Though the Arab oil embargo recedes mercifully into history, its legislative progeny remain with us. One such creation is the Energy Supply and Environmental Coordination Act of 1974¹ (ESECA), a proclamation by Congress that the oil- and gas-burning electric utilities of the nation would, where feasible, have to convert to the use of coal. Recent months have seen this mandate move from rhetoric to reality in a dizzying rush of events that included issuance of impact statements, promulgation of regulations, issuance of conversion orders, and congressional consideration of amendments.

It is time to take stock.

Some environmental issues are clear-cut, capable of being fully analyzed within their own four corners. Coal conversion epitomizes the opposite type, touching as it does on several of the most intensely fought environmental issues of the day. It has, most visibly, led to disconcerting pressures upon the Clean Air Act, an enactment already under anti-environmental fire. It has renewed the prennial debate on the health effects of the stationary source emissions, and has provided a focus for further attacks on the stack gas scrubber. It has brought new urgency to the stripmining controversy. Lastly, and most significant, it has forced government officialdom to ask the critical question: Where should the burden of the nation's drive to reduce oil consumption and lessen import dependency fall most heavily?

As a result of this large number of side issues, the coal conversion program poses regulatory problems of unusual complexity. Revisions in the program are currently being hammered out in Congress, but the essential elements are not likely toi be altered. The pre-eminent question can, therefore, be addressed now: For what we will gain, is the coal conversion program as presently constituted wourth what it will cost? Allowing for the many imponderables, this article suggests a preliminary verdict in the negative.

I. Elements of the Program

A. The Official Justification

The most readily understood feature of the ESECA program is its official justification: to lessen United States dependence on foreign oil importation. Due to lessening domestic oil production and imcreasing domestic use, importd dependence can, of course, only grow stronger unless countermeasures are taken. A prime target of such measures, runs the argument, should be the electric utilities, since the oil consumed in this sector is substantial (1.5 million barrels per day),² and almost 80 percent of it is imported. Most importantly, a domestically abundant fuel, i.e. coal, could be substituted. Thus, ESECA represents a political judgment that the contribution to energy independence which a carefully limited conversion program could make is worth the undersirable consequences such action might entail.

Related justifications have been suggested. The Conference Report for ESECA emphasizes the need to increase the burning of coal in the near-term future, so that (a) the opening of new coal mines will be immediately spurred; (b) more oil and natural gas will be available for energy uses to which coal is not adaptable; and (c) the purposes of the Clean Air Act will be effectuated by shifting as much low-pollution oil and natural gas as possible to homes and businesses where, in contrast with powerplants, continuous emission control is not available.³ All three of these predicted consequences of the ESECA coal conversion program are open to some degree of question, as this article will demonstrate. A final justification offered for oil-to-coal conversion is a claimed savings in fuel costs. This claim rests on complex assumptions about future market prices, the BTU content of the coal used, and the relative operating costs of burning coal and oil — assumptions to be tested infra.

B. Before ESECA

The idea of coal conversion was being studied long before ESECA was enacted or even contemplated. As far back as January, 1973, the Federal Power Commission surveyed about 725 fossil-fuel powerplants to determine which facilities could be converted should oil inventories, declining even then, reach a critical level.⁴ In April of that year, many major oil companies [5 ELR 50147] stopped soliciting business from new customers, and Congress enacted the Economic Stabilization Act Amendments of 1973⁵ authorizing the President to order mandatory allocations of gasoline, primarily to assure that sufficient supplies were distributed to meet essential needs. Allocation authority under this Act was transferred in the fall of 1973 to the newly-created Federal Energy Office (FEO) by the Emergency Petroleum Allocation Act (EPAA).⁶

Though not expressly designed for such a task, EPAA had the potential to be used as a tool for forcing oil-burning electric utilities to burn coal instead. The House Report on EPAA states:

Allocations to utilities should be made to the extent necessary to preserve the reliability of our utility services…. The President would be expected to take into account the availability to the utilities of alternative fuels, such as coal.⁷

It is unclear whether this regulatory potential went unnoticed or the Nixon Administration simply wanted to indulge its often manifested preference for voluntary initiatives from the private sector. In any event, William Simon, then Administrator of FEO, sent a telegram⁸ to the nation's utilities requesting those oil- and gas-fired plants which could feasibly be converted to coal-burning to begin conversion as soon as possible. In the months thereafter, some 25 east coast powerplants, consuming a total of 150,000 barrels of oil daily, heeded the call.

At this point the first of several instances occurred where the coal conversion program placed environmentally disconcerting pressures on regulatory structures at its periphery. During these months of the oil embargo, several states granted variances from their state implementation plans (SIPs) under the Clean Air Act so that specific steam electric plants could convert to coal use without violating applicable sulfur oxide emission standards. The legality of these variances has only recently been affirmed.⁹

During the half year between the enactments of EPAA and ESECA, the principal energy bill in Congress was the Energy Emergency Act (S.2589), an amalgam of energy programs including, in addition to coal conversion, reduction of crude oil prices, elimination of windfall profits, and gasoline rationing authority. After a presidential veto, the House Interstate and Foreign Commerce Committee took up consideration of a modified bill (H.R. 13834), but the veto-inducing provisions were again added on. Under threat of a second veto, fearing an indefinite deadlock, the House pared off those provisions felt to be most acceptable to the Administration, made them into a separate bill (H.R. 14368), and two days later reported to out of committee. This bill became ESECA,¹⁰ and was signed into law on June 22, 1974. Its coal conversion provisions are nearly identical to those of the original Energy Emergency Act reported out of conference months earlier.

C. ESECA

Like much legislation spawned by crisis, ESECA does not represent the draftsman's art at its finest. It is an exasperating tangle of cross-references and cross- cross-references, conditions and conditions on conditions. Though its provisions span many areas, coal conversion lies at its heart.

Under ESECA, the Administrator of the Federal Energy Administration (FEA)¹¹ "(1) shall, by order, prohibit any powerplant, and (2) may, by order, prohibit any major fuel-burning installation, from burning natural gas or petroleum products as its primary energy source …" if several conditions are met.¹² The burning of coal by the plant or installation must be practicable and consistent with the purposes of ESECA.¹³ The plant or installation must have the capability and necessary plant equipment to burn coal. Coal and coal transportation facilities must be available while the prohibition order is in effect, and, in the case of powerplants, the order may not impair reliability of service. The FEA Administrator may also order plants presently burning coal not to switch to oil or gas,¹⁴ and [5 ELR 50148] may require that any plant still in the early planning stages be designed with coal-burning capability.¹⁵

ESECA draws a sharp line between the issuance of a prohibition or construction order, and the order actually taking effect. FEA controls the former, as described supra, but EPA controls the latter. An FEA prohibition or construction order may issue, but may not take effect, until the EPA Administrator finds that the plant or installation can burn coal and still comply with appropriate emission limitations and/or coal-content restrictions. If the plant can comply with all existing such requirements (primarily state and local), then everything is simple — the order take effect and no exceptions are necessary. If the plant cannot so comply, it must seek a "compliance date extension" — a temporary suspension of existing emission and coal-content restrictions that cannot be met. EPA must grant the extension where:

1. The plant is unable to burn available coal and meet existing emission and coal content requirements.

2. During the extension period, the plant will be able to meet "primary standard conditions." These are emission limitations and coal content restrictions which EPA determines are the most lenient it can impose on a plant without that plant contributing to a violation of a primary ambient air standard. (Primary ambient standards, unlike emission and coal content requirements, can never be suspended.) A compliance date extension would only make sense, of course, where the primary standard condition was laxer than the otherwise applicable SIP restriction — as it usually is.

3. EPA has approved a compliance schedule for the plant. The schedule must require that the plant meet, as soon as practicable (but no later than 1978), the SIP emission limits applicable when the schedule was submitted.¹⁶

Plants which voluntarily began conversion to coal during the period from September 15, 1973 to March 15, 1974 (and completed such conversion), must also be granted compliance date extensions upon satisfying the above conditions. Here FEA is not involved at all, since there is no prior prohibition order.

The EPA Administrator has one final task — that of determining the earliest date on which the plant will be able to meet the prescribed primary standard conditions. On that date, and no earlier, the prohibition order and compliance date extension take effect.¹⁷ Even with a compliance date extension, however, any plant located in an air quality control region¹⁸ (AQCR) where a primary ambient standard is exceeded must meet the SIP emission limit for that pollutant. (As thus applied, the SIP emission limit is referred to by ESECA as a "regional limitation.")

Those plants which can neither meet existing requirements while burning coal, nor qualify for an extension, receive prohibition orders with effective dates set to allow time for meeting those requirements rather than, as above, for meeting primary standard conditions.

In brief, a powerplant which is ordered to convert must either meet SIP requirements or be granted a compliance date extension until it can meet SIP requirements. If granted an extension, it must nevertheless meet primary standard conditions, and must in addition meet regional limitations (SIP limits) for any pollutant whose concentration within the AQCR exceeds the primary ambient standard. Underlying this labyrinthine scheme is one simple imperative: obtain as much coal conversion as possible without significantly endangering the public health.

(ESECA also authorized FEA to order emergency short-term conversions, with much looser environmental safeguards. Because this short-term authority involves only prohibition orders which expire by June 30, 1975, and was in fact never used by FEA, it is not dealt with here.)

