds known collectively as "sulfates." It will be a considerable time at best before an ambient air quality standard for these pollutants can be established. In order to permit some control over them in the interim, Congress provided that any coal conversion order should lose its effect if the EPA Administrator certified that

the burning of coal by such a source will result in an increase in emissions of any air pollutant for which national ambient air quality standards have not been promulgated … and that such increase may cause (or materially contribute to) a significant risk to public health.³²

Despite the general language used, the legislative history leaves no doubt that sulfates were the main problem Congress had in mind.³³ The statute does not state explicitly the consequences of aconversion order's losing effect. This is an obvious oversight, and seems inconsistent with the implicit Congressional judgment that sources which will contribute to a significant health hazard by burning coal should not burn it.³⁴ If a source's coal conversion order lapses, and nothing more, in most cases the source would probably continue to burn coal, since that is what it had been planning to do anyway.

One was to break this dilemma is to conclude that whenever a coal conversion order lapses, any underlying compliance date extension lapses too. Such an extension, after all, may only be issued to a source "which is prohibited from using petroleum products or natural gas by reason of a [coal conversion] order which is in effect,"³⁵ and it is only a small extension of the statutory language to condition the continued vitality of the extension on the [4 ELR 50106] continued vitality of the conversion order without which it could not have been issued in the first place.

Indeed, the same remedy of revocation of a conversion order is also provided for sources which simply cannot comply with a primary standard condition.³⁶ Here it seems all but inevitable that the compliance date extension lapse together with the conversion order, since the inability to comply with a primary standard condition means that the conditions for a compliance date extension were never met in the first place. But this provision and the "sulfates" provision are parallel parts of the same paragraph, which argues that the consequences of a conversion order's lapsing should be the same for both.³⁷ As this discussion will have demonstrated, this section is one of the most sweeping and least defined provisions of the statute.³⁸ Its impact will depend very largely on how EPA decides to implement it.

V. What are the procedures for issuing and enforcing coal conversion orders and compliance date extensions?

My own experience suggests that a large part of the average reader's difficulty in understanding the coal conversion provisions of ESECA stems from the lack of any firm statement as to who shall do what when. To clarify that point, it will be helpful to take two examples — the simplest first.

1. Issuance of a compliance date extension to a source not subject to a conversion order.

Here EPA acts alone without FEA involvement and the procedure is relatively straightforward.This can happen, for example, where a source began conversion between September 1973 and March 1974.

The statute suggests, without stating explicitly, that in issuing compliance date extensions the Administrator may act either upon application by the source or on his own motion.³⁹ As a practical matter the application would probably come from the source.

The Administrator would then hold a public hearing to consider all aspects of the suspension request, including the duration of the extension, the compliance schedule and the primary standard condition.⁴⁰ The legislative history is absolutely clear that this hearing should be of the legislative type, and that no cross-examination is required.⁴¹

Section 6 of ESECA amends § 307(b) of the Clean Air Act to provide for judicial review in the appropriate circuit court of appeals of any action of the EPA Administrator in approving a compliance date extension.

Conditions of the extension that were not challenged or were upheld on review could be enforced under § 113 of the Clean Air Act just like existing requirements under that statute.⁴² States and localities could enforce both primary standard conditions and regional limitations.⁴³

2. Issuance to a source of both a compliance date extension and a conversion order.

Under § 2, FEA's authority to issue coal conversion orders expires on June 30, 1975. These orders can, however, take effect at any time before January 1, 1979.⁴⁴ There may, accordingly, be a substantial difference between the date such an order is issued and the time it takes effect.