Overall, the coal conversion scheme set up by ESECA is a remarkably cautious program, reflecting the return to legislative sanity in the months following the Arab oil embargo.¹⁹ The House Report was most emphatic that the limited easing of Clean Air Act requirements did not signal an abandonment of Congress' commitment to clean air and the environment.²⁰ Environmentalists have, in general, agreed. Others, however, have asserted that ESECA's impact may be minimal, but only because few utilities will be able to convert, given the stringent prerequisite conditions in the Act. In any event, ESECA was never intended by Congress as more than a temporary, short-term resolution of the [5 ELR 50149] conversion issue, and must be judged accordingly.

The program involves numerous details not noted here, and where relevant these are mentioned in the following sections. There are several points, however, which are not amenable to consideration elsewhere.

First, it is instructive to compare the detailed provisions on NEPA applicability in § 7(c)(2) of ESECA with the total absence of such provisions in the Emergency Petroleum Allocation Act of 1973,²¹ enacted but a half year earlier. Under ESECA, any FEA order regarding conversion, designing of new plants to burn coal, or allocation of coal to converted plants, is subject to the full provisions of NEPA if in effect for more than one year.²² EPAA, on the other hand, has been judicially interpreted as requiring no NEPA impact statement at all in light of the national oil emergency in existence when it was passed.²³ Admittedly, ESECA also takes the trouble to exempt EPA actions under the Clean Air Act from NEPA impact statement requirements,²⁴ but this merely affirms what is already the case since several court decisions have viewed EPA's regulatory activites under the Clean Air Act as so exempt.²⁵

Second, the precipitous deadlines in ESECA (e.g., one year from enactment to expiration of order-issuing authority) compelled a reduced complement of procedural safeguards. Only informal and expedited procedures are required prior to the issuance of orders. Formal adjudication and rulemaking were not intended.²⁶ Also declared to be inapplicable are various provisions of the Administrative Procedure Act regulating the conduct of hearings, submissions by parties, and so on. The Conference Report includes the following:

To the extent that constitutional requirements may necessitate some opportunity for cross-examination with respect to some issues of fact, it is anticipated by the conferees that this opportunity would be provided by the courts in judicial review or enforcement proceedings or by means of a remand to the appropriate Administrator.²⁷

In light of due process principles established since Hannah v. Larche,²⁸ however, this shifting of constitutional safeguards to the reviewing forum appears to be of doubtful legality.

D. The Program Evolved from ESECA

Rog Morton's marching orders are to reduce imports of foreign oil by one million barrels a day [1 mb/d] by the end of 1975, whether by savings here at home, or by increasing our own sources.

With these words in President Ford's October, 1974 Economic Message to Congress,²⁹ the ESECA coal conversion program began to take form. At an October 24 meeting of the Energy Resources Council, the portion of this 1 mb/d savings goal expected from utility conversions was pegged at 235,000 b/d. For 1980, a savings goal of 1 mb/d of oil was set for the conversion program alone, amounting to a five percent reduction in the overall United States consumption predicted for that year.

It was, however, but a rhetorician's dream. The Federal Power Commission's Technical Advisory Committee on Fuels has summed up the prospects for meeting the President's short-range goal.³⁰ With priority allocations of required equipment, and easing of the clean air laws, the nation's utilities could convert the requisite generating capacity by the end of 1975. Again with priority allocations and incentives, locomotive and coal car manufacturers could produce the equipment needed to haul the additional coal. However, the time remaining until the end of 1975 is simply insufficient to allow the opening of enough new coal mines. Therefore, the short-range goal of saving 235,000 b/d of oil by coal conversion alone is almost certainly unattainable, and this article deals only with the prospects for achieving long-term goals.

There is some confusion as to precisely what the Administration's conversion strategy is. Was Ford to be taken literally when he demanded total elimination by 1980 of oil-fired plants from the nation's base-loaded capacity?³¹ Base-loaded plants are those kept operating by utilities all the time, and except in a few systems are [5 ELR 50150] not usually oil-fired. Thus, total elimination of all base-loaded oil-fired plants would involve a relatively small number of plants. Did Ford instead mean all oil-fired capacity? This, too, seems unlikely (as well as impossible) for it would mean converting twice as much capacity as would be needed to achieve the 1980 goal of saving 1 mb/d. In addition, the Fact Sheet accompanying the President's Economic Message, a major document on the Administration's conversion objectives, has been criticized within the government itself as factually inaccurate.³²

Out of the presidential limelight, the FEA's approach to coal conversion has been more hard-nosed and less rhetorical. FEA rarely speaks of goals, but rather is simply identifying all those oil-fired powerplants that can feasibly be switched to coal, and letting the oil-savings figures take care of themselves. There are two categories involved: oil- and gas-fired plants presently in operation, and plants in the construction or planning stage for which oil or gas burning is contemplated. Among the former, FEA has identified the greatest potential for coal conversion among those plants which have burned coal in the past, are no more than 23 years old, and have a capacity of at least 25 megawatts. Using these criteria, an initial list of 80 candidates for conversion was assembled.³³ However, largely for lack of time, only 32 of the 80 candidates were actually issued prohibition orders³⁴ before the statutory deadline of June 30, 1975.³⁵ Since it appears probable that ESECA will be amended to extend this deadline, it is assumed here that most or all of the 80 candidates will ultimately receive prohibition orders.

Among plants still being planned or constructed, only those not yet having foundation pilings in place are being considered,³⁶ since plants in more advanced construction stages cannot so readily be redesigned. Construction orders were issued to 47 planned powerplants before the statutory deadline.³⁷

FEA regulations implement the NEPA requirement of ESECA through a straightforward three-step process.³⁸ At the outset, an impact statement for the entire conversion program is required (issued April, 1975). Thereafter, before any prohibition order is issued, public hearings are held with an opportunity for comment on site-specific impacts of the prohibition order. Once the order is issued, but before the Notice of Effectiveness is served, FEA analyzes the environmental impacts and either (a) finds that conversion of the plant in question will not have a significant impact on the quality of the human environment, or (b) issues an impact statement covering site-specific impacts not discussed in the programmatic statement or other publicly available documents. A public hearing on the site-specific impact statement may be requested, but is not automatically granted.

Understandably, this NEPA procedure is designed to conserve FEA resources to the maximum extent consistent with that statute. Since § 7(c)(2) of ESECA only requires that long-term prohibition orders "be subject to the full provisions of [NEPA]," rather than deeming them major federal actions per se, FEA correctly conditions the preparation of a site-specific impact statement upon a finding that the underlying prohibition order constitutes a major federal action. Thus, a prohibition order directed to a powerplant already burning coal 80 percent of the time might not require a site-specific impact statement. Somewhat less correctly, however, FEA assumes in its regulations that the statement, where required, need not deal with site-specific impacts treated in other official documents available to the public. If these other documents were also FEA documents, the omission might be overlooked, since the overriding NEPA goal of ensuring consideration of all relevant environmental impacts in the sponsoring agency's decision-making would nevertheless be achieved.But allowing the existence of non-FEA documents to satisfy the NEPA obligations of FEA skirts this important objective.³⁹

As delineated in FEA regulations implementing ESECA, the administrative sequence for prohibition orders (and, with slight variations, for construction orders) is as follows:⁴⁰ initial FEA findings, publication of Intent to Issue Prohibition Order, public hearings, issuance of prohibition order with amended findings, EPA notification or certification, FEA environmental analysis, and finally, service of Notice of Effectiveness upon the utility. The procedure is roughly the same regardless of whether it is initiated by FEA or by application of the utility. A host of procedures for appealing, modifying, interpreting, and rescinding prohibition orders is provided.

E. Proposed Amendments

Unfortunately, FEA's role has not been quite as passive as the foregoing would indicate. Impatient from the outset with the environmental constraints in ESECA, FEA has argued the oil-savings benefits of a [5 ELR 50151] laxer ESECA whenever the opportunity presented itself. Thus, in the Draft Environmental Impact Statement (DES) on ESECA, FEA discussed the number of oil-fired plants that could be converted and the resulting reduction in oil importation that would attend each of four distinct scenarios.⁴¹ These scenarios involve placing progressively less stringent environmental restrictions on the conversion program, as follows:

1. Full implementation of ESECA provisions.

2. Implementation without the significant risk provision (discussed infra).

3. Implementation without the significant risk provision or regional limitations.

4. Implementation without the significant risk provision, regional limitations, or primary standard conditions. In this "base case," the only limits on conversion would be technical feasibility and availability of coal, regardless of sulfur content.

The DES goes on to show that as one moves from scenario one toward scenario four, the additional plant generating capacity made lawfully convertible becomes greater with each jump. Nowhere, however, is it even mentioned that of these four scenarios, only scenario one is lawful, i.e., in full compliance with ESECA. Since the DES on ESECA was issued at about the time the Administration launched its drive to have the environmental restrictions in ESECA relaxed, it seems likely that the true purpose of the DES scenarios was to create a climate of acceptability for Administration-proposed amendments. In the Final Environmental Statement (FES), FEA retains the four scenarios without change, but expressly concedes that at least the last two are not permitted under existing law.⁴²

On January 15, 1975, President Ford announced that he was submitting to Congress several amendments to ESECA which would greatly increase the number of powerplants that could promptly be converted to coal.⁴³ Shortly thereafter, a sweeping omnibus energy package was introduced (S. 594, H.R. 2633)⁴⁴ containing a score of proposed amendments impinging directly or indirectly on the ESECA program. Those directly amending ESECA included:

1. Extension of the FEA Administrator's authority to issue prohibition orders from June 30, 1975 to June 30, 1977.

2. Extension of the deadline by which such orders must take effect from January 1, 1979 to January 1, 1985.

3. Addition of two new categories of powerplants subject to prohibition orders:

a. plants acquiring coal-burning capability after ESECA was enacted;

b. new plants which are, or could be, required to meet an ESECA order requiring coal-burning capability. (Presently, only the capability may be required.)