No order may take effect until the date on which the EPA Administrator has certified to FEA that the source can burn coal and (i) comply with the primary standard conditions, if a compliance date extension is available, or (ii) comply with all applicable air pollution requirements, if a compliance date extension is ruled out.⁴⁵

Though the statute itself is not completely clear, the legislative history appears to contemplate that FEA will consider the costs of meeting air pollution control requirements before issuing an order. That history directs the EPA Administrator not to consider the economic [4 ELR 50107] feasibility of compliance with the primary standard conditions or the applicable air pollution requirements in the two cases cited in the preceding paragraph. Rather that is a matter for FEA to determine in deciding to issue the order at all.⁴⁶ Indeed, § 119(d) (3) (B) states that for ESECA's purposes the only test of whether a source can comply with air pollution requirements is technological feasibility.⁴⁷ But in order to make a determination of economic feasibility with confidence, FEA will have to have it before a formal decision on a compliance date extension made by EPA, since, as noted above, compliance date extensions can only be issued to a source after it has received a coal conversion order.⁴⁸ Once the order is issued, the source affected will certainly apply for a compliance date extension to avoid automatically being placed in violation of the Clean Air Act. EPA must then hold a public hearing to reconsider formally the points that were considered when advice was first given to FEA. What if as a result of this hearing, EPA becomes convinced either that the standards for a compliance date extension are not met, or that compliance will be far more costly than first believed? Will FEA, which relied on the first round of EPA advice, be forced to withdraw or consider withdrawing its order because of the second?

This is probably not a serious practical problem. A variety of formal administrative mechanisms could be devised to avoid it, and informal consultation between the two agencies could have the same effect. The fact that it is easy to imagine it arising, however, points out the confusion that the present undefined state of the procedures to be followed might lead to.

VI. Short Term Suspensions

So far I have talked about ESECA as though the only mechanism it provided for relaxing air quality control requirements was the compliance date extension. Though this greatly simplifies the task of explaining the statute, it isn't quite accurate.

Compliance date extensions many be granted any time after the enactment of the statute, to run from the date they are granted up to the beginning of 1979. In addition, however, the statute provides two different types of short-term relief ("suspensions") which can run up to June 30, 1975.

One category of suspension is available only to those who would also be eligible for compliance date extensions — namely users which began conversion to coal between September 15, 1973 and March 15, 1974 and recipients of coal conversion orders.

The primary standard condition is applicable to such suspensions but the regional limitation is not. As with compliance date extensions, all state and local requirements that would compel a fuel other than coal to be burned are pre-empted.⁴⁹ No compliance schedule is required (it wouldn't make sense since such a short period is affected). Finally, the requirements of the Administrative Procedure Act are explicitly made inapplicable to the issuance of suspension orders (though a hearing must be held unless there is "good cause" for omitting it) and the scope of judicial review is greatly cut back.⁵⁰

Clearly the statutory mechanism allows for a far greater impact on air quality under suspensions than where the long-term relief of a compliance date extension is at issue. A source may receive the first type of suspension, which is not subject to the regional limitation, even when low-polluting fuel is still available to it. And the only necessary condition when that fuel is unavailable is that an air pollution emergency be avoided. Here, in other words, existing violations of primary standards may be aggravated if there is no other alternative.

These dangers, though, seem greater than they are. The first type of suspension really makes sense only for sources which are converting to coal permanently. Accordingly, they are unlikely to be sought except by sources which know they can also meet the tougher conditions for a compliance date extension. The second type of suspension basically codifies existing practice. As I said at the beginning of this article, the mandatory date for achieving primary air quality standards under the Clean Air Act is May 31, 1975 (or as late as 1977 if an extension has been granted). The only guidance given by the statute for actions before that date is that the standards must be achieved "as expeditiously as practicable." Three courts of appeals have held that under this language states may grant limited variances from air pollution control requirements during the period before attainment is required. One court has dissented.⁵¹ (No such variances may be [4 ELR 50108] granted except after a formal administrative hearing pursuant to § 110(f) of the Clean Air Act).

During the "energy crisis" of last winter, numerous states took advantage of this "variance" authority to temporarily relex the air pollution requirements applicable to sources whose normal fuel supplies had been cut off by the Arab oil embargo. Since this coming winter will also be over before the statutory deadline for attaining air quality standards, states could have followed the same course during it even if ESECA had never been enacted. The one significant change ESECA has made to the pre-existing state of affairs is to allow the Administrator of EPA to grant such a "variance" on his own even in cases where a state is unwilling to act.

VII. Summary

ESECA will compel certain power plants and other similar installations either to switch to coal or continue burning coal and to burn it until at least 1979. Only plants which are currently burning coal or can switch to it with a minimum effort are candidates for such orders. A source which has been burning coal since September 15, 1973 may be compelled to continue, but may not receive any relaxation of air pollution control requirements in return. A source in an air quality control region where the primary air quality standards for an air pollutant are being violated may be ordered to convert to coal, but may not receive any relaxation of the control requirements for the pollutant for which air quality standards are being violated. All other sources may receive extensions of air quality requirements applicable to them until as late as 1979, but must apply interim control measures to ensure that no primary air quality standard will be violated, and must make binding plans to acquire a scrubber or low-sulfur coal sufficient to meet the original standards when the extension lapses.

Short-term suspensions lasting no later than June 30, 1975 are also provided for, but in most cases they will add little to the variance procedures currently being administered under existing provisions of the Clean Air Act.

1. Clean Air Act of 1963, 77 Stat. 392.

2. 42 U.S.C. §§ 1857 et seq.

3. Signed into law June 22, 1974. P.L. 93-319, 88 Stat. 246, 4 ELR 41231.

4. For this reason, I may slip over some minor problems in my exposition for the sake of clarity on the main points.

5. The coal conversion provisions of ESECA are set forth in §§ 2 and 3 of that statute. However, the only purpose of § 3 was to add a new § 119 to the Clean Air Act. Accordingly, § 2 is cited by number, while § 3 is not cited at all — § 119 is cited instead.

ESECA is a rewrite of certain provisions of the Energy Emergency Act, which passed Congress in early 1974 and then succumbed to a Presidential veto. It has a long and complicated legislative history. The relevant committee reports are:

(i) S. Rep. No. 93-498, 93d. Cong., 1st. Sess. (Nov. 13, 1973). The original Senate report on the Energy Emergency Act.

(ii) H.R. Rep. No. 93-710, 93d. Cong., 1st Sess. (Dec. 10, 1973). The original House report on the Energy Emergency Act.

(iii) S. Rep. No. 93-663, 93d. Cong., 1st. Sess. (Dec. 20, 1973). The original conference report on the Energy Emergency Act. This version of a conference bill failed of passage in late December of 1973. A new version with the coal conversion provisions unchanged was reported out in January. H.R. Rep. No. 93-763, 93d. Cong., 2d. Sess. (Jan. 22, 1974).

(iv) S. Rep. No. 93-681, 93d. Cong., 2d. Sess. (Feb. 6, 1974). A revised version of (iii), with the coal conversion provisions changed somewhat. This version of the bill was adopted by the Congress and then vetoed. The Senate failed to override, 120 Cong. Rec. S2926 (daily ed. March 6, 1974).

(v) H.R. Rep. No. 93-1013, 93d. Cong., 2d. Sess. (April 26, 1974). This is the House report on ESECA. There was no Senate report — in the interest of speed, the committee members with jurisdiction took a final Senate version of the legislation directly to the floor. See 120 Cong. Rec. p. S8009 (daily ed. May 14, 1974).

(vi) H.R. Rep. No. 93-1085, 93d Cong., 2d Sess. (June 6, 1974). The final conference report on ESECA. Cited "Conference Report."

6. See Conference Report, supra n. 5(vi) at 33.

7. P.L. 93-319, § 119(a) (6).

8. If a region is exceeding standards for one pollutant but not for another, the regional limitation would not apply to that second pollutant and an extension could be granted for complying with control requirements aimed at the second pollutant.

9. See Conference Report, supra n. 5(vi) at 34.

10. 120 Cong. Rec. S8013 (daily ed. May 14, 1974) (Senator Muskie), S8023-24 (Senator Buckley); 120 Cong. Rec. S10535 (daily ed. June 13, 1974) (Senator Buckley).