These amendnents are innocent enough, being little more than procedural adjustments. But a less benign view is evoked by the indirect amendments:

1. Proposals to amend the Clean Air Act

a. Require, in certain cases, that the EPA Administrator extend a plant's primary standard condition for SO[x] to 1985 if there are interim measures, including intermittent controls, which would allow the primary ambient standard to be met.

b. Plants would still be required to have compliance schedules, but no such schedule could require a plant to enter into any contract for a scrubber before 1980.

c. Eliminate regional limitations. Thus, even if a primary ambient standard was being exceeded in an AQCR, the plant would not have to meet the SIP emission limit, but only the primary standard condition.

d. Permit a plant that received a compliance date extension to come into compliance at its expiration with the SIP in effect at that time (rather than, as the Act now requires, with the SIP in effect when the compliance schedule was submitted).

2. Elimination of the "no significant deterioration" requirement of the Clean Air Act.

These amendments embody the central coal conversion issues and resolving them one particular way critically affects the future course of that program. Involved are energy-environment trade-offs of the highest order, trade-offs which the Administration's bill rather expectedly biases toward the energy side. Its legislative package, combined with widespread conversion to coal, would almost certainly raise ambient concentrations of sulfur oxide and particulates to levels hovering just below the primary ambient standard along much of the eastern seaboard. Is the gain in energy self-sufficiency worth the environmental and public health costs? Is there a more acceptable alternative resolution? These questions may be tentatively answered by examining first the environmental, and then the energy consequences of coal conversion.

II. Primary Environmental Effects

The environmental effects of coal conversion may be conveniently divided into those caused by events at the coal-burning plant itself (primary effects), and those deriving from other consequences of the conversion program (secondary effects).

A. Air Pollutants

Controlling the airborne emissions from fossil fuel-burning powerplants, especially those burning coal, has been called "the most important regulatory problem [5 ELR 50152] facing EPA."⁴⁵ A massive coal conversion effort by the electric utilities will do little to lighten EPA's burdens, since roughly 90 percent of the nation's convertible generating capacity lies along the already polluted east coast. Partly, this concentration owes to the high electrical load in this region. However, it is also due to more subtle historical developments. Starting in 1964, New York and other northeastern cities established sulfur emissions limitations which, due to the limited control technology available at that time, forced the use of low sulfur fuels by the electric utilities. Low-sulfur coal was only available at premium prices, but after 1966 cheap residual fuel oil could be imported and desulfurized, having been exempted that year from oil import quotas applicable to the east coast. Thus, by the early 1970's, residual fuel oil had replaced coal as the favored fuel of east coast electric utilities. ESECA will, therefore, have its main impact in this region.

Undoubtedly, the major shortcoming of the FES on ESECA is its failure to deal adequately with the health effects of conversion-caused increases in pollution. We are given comprehensive tables detailing the effects of conversion on ash pond overflow, and the future price of coal, but little quantification of its morbidity (illness) and mortality (death rate) effects. These effects must now be examined for each of the principal coal-fired plant emissions.

1. Sulfur oxides. Sulfur oxides, along with suspended particulates, will doubtless pose one of the major chemical control problems of the next decade. Coal-fired powerplants, which account for only 55 percent of United States generating capacity, produce 94 percent of powerplant-emitted sulfur oxides.⁴⁶ In ambient air, the pollutant is associated with both morbidity and mortality, primarily by its adverse effects on the upper respiratory tract and lung tissue. The effects are most prominent in the young, the aged, and those with existing respiratory ailments such as bronchitis and emphysema.⁴⁷ Particularly troublesome is the suggestion of several studies that there is no threshold level for sulfur oxides below which adverse health effects vanish completely.⁴⁸

However, while few dispute what a known exposure to sulfur oxide can do, there is divergence of opinion over precisely what areawide exposures can be inferred from concentration data obtained at specific monitoring stations. Thus, if a monitoring station near a powerplant records concentrations above the primary ambient standard for sulfur oxides (or any other pollutant), should this be seen as a health threat throughout the entire AQCR, including population centers hundreds of miles distant at its opposite end? Answering with a resounding no, utility spokesmen have attacked EPA maps showing large grey areas as the AQCRs which exceed SO[x] ambient air standards, implying as they do that the grey areas coincide with our dirty air problem. However, the sulfates matter may well render this issue moot.

2. Sulfates. Sulfates, unlike sulfur oxides, are not emitted directly by powerplants, but are instead the end product of chemical reactions undergone by sulfur oxides in the atmosphere. There are "strong indications" that as sulfate concentration in the ambient air is increased one progressively observes an increase in asthma attacks, aggravation of heart and lung disease in the elderly, mortality, and acute lower respiratory disease in children.⁴⁹ The concentrations for which these effects have been observed are currently exceeded in many areas of the country, primarily major urban centers. Non-health effects of ambient sulfates have also come into focus recently. These include corrosion of materials, retardation of plant growth, reduced crop yields, diminished visibility, reduced sunlight, and, through acid rain, adverse effects on agriculture, forestry, fishing, and so on.⁵⁰ It is thus becoming increasingly evident that the adverse environmental effects of powerplant-emitted sulfur oxides are wrought principally through their reactive end-product, sulfates.

The acid rain phenomenon is particularly serious. One recent study found that in the last two decades the acidity of rain in the eastern United States has increased up to 1,000 times normal levels, or as acidic as lemon juice.⁵¹ The problem continues to be one of the most effective arguments against the use of intermittent control systems as a strategy for meeting ambient air [5 ELR 50153] quality standards. Since the sulfur oxide-to-sulfate transformation takes place over several days, it is likely to involve a rather widespread air mass and blanket an entire region almost uniformly. Dispersion techniques such as intermittent control systems do little to reduce the total quantity of sulfur oxides emitted and hence have no effect on acid sulfate concentrations. The conclusion appears inescapable. Any system that does not reduce total sulfur dioxide emissions (e.g., intermittent controls with tall stacks) is unlikely to protect public health.⁵²

An equally clear implication of the acid rain phenomenon is that sulfur oxide problems may not be amenable to solution through remote siting of future coal-burning powerplants.

3. Particulates. These emissions, produced in substantial quantity by coal-burning powerplants, comprise a myriad of chemical compounds. They are also known as "fly ash."

Generalizations about the health effects of particulates are misleading since these effects are dependent on the composition of the particulates. They may, in addition, be dependent on which gaseous pollutants are present to react with. In the context of coal conversion, the most significant such gas would be sulfur dioxide. Studies of populations exposed to a combination of particulate and SO₂ levels just above the primary ambient standard for each pollutant indicated a "likely impairment of pulmonary function" and suggest increased respiratory diseases in children and increased mortality.⁵³ It is possible that in the many AQCRs where total suspended particulates standards will not be met because of fugitive dusts (from unpaved roads, construction sites, etc.), health effects may be minimal since SO₂ concentrations in these areas are low. This is little consolation, however, to those in major urban centers where concentrations of both particulates and SO₂ may be high. Ninety percent of United States convertible capacity is on the populous eastern seaboard. Also, some of the trace metals in fly ash (e.g., arsenic, beryllium, nickel) have toxic effects independent of which gaseous pollutants are present.

4. Nitrogen dioxide. Effects of this pollutant are also primarily on the lungs, and children are the most susceptible. Other effects include deterioration of textile fibers and leaf injury in vegetation. In the context of coal conversion, the quantity of NO_x emissions varies widely depending on the amount of nitrogen in the coal, the air-to-fuel ratio and the temperature of the plant boiler. The latter factor alone produces a variation in NO_x emissions from 18 to 55 pounds per ton of coal burned.⁵⁴

5. Other. Coal handling, crushing and pulverizing are all sources of dust at coal-fired powerplants. Another minor source of air pollution is accidental fires in coal piles and bunkers or any place where dust levels are high.Safety procedures can usually handle such problems.

* * *

Few question that the ESECA conversion program will bring about an increase in powerplant emissions, but the amount of the increase, hence the precise health effect, is unclear. Several factors will determine the precise quantity of airborne emissions produced by implementation of ESECA.

The effect of the tight timetable imposed by ESECA is that the actual quantity of pollution contributed by the conversion program will be determined at least as much by how many plants can be converted, as by the increase in emissions from each one. Whether a plant can be converted depends on a tangle of factors both express (supra) and implicit in ESECA, but the primary factors (assuming coal-burning capability) will likely be three: the emission limitations imposed, the emission control hardware available, and the supply of coal.

Emission limitations. ESECA imposes two types of emission limitations: "primary standard conditions" and "regional limitations" (SIP emission limits). Many states appear to have adopted more stringent SIP limits than is necessary to meet the national ambient air standards. (This is not, however, as certain as the utilities would have one believe.) Thus, the SIP limit is often lower than a plant's primary standard condition, since the latter represents the maximum emissions permissible for a given plant consistent with primary ambient standard compliance in that area. If a primary standard condition is deemed applicable to a plant (for the pollutant in question, the ambient standard is met throughout its AQCR), ESECA requires that the plant must nevertheless be in compliance with the stricter SIP limits by the end of 1978.

At this point, however, all certainty as to the precise emission limitations one can expect to be applicable vanishes. At the outset, it is unlikely that SIP limits now in effect will remain unchanged. Section 4(a) of ESECA provides that EPA shall inform a state whether its SIP provisions on stationary sources could be relaxed without interfering with any national ambient air standard.⁵⁵ In some AQCRs, state emission regulations are proving not stringent enough, and EPA has announced it will require that they be tightened.⁵⁶

[5 ELR 50154]

A further uncertainty lies with the concept of the primary standard condition. Section 119(d)(2)(A) of the Clean Air Act requires that standard conditions:

shall be those which … must be complied with by the source in order to assure … that the burning of coal by such source will not result in emissions which cause or contribute to concentrations of any air pollutant in excess of any national primary ambient air quality standard….

This seems to require that primary standard conditions be set at the maximum emission level consistent with maintenance of primary ambient standards, and no less. The very designation "primary standard condition," in relating to "primary ambient air standard," suggests as much. But does this not contradict the nondegradation requirement of the Clean Air Act?⁵⁷ The primary standard condition seems clearly inconsistent, under EPA nondegradation regulations,⁵⁸ in "Class I" and "Class II" regions, where little or no air quality deterioration would be permitted. It is consistent, of course, with the "Class III" concept, where deterioration up to the national ambient standard would be allowed. But if the current legal challenge to this tripartite EPA scheme is successful, even this partial compliance would vanich. Further uncertainty is created by the fact that primary standard conditions may, in certain instances, permit use of intermittent control systems.⁵⁹ One would, of course, allow significantly higher emission levels under an intermittent — rather than continuous — control system.

A special aspect of the emission limit uncertainty in ESECA is the Act's "significant risk" provision:

If the [EPA] Administrator finds that for any period … the burning of coal by [a powerplant] will result in an increase in emissions of any air pollutant for which national ambient air quality standards have not been promulgated (or an air pollutant which is transformed in the atmosphere into an air pollutant for which such a standard has not been promulgated), and that such increase may cause (or materially contribute to) a significant risk to human health, he shall … certify the period for which such [prohibition] order shall not be in effect….⁶⁰

The legislative history makes clear that the "transformed in the atmosphere" clause was aimed primarily at the sulfates problem.⁶¹ Without it, the significant risk provision would not clearly authorize suspension of a prohibition order when sulfate levels rose dangerously because sulfates are not, in the strictest sense, emissions.

As the sulfates issue assumes increasing importance in the coal conversion debate, the significant risk provision receives increasing attention. Yet a search of ESECA's language and legislative history for the precise meaning of "significant risk" is in vain. This is probably all to the good, since there are obvious advantages to the EPA Administrator having flexibility in administering this provision. Comparisons with other sections of the Clean Air Act do suggest upper and lower limits to the level of public health danger which would qualify as a significant risk. On the low side, it seems clear that "significant risk" designates a danger level greater than that tolerated by the national primary ambient standards, which need only "protect the public health."⁶² On the high side, "significant risk" seems to fall short of the danger level embodied in the emergency powers provision of the Clean Air Act, which speaks of "imminent and substantial endangerment to the health of persons."⁶³

The significant risk provision has not been favorably received by the utilities, because suspension of a prohibition order would also suspend a plant's compliance date extension.⁶⁴ This would require a [5 ELR 50155] powerplant, if it is to continue operating, to use scrubbers or switch back to burning oil — both alternatives imposing costs on the utilities. When the DES on ESECA casually labelled the entire Northeast and Mid-Atlantic region as a "significant sulfate risk area," the utilities suggested that this conclusion rested on "inadequate monitoring, unreliable analysis techniques, and untested meteorological assumptions."⁶⁵ At least one utility spokesman has insisted that EPA institute generic rule-making procedures with adjudicatory rights on the sulfates issue.⁶⁶

A final factor contributing the emission level uncertainty deserves mention. One key recommendation of the Ford Administration's amendments to the Clean Air Act (now in Congress) would eliminate the regional limitation currently imposed upon converted plants in AQCRs where the primary ambient standard is not being met. Why, runs the Administration argument, should the more stringent SIP limitation be re-imposed upon a plant when the ambient standard is being exceeded at only distant points in its AQCR? Primary standard conditions and the significant risk provision would, after all, still remain to assure that public health was not threatened by either criteria or non-criteria pollutants. The fallacy of this argument lies in administrative and judicial realities, rather than statutory logic. The regional limitation provision of ESECA offers a crude, but enforceable, method by which EPA can compel reduction of powerplant emissions in broad geographic regions where pollution levels are dangerously high. In its absence, the agency would face the unenviable task of having to adduce evidence of causation for each powerplant whose emissions it sought to curtail. (It is safe to presume the utilities would seek judicial review.) Moreover, the need for extensive new monitoring capabilities would severely tax agency resources.

The sheer magnitude of the emission increments occasioned by eliminating the regional limitation is disconcerting — again despite the statutory assurances. FEA estimates that 1977 SO₂ emissions within high sulfate east coast regions will reach 888,000 tons per year with the regional limitation, and 1,579,000 tons per year without it.⁶⁷ Additionallu, some observers have noted that the regional limitation provides an incentive for powerplants in the same AQCR to police each other, since the stringent SIP limit remains suspended only while the primary ambient standard for that pollutant is met at all points within the AQCR.⁶⁸ In sum, eliminating the regional limitation risks endangering the public health in order to accelerate the coal conversion timetable by a few years.

Passing by the question of what emission limitations a powerplant might anticipate under ESECA, one can at least say that rigorous enforcement of these standards was envisioned by Congress. For example, failure of the powerplant to acquire pollution control equipment or clean coal, if it were in fact able to do so, would not be a defense against an FEA prohibition order. The plant would then confront the unpleasant choice of burning oil and violating the prohibition order, or burning coal and violating the Clean Air Act.⁶⁹ Also, primary standard conditions, regional limitations, and any other requirements applicable to a source under § 119 of the Clean Air Act would be enforceable under that Act's citizens' suit provision.⁷⁰

The coal supply. This topic is more fully discussed in its own section (infra). Suffice it here to say that if only a handful of utilities convert (due to emission limitations), the added coal demand will easily be met. Should a larger number convert, the picture is clouded, with coal companies demanding a raft of concessions before they will guarantee an adequate supply. ESECA does give the FEA Administrator authority to allocate coal to any powerplant to which a prohibition order has been issued,⁷¹ but this may involve allocating away from existing coal-fired plants. If so, these existing plants would be forced back to oil or gas, contrary to ESECA's purposes.

Availability of continuous emission control systems. The battle between proponents of continuous and intermittent controls⁷² is beyond the scope of this article, but a [5 ELR 50156] few aspects of it bear underscoring as pertaining to coal conversion.

ESECA requires that the primary SO[x] control strategy for plants that cannot obtain low-sulfur coal shall be scrubbers, not intermittent controls.⁷³ But an acute — and typical — controversy rages between several federal agencies as to what is a realistic estimate of how many such devices could be installed in the time allotted. FEA scenarios assume that no installation of scrubbers (flue gas desulfurization, or FGD) is possible through 1977, and very little until 1979 or 1980.⁷⁴ In a recent report to Congress, however, EPA claims that even with their present capacity, scrubber manufacturers would be able to design and install FGD devices for 30,600 megawatts of generating capacity by 1977, for 76,400 MW by 1979, and so on.⁷⁵ Back on the other side, an FPC official contends that the preceding EPA figures are utopian, incorporating unverified claims about unproven variants.⁷⁶

Prior to 1979, however, shortages of FGD devices need not be a constraint on the conversion program. Until that time, powerplants with compliance date extensions would only have to meet primary standard conditions, rather than the stricter SIP emission limits, enabling the burning of dirtier coals than now allowed. And while under a compliance date extension, a plant might be permitted to use intermittent control systems. Furthermore, ESECA authorizes EPA to set priorities, if necessary, under which manufacturers of continuous emission control devices would be made to sell first to plants in AQCRs where the primary ambient standard is exceeded.

As ESECA presently reads, however, all powerplants will have to meet applicable SIP limits, and meet them without intermittent controls, by 1979. It is anticipated that, depending on the supply of low-sulfur coal available, between 26 and 41 powerplants will require FGD in that year.⁷⁷ By then, current problems of scrubber availability will certainly have abated.⁷⁸

The most widely used control for particulate emissions is the electrostatic precipitator. Current designs typically achieve 99.0 percent efficiency of particle removal. Vendor capacity for meeting conversion-induced demand appears to be adequate, but there may be lead-time problems. It requires three to six months to upgrade existing precipitators so that a plant can return to burning coal, and at least 18 to 24 months to install additional precipitators.⁷⁹ For most conversion candidates, one or both of these will surely be required since as long as the plant was burning oil or gas there was little need to maintain the precipitator.

Curiously, the conference committee on ESECA took a firmer stand on compliance delays for particulate emissions than for sulfur oxides:

… only such minor adjustments as the Administrator determines to be unavoidable should be permitted in existing compliance schedules and emission limitations for control particulates.⁸⁰

This is puzzling in light of the well-confirmed fact that it is the smallest particles, those the precipitator generally fails to trap, which pose the primary danger to health.

Control of nitrogen oxides is accomplished primarily by combustion modifications, rather than hardware modifications. Thus, considerations of availability and vendor capacity are not pertinent with regard to this category of emissions.

* * *

Giving due consideration to all these variables in the ESECA scheme, what is the best estimate as to how much conversion will actually take place and how much air pollution will actually be contributed? There are two answers, and they are worlds apart. The utilities, and some government officials, think that little pollution will be contributed, because as ESECA now stands, little conversion will take place. Publicly, however, FEA is cautiously optimistic, and projects conversion of 12,000 megawatts of generating capacity by 1978, 18,000 by 1980, and 23,000 by 1985.⁸¹ The 1985 figure represents full conversion of all candidates among existing plants and plants in the early planning process.⁸²

Projections as to the amount of air pollution actually contributed by the conversion above are, in effect, estimates [5 ELR 50157] on top of estimates, and should be so viewed.