11. The purposes of ESECA are set forth in § 1(b).

12. The statute actually says that FEA "shall" order power plants to convert and "may" order other installations to convert, but in each case only if certain other conditions are met.

FEA also has authority under § 2(c) to order certain categories of new power plants "in the early planning process" to be designed to burn coal. The question of air pollution variances for these plants does not arise, since they will be subject to the new source performance standards for power plants promulgated under § 111 of the Clean Air Act and set forth at 36 FR 24876 (Dec. 23, 1971). The Conference Report recognizes this at page 29.

13. Conference Report, supra n. 5(vi) at 25. But see 120 Cong. Rec. S10408-09 (daily ed. June 12, 1974) (Senator Muskie).

14. Id.

15. Throughout ESECA, "coal" includes coal in gasefied or liquefied form. § 2(e) (2); § 119 (a) (4).

16. P.L. 93-319, § 2(d).

17. P.L. 93-159.

18. Subject to a measure of EPA authority to modify the distribution pattern to send non-polluting fuels where they are needed most. § 119(j); § 7(a). 120 Cong. Rec. S8031 (May 14, 1974) (Senator Muskie and Senator McClure).

19. In fact, earlier versions of the legislation provided for FEA certification even of plants which had begun conversion in this time frame before they would be eligible for a compliance date extension. See S. Rep. No. 93-681, 93d. Cong., 2d. Sess. p. 29 (1974).

20. See 119 Cong. Rec. H11410 (Dec. 14, 1973) (Cong. Satterfield); S. Rep. No. 93-663, 93d. Cong., 1st. Sess. p. 81 (1973).

21. See Conference Report, supra n. 5(vi) at 33.

22. P.L. 93-319, § 119(c) (1) (C).

23. P.L. 93-319, § 119(c)(1).

24. P.L. 93-319. §§ 119(c) (2) (A) (iii), 119(c) (2) (B), 119(c) (2) (C). However, if a source is "able" to burn available coal and comply with SIP requirements without an extension, no extension may be granted. 119(c) (2) (A) (i). The statute specifies that "ability" is to be defined exclusively in terms of technological feasibility. 119(d) (3) (B).

25. Regulations outlining the required contents of such compliance schedules were proposed by EPA at 39 FR 32624 (September 10, 1973).

26. See Conference Report, supra n. 5(vi) at 36-38.

27. Id. at 38; 120 Cong. Rec. H5002 (daily ed. June 6, 1974) (Cong. Nelsen); 120 Cong. Rec. S10425 (daily ed. June 12, 1974) (Sen. Randolph); S10426 (Sen. Baker).

28. Conference Report, supra n. 5(vi) at 37.

29. P.L. 93-319, § 119(a) (5).

30. Indeed, ESECA is even stricter than that. Section 4 provides for EPA to review SIPS and to encourage (not compel) states to change them if they are more stringent than they need to be. However, the compliance schedule to be submitted as the price of a compliance date extension must provide for compliance with the plan requirements in effect of the date of submittal of the schedule. § 119(c) (2) (C). In other words, a source which had received a compliance date extension under § 119 might have to comply with the original form of a SIP requirement which had later been relaxed as more stringent than necessary. Such a result seems to make little sense from a policy standpoint. However, while the bill was under consideration in the Senate FEA pointed to exactly this provision and suggested that it be changed, a suggestion that was not accepted. 120 Cong. Rec. S10414 (daily ed. June 12, 1974). See also Conference Report pp. 38-39.

31. The question to what extent these approaches may be used to meet a primary standard condition is quite complex, and will not be addressed here. For discussion in the legislative history, see Conference Report pp. 33-34, 120 Cong. Rec. H5001 (daily ed. June 11, 1974) (Cong. Staggers); 120 Cong. Rec. S10409-23 (daily ed. June 12, 1974) (Senator Muskie).