*5*EFFECT OF CONVERTING 80 FEA CANDIDATE PLANTS ON
*5*TOTAL EMISSIONS FROM THOSE
*5*PLANTS (THOUSANDS OF TONS PER YEAR)83
	*2*1977	*2*1980
	Contin-	Partial	Contin-	Conver-
	uing	conver-	uing	sion of
	to use	sion of	to use	all 80
	current	the 80	current	candi-
	fuel	candidates	fuel	dates
Sulfur
oxides	668	771	764	846
Particulates	30	110	30	112
Nitrogen
oxides	404	427	453	642

Thus the FEA conversion schedule may involve, in 1980, a more than three-fold increase in particulate emissions and a 42 percent increase in NO_x emissions over the non-conversion scenario. The disparity in the 1980 estimates of SO[x] emissions is small, but nonetheless troublesome. It has, after all, taken four years (since the Clean Air Act was enacted) to reduce ambient SO[x] levels by a fragile 25 percent nationally. Even recently, it was projected that 42 of the 247 AQCRs would not meet national ambient SO[x] standards by statutory deadlines.⁸⁴

The 1977 figures are perhaps more important, since it is only during the 1975-1978 interim period that exceptions from existing emission limitations will be permitted. Though the number of plants converted by 1977 will be much smaller than the number converted by 1980, more lenient emission limitations during the earlier year will largely offset this disparity. Thus, for example, the 1977 particulates figure (110) is virtually identical to the comparable 1980 figure (112), though the former estimate assumes a far smaller number of plants converted. Simply stated, the interim period promises a small number of plants converted, but high emission levels from each one.

The increased emission levels which will accompany the coal conversion program implicitly raise one pressing question. Is it wise to focus so much of the nation's oil saving effort on utility conversion with its attendant health effects, when the major end-use of oil, automobile fuel, is asked to contribute so little? In reducing oil use by utilities but not cars, oil is taken from an end use where it is employed specifically for reasons of public health, rather than an end use which could be supplanted by less oil-consumptive substitutes such as mass transportation. Moreover, ESECA's contibution to reduction of oil imports will be minimal since only a fraction of the nation's oil- and gas-fired powerplants can feasibly convert.

B. Other Primary Environmental Impacts

While considerably less significant than the effects of conversion on air quality, several other primary environmental impacts deserve brief mention. There are, first of all, land use problems. Coal-fired powerplants require far more on-site space than oil- or gas-fired plants, owing to the coal piles and ash ponds. The coal pile is necessitated by the utility's need to keep large reserves on hand, usually a 60-90 days' supply, and may occupy 2400 cubic feet of storage area per MW of generating capacity. The land required for ash ponds is much more variable. Where land is available for on-site disposal, ash ponds occupying several acres are used. Where land is not available (or affordable), off-site disposal options include landfill, ocean dumping, or using the ash in building materials. However, the land used at the utility is inconsequential (except to neighbors) compared to the land requirements for transmission facilities. The latter is not, of course, affected by which fuel is burned to generate the electricity.

Two solid waste problems unique to coal-fired powerplants derive from the ash removed from boilers and precipitators, and the sludge removed from scrubbers. Both ash and sludge are usually transported to nearby ash ponds where the solid matter settles out and the water either evaporates, is released into the water source, or is recycled. The quantities of ash and sludge produced are prodigious. For example, the scrubber sludge from a 500 MW (medium-size) powerplant using dikes 30 feet high would occupy a new 300-foot-square plot each year. Treated ash and sludge can, with patience and expense, be covered with earth and revegetated, and each has commercially viable byproducts.

Coal-fired powerplants also affect water quality. Principal sources of chemical emissions are ash pond overflow⁸⁵ and coal pile drainage.⁸⁶ EPA effluent guidelines⁸⁷ applicable to all generating units of 500 MW or greater built after 1969, and all units built after 1973, require that these two effluent streams be controlled to a pH range of 6.0 to 9.0 and a total suspended solids limit of 100 mg/l (one-day maximum). However, the waste water from a coal-fired utility contains little biodgradable matter and thus easily accumulates to unacceptable levels in any small or slow-moving body of water. Drinking water quality in particular may be jeopardized. [5 ELR 50158] Even while the waste water is kept in the ash pond there are problems of infiltration and percolation, and these are not clearly regulated under the Federal Water Pollution Control Act.⁸⁸

Nor are the effects of conversion on water quality regulated by ESECA. Indeed, effects on air quality are the only environmental impacts for which ESECA sets mandatory standards.

III. Secondary Environmental Impacts

The coal conversion program will have several consequences other than those traceable to the generating site itself. Most significant among these secondary impacts are increased coal mining and construction of new coal transportation facilities. In these areas, however, coal conversion will not be the pre-eminent contributing factor which it represents in matters of air pollution, and this perspective should be kept in mind.

A. Increased Coal Mining

This resolves further into three aspects: exploration, extraction, and processing. Exploration may be quickly disposed of as involving little environmental impact in and of itself.

Extraction, of course, is quite another matter. Here, the environmental impact differs widely depending on whether the coal is deep mined or strip mined. Both techniques create pollution problems, but strip mining is clearly the chief offender. Strip mining causes air pollution (equipment exhausts and wind erosion), water pollution (suspended solids in the runoff), solid waste problems (overburden disposal), land use problems (sheer acreage consumed, rehabilitation difficulties), and of course, aesthetic impacts. Furthermore, it does appear that even if stringent strip mining legislation is enacted, most of the additional coal for converted powerplants will come from strip mining. The reasons are twofold. First, utilities, like all coal purchasers, pay according to delivered price per BTU. Thus, lower-BTU western coals must be sold at a lower price per ton in order to remain competitive. Lignite and sub-bituminous producers must, therefore, employ the cheapest mining technique available, and that is strip mining. Secondly, although utilities are aware that low-sulfur eastern coal also exists, they claim that the critical need for such coal will arise in the late 1970's, and that a strip mine can be brought into production in less time than an underground mine.

Admittedly, the western coal to be stripped has a low sulfur content. But since more of it must be burned to produce the same heat output, the ratio of sulfur emitted to electricity generated is not much different than with high-sulfur, high-BTU coals. The urgency of the utilities' need for low-sulfur coal is premised on their claim that scrubber technology is not yet reliable, for with a properly functioning scrubber system a utility may burn even high-sulfur coal and meet SIP limits. This premise is increasingly being undermined by the accumulating evidence that scrubbers can in fact function reliably.

Coal is often processed before it is shipped. In some regions the coal is relatively clean, requiring only breaking and sizing before shipment. Elsewhere, the coal must in addition be washed, generating a variety of water quality impacts. Washing, too, requires a significant amount of water, a potential problem in arid western coal fields.

Besides these "traditional" environmental impacts of coal mining, an all-out conversion program would contribute to a rapid expansion of coal-producing capacity, resulting in adverse impacts on vegetation, wildlife, habitat, soil structure, possible archaeological sites, and use of recreation areas. The "boom town" phenomenon may also be present.⁸⁹

B. New Transportation Facilities

Three techniques of transportating coal are used or contemplated. Transportation by rail is now, and is likely to remain, the dominant mode. A recent ICC study,⁹⁰ however, has concluded that more than $3 billion must be spent on additional railroad coal cars and locomotives to meet the added coal demand anticipated by 1980. Though it is not clear how much of this is attributable to utility converisons (under ESECA or otherwise), the fraction is undoubtedly a considerable one. ICC Commissioner Dale W. Hardin, who directed the study, commented that some form of federal aid could "demonstrate a truly national commitment which will make investment in coal cars attractive" and called on the ICC itself to make private coal car ownership attrative.⁹¹ Again the coal conversion program contributes to regulatory adjustment and economic distortion.

Coal transporting techniques of lesser importance include water barge and slurry pipeline. Legislation has been introduced into Congress to grant pipeline companies, under certain conditions, condemnation rights in the transportation of coal.⁹² There are several coal slurry pipelines in the planning stage.⁹³

[5 ELR 50159]

IV. The Coal Needed; The Oil and Gas Saved

A. Will the Additional Coal be Available?

Though the environmental aspects of coal conversion are troublesome, they might at least seem palatable if other aspects of the program promised great benefits with few difficulties. However, these non-environmental aspects offer little solace, and nowhere is this more clearly illustrated than in current thinking on how to increase the nation's coal supply to meet conversion-induced demand.

With sufficient time and a host of incentives for the mining industry, almost any new coal demand can be met, such is the vastness of the United States' coal reserves. The opening question must, therefore, be closely qualified: Will the additional coal be available within the next few years (recall ESECA's deadlines) without a wholesale capitulation to the demands of the coal industry? The added coal that must be mined to meet the President's goal of a one mb/d oil savings by 1980 from coal conversion alone would be 264,000 tons per day, or roughly 100 million tons per year.⁹⁴ If current FEA prohibition orders plus likely conversion prospects are used instead as a basis for estimating coal needs, then some 110,000 additional tons of coal will be required per day, or 42 million tons per year.⁹⁵

In answering the coal availability question, interest groups line up predictably. Utilities respond in the negative,⁹⁶ as does the nuclear power industry.⁹⁷ The coal industry insists that the job can be done, given the proper concessions.⁹⁸ A closer consideration of these concessions is warranted, keeping in mind the theme of peripheral regulatory effects.

If an additional 100 million tons per year of coal are required, it is predicted that 38 million tons will come from underground mines and 62 million tons from strip mines. At annual production capacity costs of $25 and $15 per ton, respectively, the capital requirements of the mining industry for creating this added capacity will be $1.88 billion.⁹⁹ Tax incentives or special subsidies may well be necessary to meet this need. Interestingly, the federal government may wind up indirectly subsidizing the coal industry through a program, currently under consideration,¹⁰⁰ of subsidizing the electric utility industry, then allowing the electric utilities to loan needed capital to the coal operators. Indeed, many utilities now expect the coal companies to come calling on them for needed capital.¹⁰¹

That the coal industry should not be prepared to accomplish a $1.88 billion expansion on its own should hardly be surprising. It is, after all, an industry that has been in decline, or at best maintaining status quo, since the end of World War II. Beginning at that time, railroads shifted from coal-fired steam locomotives to diesels, and coal furnaces in homes and industry were gradually replaced by oil and gas furnaces. Equipment replacement lagged in the coal mining industry, technological development slowed, and capital went elsewhere. Is it not asking too much, therefore, to expect an overnight renaissance?Even without FEA-ordered conversions, the domestic demand for coal will be growing rapidly — a 60 percent increase is anticipated from 1974 to 1980. Observers have noted that historically the coal mining industry has not shown itself capable of rapid expansion in production capacity.

A second concession, frequently requested by the coal industry and supported by FEA, is a relaxing of Clean Air Act standards to permit greater use of high-sulfur coals. It is curious, however, that the coal industry has never actively supported research on sulfur emission controls which would achieve the identical result without the adverse effect on public health.(Was the choice dictated by industry confidence that weakening the Clean Air Act would, when the time came, pose no problem?)

A third concession relates to the manufacturers of coal mining equipment. Since the 100 million tons per year by 1980 is to be produced in addition to the anticipated normal growth in coal demand, and since United States manufacturers of large coal mining and stripping equipment already have a three-year backlog, incentives may have to be legislated if all the required equipment is to be produced in time. These might take the form of loan guarantees, investment tax credits, or rebates on import fees. Priority allocations of needed materials may also prove necessary.¹⁰² Some observers have minimized the need for such aids, citing the certainty of more favorable market conditions (i.e., higher coal prices) in the years ahead.¹⁰³ However, industry spokesmen [5 ELR 50160] are not so optimistic.

Political and interest group pressures must be included as background to any discussion of concessions. Will the new, more environmentally-minded Congress be amenable to stepped-up coal extraction, or will it take its cue from the Project Independence Report¹⁰⁴ which leans away from coal for environmental reasons and opts instead for conservation and increased oil and gas production? Will oil and gas interests, which have now leased vast tracts of federal coal lands in anticipation of soaring coal demand, be successful in overcoming environmental objections to all-out coal development?¹⁰⁵ The fate of the ESECA conversion program rests on these considerations as much as on any factor discussed so far.

Should the coal supply not be adequate for conversion of all those plants which could feasibly do so, is FEA under any obligation to order changeovers at those plants where the environmental impact would be the least? The answer seems to be yes, but unforceably so. The Conference Report of ESECA expressly rejected¹⁰⁶ the House version which required that in the event of coal shortage, prohibition orders be issued to those plants where coal burning would have the least environmental effect. The aim was to avert "endless litigation." The Report went on to state:

This decision does not mean that the FEA should ignore such considerations. The conferees chose not to impose such a requirement, but rather intend to direct FEA to take account of such factors insofar as practicable after consultation with EPA.¹⁰⁷

This language clearly confers no actionable rights. Furthermore, it appears redundant with the environmental considerations already mandated by NEPA.

The coal availability question subsumes transportation as well as production. Again there are problems. If the percentage of coal transported by rail remains the same as in the past (66 percent), then some 19,000 additional hopper cars and 950 additional locomotives would be required to haul the coal needed to meet the President's 1980 goal. The capital costs for such a quantity of equipment would be vast — the FPC estimates $784 million.¹⁰⁸ This would be in addition to the $2.2 billion required for new cars and locomotives to handle the growth in non-conversion demand,¹⁰⁹ and the billions more needed to upgrade track conditions on seldorn-used branch lines. Given the current financial difficulties of the railroads, it seems unlikely that the additional capital could be secured, and again federal subsidies have been proposed. (Thus far, this analysis has described proposed subsidies to the coal companies, the coal equipment manufacturers, the utilities, and now, the railroads — all this to reduce oil importation that could easily be reduced by modest conservation efforts.) There is also a danger that in the reorganization of bankrupt eastern railroads, a large number of branch lines may be abandoned, reducing access of some coal fields to eastern markets.

Not all coal travels by rail, of course. In at least one state (Kentucky), FEA has pledged support for an enhanced roadbuilding program because of the sizeable amount of new coal production that will be moved by truck. The estimated total cost in this state alone: $1.4 billion.¹¹⁰ Data on conversion-necessitated investment in water carrier transportation is not available.¹¹¹

B. How Much Oil and Gas Will Actually Be Saved?

Predictions in this area span a wide range, and the uncertainties cannot presently be eliminated. The oil and gas savings realized will most critically depend upon the amount of coal available for converted plants to burn, and the environmental restrictions imposed. Assuming that ESECA is fully enforced (i.e., primary standard conditions, regional limitations, and significant risk standards), the savings might be those in the following prediction by FEA:¹¹²

	Generating	*2*Savings per year	Coal
	capacity		Gas	required
	converted	Oil	(billions of	per year
	(thousands	(millions	thousand-	(millions
	of	of	cubic-feet	of
	megawatts)	barrels)	units)	tons)
1975	1.5	2.5	6.5	.9
1977
low coal
supply	5.4	36.0	26.0	12.0
high coal
supply	6.4	46.0	28.0	14.0
1980
(full
compliance)	27.0	189.0	153.0	60.0

Predictions as to the amount of oil which the ESECA program will save have shown a distinct pattern over time.In the fall of 1974 when such predictions were first being made, the figure was a confident one million [5 ELR 50161] barrels a day by 1980.¹¹³ In the ESECA DES, issued January, 1975, the above table is given, the "189" figure translating to about a half million barrels per day. In the DES on the Administration's Energy Independence Act, issued March, 1975, the figure is down further to 300,000-366,000 barrels per day.¹¹⁴ This progression may simply indicate a growing realization by FEA of just how difficult ESECA will be to implement. One possibility which cannot be ruled out, however, is that the figures have been understated to strengthen the Administration's hand in seeking to have the environmental strictures of ESECA relaxed.

A potentially significant, but always overlooked, matter in the coal conversion debate is the problem of net energy. Net energy is a recently conceived notion,¹¹⁵ which starts with the proposition that it takes energy to produce energy. This innocent premise often leads one to eye-opening conclusions. In the context of coal conversion, the strip mining of western coal yields about 3 units of energy for each unit of energy invested, while Arab oil provides about 6.5 units of energy for each unit invested.¹¹⁶ Thus, in the net energy view, the oil-to-coal conversion program results in less energy being available for beneficial work, since more energy must be diverted into energy production. In this net energy/thermodynamic sense, conversion is seen as accomplishing a reduction in the efficiency of the extraction/transportation/generation energy system in order to increase the reliability of the fuel supply. The above-quoted projections of oil and gas savings are, therefore, overestimates. To calculate the oil/gas savings by simply adding up the generating capacity to be converted ignores the significant oil and gas subsidies which the conversion program will require to get underway, and, to a lesser extent, to continue thereafter. Such subsidies would include the large quantities of oil needed to generate the electricity for manufacturing 19,000 additional railroad cars and 950 additional locomotives, to manufacture the additional coal mining and processing equipment, and to fuel coal transport from western coal fields to eastern load centers.

V. Problems for Utilities

Assuming that a utility's external difficulties can be resolved (e.g., obtaining sufficient coal, or reducing emissions), it may still confront internal complications in converting to coal. These involve both economics and engineering.

A. Economic Problems

To the utilities, coal conversion adds insult to injury. Facing dismal financial prospects,¹¹⁷ the industry sees the ESECA program as a demand that it spend billions of dollars it does not have on capital equipment that yields no return. They cite the disarray in the securities market for utilities, many electric utility stocks selling below book value, as evidence that conversion capital would be difficult to raise. They cite narrow profit margins caused by rising fuel prices and state regulators unwilling to grant rate increases, as evidence of the impossibility of providing the necessary capital from their own profits. Added to these woes are the uncertainties surrounding future growth in electricity demand, and the spectre of excess generating capacity with its elevating effect on cost per kilowatt generated. Indeed, it is true that within the recent past some $20 billion of nuclear- and coal-fired plants have been cancelled or postponed,¹¹⁸ such plants being more capital intensive than oil-fired plants.

Though the utility's characterization is not without hyperbole, its essential gist may be accepted as true. And it is also indisputable that the costs of conversion will be high. The significant items in a powerplant's bill for switching from oil to coal are:

Conversion of boilers and ancillary coal handling
equipment	$7.50/KW
	capacity119
Pollution control equipment:
Scrubber retrofit (Cost varies widely on a plant-
by-plant basis. Industry estimates range from
$100 to $150 per KW of capacity; EPA
estimates from $50 to $70.120 As a mean, FEA
uses)	$80/KW
	capacity121
Electrostatic precipitator reconditioning
(Again, cost varies widely among individual
plants. As a crude estimate)	$20/KW
	capacity
Solid waste handling equipment and land for
holding ponds	$10/KW
	capacity122

[5 ELR 50162]

These figures may surely be discounted for larger capacity plants. Even for a small 100 MW powerplant, however, the $117.50/KW capacity total derivable from the above figures translates into a conversion cost of $11.75 million. Excessive conversion costs relative to the financial capabilities of the powerplant owner rule out a prohibition order under the "practicability" requirement of § 2(a)(1)(A) of ESECA.¹²³ It seems unlikely, however, that this requirement will prove an effective defense to most prohibition orders, since almost all powerplants are owned by sizeable, though not always prospering, utility companies.