32. P.L. 93-319, § 119(d) (3) (B) (iii).

33. Conference Report, supra n. 5(vi) at 35.

34. Id.

35. P.L. 93-319, § 119(c) (1) (A).

36. P.L. 93-319, § 119(d) (3) (B) (i).

37. On the other hand, the sulfates provisions by their nature are less clearcut and defined than such requirements as the "primary standard condition," and no findings as to sulfates need be made before a conversion order is issued. See Conference Report 27-28. The revocation of a compliance date extension might be a clumsy solution to a sulfates problem, and there will be cases in which even it will not be available. In these circumstances there is much to be said from a policy standpoint for simply allowing EPA to take whatever steps are called for to deal with a sulfates problem once it has been determined to exist.

38. Earlier versions of the legislation contain some discussion of the term "significant risk." S. Rep. No. 93-663, 93d. Cong., 1st. Sess. p. 81 (1973); H.R. Rep. No. 93-1013, 93d Cong., 2d. Sess. 20-21 (1974). However, these discussions occur in the quite different context of violations of existing air quality standards and would appear to be of limited relevance where sulfates, for which no air quality standards have been promulgated, are concerned.

39. P.L. 93-319, § 119(b) (2).

40. P.L. 93-319, § 119(c) (4).

41. Conference Report, supra n. 5(vi) at 28.

42. With two added wrinkles. First, if the EPA Administrator finds that a source subject to a coal conversion order is not meeting its primary standard condition or its regional limitation, he can, rather than seeking judicial enforcement, revoke any applicable compliance date extension after a public hearing, § 119(d) (3) (A) (ii).This would automatically reinstate the original plan requirements.

Second, if the EPA Administrator determines that compliance with a primary standard condition or regional limitation is technologically impossible for a source (or that its enforcement is restrained by court order), he may in effect suspend the coal conversion order, § 119(d) (3) (B) (i-ii). This, too, would probably reinstate the original SIP requirements. (See above.)

The Conference Report emphasizes (at 72) that conversion orders are not to be voided simply because the source is reluctant to comply with air pollution control requirements. Rather in such cases the conversion order should remain in effect while enforcement action under the Clean Air Act is taken.

43. P.L. 93-319, § 119(a) (4).

44. P.L. 93-319, § 2(f).

45. P.L. 93-319, § 2(b) (3) (B). See also §§ 119(d) (1) (B) and 119(d) (2) (B).

46. Conference Report, supra n. 5(vi) at 26.

47. This language presumably means that economics may not be considered in deciding whether a compliance date extension is necessary, or in determining when a source will be able to comply with a primary standard condition or a regional limitation. However, if a compliance date extension is available, it appears that economics may be considered in setting the terms of the compliance schedule even though they could not be considered in setting the primary standard conditions. The statute appears to contemplate this when it calls for compliance with the original control requirements as soon as "practicable." See 120 Cong. Rec. S8014-15 (daily ed. May 14, 1974) (Senator Muskie).

48. FEA, too, must hold a public hearing before issuing coal conversion orders. Once again it is clear from the legislative history that no cross-examination is required. Conference Report 28.

Section 12 of ESECA provides for enforcement by FEA of coal conversion orders. There is no explicit provision for their judicial review. This presumably makes available review in the federal district courts under the general provisions of 5 U.S.C. §§ 702-704.

49. P.L. 93-319, § 119(f).

50. P.L. 93-319, § 119(b) (1) (B).

51. Natural Resources Defense Council (NRDC) v. EPA, 478 F.2d 875 (1st Cir. 1973); NRDC v. EPA, 483 F.2d 690 (8th Cir. 1973); NRDC v. EPA, 494 F.2d 524 (2d Cir. 1974); but see NRDC v. EPA, 489 F.2d 390 (5th Cir. 1974), cert granted __ U.S. __ (1974).

4 ELR 50101 | Environmental Law Reporter | copyright © 1974 | All rights reserved