In addition to authorizing prohibition orders for existing plants, ESECA provides that "any powerplant in the early planning process … be designed and constructed so as to be capable of using coal…."¹²⁴ FEA has defined "early planning process" as beginning:

10 years prior to the planned commencement of the sale or exchange of electric power by a powerplant and [terminating] with commencement of the driving of the foundation piling … for the main boiler of the powerplant.¹²⁵

This will, as a practical matter, preclude issuance of construction orders to powerplants scheduled for completion before 1978. Even for powerplants due to come on line in 1979 and 1980, however, the cost of redesigning and land acquisition may amount to $75 per KW of capacity.¹²⁶

For many powerplants, an ESECA prohibition order would be only the latest in a series of costly conversions. For a handful of plants, the back-and-forth pace has been almost frenetic. In the early 1970's a utility might have converted its powerplants from coal to oil in order to comply with local or state clean air laws. During the Arab embargo, this same utility likely converted back to coal under a state-granted SIP variance (some 25 east coast powerplants made this changeover). In recent months, as these variances have expired, some converted back to oil, now for the second time. (Thirteen of the above 25 powerplants made this switch.¹²⁷) Presently, however, all 13 of these powerplants are considered candidates for conversion orders by FEA. Finally, and this would be conversion number five, a plant might wish to convert back to oil in 1979, when FEA's authority to enforce its prohibition orders expires.¹²⁸

Conversion proponents will often be heard to say that while initial conversion costs may be high, at least the consumer can look forward to reduced electric bills after conversion, since coal is cheaper than oil. Administration sources have estimated this savings at as high as $6.3 million per day, assuming oil at $12/barrel and coal at $25/ton.¹²⁹ But this pay now/save later approach may be faulted on several grounds. First, the $25/ton figure may well be an underestimate. Since all coal to be used in converted and new plants will be "new" coal, and since existing convertible oil-fired plants will likely burn high-BTU coal lest they lose generating capacity, the delivered price of "new" coal seems more likely to be in the $35-$40/ton range, rather than $25/ton.¹³⁰ Allowing 23.5 million BTU for a ton of high-BTU coal, and 6.2 million BTU for a barrel of crude oil, the reader can confirm by simple arithmetic that coal will cost $1.60 per million BTUs, compared to $1.93 per million BTUs for oil. Once the larger operational costs involved in burning coal are factored in, the $ .33 per million BTU differential between burning oil and coal begins to assume borderline significance. True, the fuel cost differential is much larger if the utility can manage to burn low-BTU western coal, but the resultant loss in generating capacity combined with a utility's high fixed costs would considerably erode this cost advantage.

B. Engineering Problems

Section 2(a) of ESECA requires that before a prohibition order may issue, the FEA Administrator must find inter alia that the powerplant has (on the Act's date of enactment) the "capability and necessary plant equipment to burn coal." The usefulness of this provision to utilities resisting prohibition orders is not as great as its vague wording would suggest, due to clarifying legislative history. The Conference Report states:

It is not intended, however, to imply that the absence of any one or combination of these facilities or equipment would be grounds for concluding that the facility lacked capability or necessary plant equipment to burn coal. Nor is it intended that this condition be applied in an overly rigid or strict fashion….¹³¹

Since FEA has so far confined prohibition orders to plants that have burned coal in the past, this provision appears unlikely to present an obstacle. Nevertheless, the possibility cannot be ruled out, as even these plants may have problems deriving from differences between the coal available this time around and that for which the plant's equipment was originally designed.

Plants which once burned coal, but have since switched to oil, would confront some or all of the following engineering problems if long-term conversion were required:

a. Rebuilding or modifying of coal handling equipment, such as pulverizers; the more different the new coal from the original coal, the more extensive the alterations.

b. Acquisition of new coal storage facilities. May be considerable, [5 ELR 50163] since utilities prefer to keep a 45-90 days' supply of coal on hand at all times.

c. Rebuilding and upgrading of electrostatic precipitators to bring them into compliance with new emission-level standards.

d. Rebuilding of boilers to burn low-BTU, low-sulfur western coal.

e. Installation of scrubbers and solid waste disposal equipment.

VI. Proposals and Conclusions

Several propositions have emerged. ESECA was crisis legislation, and bears the hallmarks of the genre. It appeared that successful implementation of ESECA would require numerous collateral adjustments: amendments and exceptions to ease Clean Air Act requirements; federal subsidies for the mining industry, the mining equipment industry, the railroads, and the utilities; material allocation priorities and coal allocation priorities; and federal encroachment on the authority of state regulatory commissions. As for more direct consumer impacts, it appeared that the cost-benefit balance of coal conversion was a dubious one. Ambient pollution levels seem certain to increase, with attendant public health effects, and fuel cost savings, small to begin with, might be more than offset by conversion-necessitated capital investment. Finally, the significance of ESECA as a statement of legislative priorities was addressed: utilities are more likely to be inconvenienced than are automobile users.

There is, of course, a simple parry that makes much of the foregoing irrelevant. Once the assertion is made that whatever the difficulties, the conversion program's goal of lessening dependence on foreign oil must be achieved, the issue becomes purely subjective, hence unresolvable. The importance of the environmentalist's voice in the great conversion debate is that it offers a road out of the mire of subjectivity by posing a simple question. Suppose the energy autonomy which ESECA sets out to achieve could be brought about by a method having few, if any, of that program's drawbacks — the same return, for less cost. Would that not make more sense — objectively? This "road out" would involve a more moderately paced conversion program, resulting in lower capital costs, fewer market distortions, and less pollution, coupled with interim energy conservation measures. Lower capital costs, because more conversion would come from powerplants not yet constructed, where scrubbers could be designed into the plant, and expensive retrofits avoided. Fewer market distortions, because a stretched-out timetable would permit affected industries to supply more of the needed investment from private capital markets, rather than government subsidy. Less pollution, because the transition period of primary standard conditions and intermittent controls allowed by ESECA could be eliminated, and new supplies of low-sulfur coal developed.

On the conservation aspect, this article has singled out automobile users only because reduction of energy consumption in this sector could be achieved with little negative effect on the standard of living, and considerable positive effect on public health. But other avenues of conservation are also open, and are seldom explored. Several years ago, a study by the Office of Emergency Preparedness concluded that Americans could reduce their energy consumption by 30 percent with only minor adjustments in life-style.¹³² More recently, the Energy Policy Project concluded that a conservation-oriented energy policy could conserve the environment, avoid shortages, and simultaneously benefit the economy.¹³³ And once again, many of these conservation measures could eventually be eased, as this more gradual conversion made increasing inroads into utility oil consumption levels.

There are four ways, each progressively more drastic, in which the ESECA conversion program could be "gradualized." First, the present June 30, 1975, deadline for issuance of prohibition orders could be extended, but ESECA left otherwise intact. Second, the entire ESECA timetable, including deadlines for coming into compliance with SIP limits, and cut-off dates for enforcement of prohibition orders, could be shifted forward in time. Third, the approach suggested earlier could be used: shifting the timetable forward plus eliminating ESECA's transitional period in which SIP limits were relaxed. Fourth and most drastic, ESECA could be confined to plants not yet built or designed. This final route is drastic only in the extent to which it departs from the ESECA program we now have. One can well appreciate that its implementation would be the simplest of all, requiring only that future powerplants be compelled to burn coal.

In addition to gradualization, other modifications of ESECA may be suggested. An amendment is needed to require the FEA or EPA Administrator to consider site-specific impacts of conversion other than air pollution (e.g., land use), and to provide guidelines for the setting of standards. Such considerations now arise solely in the context of NEPA statement preparation, where the requirements are more procedural than substantive. This requirement could be simply implemented in the form of conditions attached to prohibition orders, and would avert subsequent enforcement actions under water, noise, or land use statutes. Second, better cost-benefit analyses are needed. Current analyses are severely deficient, often not including all the quantifiable costs, let alone less obviously numerical impacts.

With or without ESECA, the electric utilities will ultimately have to turn to coal-burning plants. ESECA simply attempts to rush this process, in a somewhat peremptory way. Vociferous objections are now being voiced in several quarters. To some extent, the enactment of ESECA reflected Congress' need in the aftermath [5 ELR 50164] of the Arab embargo to "do something," and the political vulnerability of the utilities relative to other energy-consuming sectors. Nevertheless, the national priority which ESECA embodies, that of energy self-sufficiency for the United States, must be respected. This article has suggested that alternative approaches may serve this priority as well, with less retrenchment of national environmental goals.

1. Pub. L. No. 93-319, 88 Stat. 246, 4 ELR 41231.

2. This is equivalent to 9.5 percent of current daily consumption in the United States.

3. H.R. Rep. No. 1085, 93rd Cong., 2d Sess. (1974) (hereinafter cited as Conference Report), reported in 1974 U.S. Cong. & Adm. News 3315.

4. Federal Power Commission, A Staff Report on the Potential for Conversion of Oil-fired and Gas-fired Electric Generating Units to the Use of Coal (1973).

5. Pub. L. No. 93-28.

6. Pub. L. No. 93-159, 87 Stat. 627.

7. H.R. Rep. No. 531, 93d Cong., 1st Sess. (1973), reported in 1973 U.S. Cong. & Adm. News 2595.

8. Dec. 6, 1973 (unpublished).

9. In Train v. Natural Resources Defense Council, 5 ELR 20264 (U.S. 1975), the Supreme Court held that the revision mechanism of § 110(a)(3) of the Clean Air Act permits a state to grant individual variances from generally applicable emission standards. The only limitation is that the variance must not cause the SIP to violate § 110(a)(2), the requirements applicable to the original SIP.

10. For a fuller discussion of the legislative history of ESECA, see H.R. Rep. No. 1013, 93d Cong., 2d Sess. (1974), reported in 1974 U.S. Cong. & Adm. News 3281 (hereinafter cited as House Report). See also Ayres, Enforcement of Air Pollution Controls on Stationary Sources under the Clean Air Amendments of 1970, 4 Ecology L.Q. 441 (1975) (hereinafter cited as Ayres article). For a convenient listing of the six relevant committee reports, see Pedersen, Coal Conversion and Air Pollution: What the Energy Supply and Environmental Coordination Act of 1974 Provides, 4 ELR 50101, n. 5 (1974) (hereinafter cited as Pedersen article).

11. FEA was created by the Federal Energy Administration Act of 1974, Pub. L. 93-275, to take over the authority exercised by FEO.

12. ESECA § 2(a).

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

(1) 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, and (2) to provide requirements for reports respecting energy resources.

14. This ESECA-granted authority supplements FEA regulations already promulgated under the Emergency Petroleum Allocation Act. 10 C.F.R. § 215.3(a) prohibits the sale of any petroleum product to industrial and utility powerplants that were not using a petroleum product fuel on December 7, 1973. 10 C.F.R. § 215.3(b) precludes disproportionate increases in the use of coal over oil in powerplants burning both. Exceptions to either regulation are authorized by 10 C.F.R. § 215.6, and include instances where conversion to oil is necessary to meet primary ambient air standards and suitable non-petroleum fuel is not available.

15. The FEA Administrator may not, however, order the powerplant to actually burn coal.

16. ESECA is not clear on what the effect of this requirement would be where the compliance date extension suspends a state or local emission standard which is stricter than the otherwise applicable SIP limit, but is not incorporated into the SIP. By its literal terms, the condition only requires that the plant return only to the laxer SIP limit. This interpretation has been adopted by EPA regulations implementing its responsibilities under ESECA. 40 Fed. Reg. 18438 (Apr. 28, 1975), 40 C.F.R. § 55.04(a)(2)(i)(E), § 55.04(a)(2)(ii)(E). Nevertheless, the regulations require the powerplant to submit a secondary compliance schedule containing "incremental dates" for coming into compliance with such non-SIP standards. Id., § 55.04(a)(3).

17. More precisely, the compliance date extension does not become effective until after the actual conversion. Id., § 55.04(p).

18. Mandated by § 107 of the Clean Air Act, 42 U.S.C. § 1857c-2. These are the effective units of administration under that legislation.

19. One precursor of ESECA during the embargo provided authority for ordering oil-to-coal conversion at any plant capable of it, regardless of the effect on air pollution.

20. House Report, supra n. 10, reported in 1974 U.S. Cong. & Adm. News 3283.

21. Pub. L. No. 93-159, 87 Stat. 627.

22. ESECA § 7(c)(2).

23. Gulf Oil Corp. v. Simon, 502 F.2d 1154 (Temp. Em. Ct. App. 1974). The court, however, reserved judgment on "whether or when circumstances may be such that some other regulation proposed by the Federal Energy Office must be … attended by an environmental impact statement." Id. at 1157.

24. ESECA § 7(c)(1). Senator Muskie stated during the floor discussion on ESECA, that exempting actions under the Clean Air Act from NEPA would "… end the effort of those who would use NEPA as a mechanism to compromise the statutory mandate for clean air." 120 Cong. Rec. S-10407 (daily ed. June 12, 1974).

25. For a discussion of the cases see Anderson, The National Environmental Policy Act, in Federal Environmental Law 238, 261 (1974). EPA's major position statement on NEPA applicability, 39 Fed. Reg. 16186 (May 7, 1974), adopts the judicial interpretation. Current EPA policy does, however, call for voluntary preparation of environmental impact, statements for its most significant regulatory actions, though the agency does not regard its coal conversion functions among these. 39 Fed. Reg. 37419 (Oct. 21, 1974), ELR 46174.

26. Conference Report, supra n. 3, reported in 1974 U.S. Cong. & Adm. News 3307.

27. Id.

28. "… when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process" 363 U.S. 420, 442 (1960) (emphasis added).

29. 10 Weekly Comp. of Presidential Documents 1239, 1241.

30. Federal Power Commission, Supplement to Preliminary Report of the Technical Advisory Committee on Fuels on the Fuel Oil Conservation Targets for the Electric Utility Industry 11 (Oct. 30, 1974).

31. Note 29, supra.

32. Federal Power Commission, Preliminary Report of the Technical Advisory Committee on Fuels on the Fuel Oil Conservation Targets for the Electric Utility Industry 6 (Oct. 18, 1974) (hereinafter cited as FPC Preliminary Report).

33. Federal Energy Administration, Final Environmental Statement on Coal Conversion Program, Table D-1 (1975) (hereinafter cited as FES on Coal Conversion).

34. 40 Fed. Reg. 28430 (July 3, 1975).

35. ESECA § 2(f)(1).

36. 40 Fed. Reg. 20466 (May 9, 1975).

37. 40 Fed. Reg. 28436 (July 3, 1975).

38. 40 Fed. Reg. 20488 (May 9, 1975), 10 C.F.R. § 305.9.

39. Several courts have asserted that the function of a NEPA statement is to gather in one place a discussion of the environmental impacts of alternative courses of action. See the leading case of Natural Resources Defense Council v. Morton, 458 F.2d 827, 834, 2 ELR 20029, 20032 (D.C. Cir. 1972).

40. 40 Fed. Reg. 20469 (May 9, 1975), 10 C.F.R. § 303.30 et seq.

41. Federal Energy Administration, Draft Environmental Impact Statement on Coal Conversion 28 (1975).

42. FES on Coal Conversion, supra n. 33, IV-1 (1975).

43. President's State of the Union Message, 11 Weekly Comp. of Presidential Documents 50 (Jan. 20, 1975).

44. 121 Cong. Rec. S1431 (daily ed. Feb. 5, 1975); 121 Cong. Rec. H536 (daily ed. Feb. 4, 1975).

45. Ayres article, supra n. 10, at 443.

46. Id.

47. Environmental Protection Agency, National Strategy for Control of Sulfur Oxides from Electric Power Plants 2 (July 10, 1974).

48. Id.

49. National Strategy for Control of Sulfur Oxides from Electric Power Plants, supra n. 47, at 5. Nor can the incidence of these health effects be considered marginal. A report to the FPC concludes that if clean air standards are not met:

[t]he number of excess or premature deaths may reach over 6,000 per year by 1980 and the total excess between 1975 and 1980 could exceed 25,000. Each year an average elderly person will experience an unnecessary 5 to 10 days when his chronic heart and lung disorders will be perceptibly aggravated…. [T]he excess number of asthma attacks would be 6 to 10 million each year and could total over 50 million during the years 1975 through 1980. Each year otherwise healthy children would experience 400 to 900 thousand more common but severe acute respiratory disorders like croup, acute bronchitis and pneumonia…. If standards are not met, adults would be burdened more frequently with persistent chronic respiratory disease symptoms, … by 1980 an excess of over 1,500,000 adults.

Technical Advisory Comm. on Conservation of Energy, Federal Power Commission, Power Generation: Conservation, Health, and Fuel Supply 17-18 (1974) (known as the Chapman Report).

50. Id.

51. Likens and Bormann, Acid Rain: A Serious Regional Environmental Problem, 184 Science 1176 (June 14, 1974).

52. See Ayres article, supra n. 10, at 452-453. EPA has concluded that substantial reductions in SO₂ emissions will be required over large areas to reduce sulfate concentrations to acceptable levels. National Strategy for Control of Sulfur Oxides from Electric Power Plants, supra n. 47, at 5.

53. FES on Coal Conversion, supra n. 33, at IV-92.

54. Id., at IV-43.

55. Such revisions would benefit powerplants that converted to coal burning voluntarily, i.e., independent of any prohibition order, and plants converted under prohibition orders that did not require compliance date extensions. Somewhat anomalously in light of the policy embodied in § 4(a), ESECA requires that powerplants with compliance date extensions ultimately meet the SIP limits in effect when the compliance schedule was submitted, not the limits in subsequent revisions of the SIP. The reasons for this distinction are not clear.

56. Opening statement of Russell Train, EPA Press Conference on Air Quality Progress, May 30, 1975, at 7.

57. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), aff'd 2 ELR 20656 (D.C. Cir. 1972), aff'd by equally divided court, sub non. Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973).

58. 39 Fed. Reg. 42510 (Dec. 5, 1974).

59. Conference Report, supra n. 3, reported in 1974 U.S. Cong. & Adm. News 3312. The actual statutory language provides that primary standard conditions may include "emission limitations, requirements respecting pollution characteristics of coal, or other enforceable measures for control of emissions. …" § 119(d)(2)(A) of the Clean Air Act, as amended by ESECA. It is the enforceability requirement that may pose a barrier to the use of intermittent controls at specific powerplants. During the floor debate on ESECA, Senator Muskie stated:

It may be a non sequitur to suggest that intermittent control strategies are enforceable by EPA. An analysis of EPA's monitoring capability suggests that monitoring is extremely limited….

120 Cong. Rec. S10409 (daily ed., June 12, 1974).

60. § 119(d)(3)(B)(iii) of the Clean Air Act, added by § 3 of ESECA.

61. E.g., Conference Report, supra n. 3, reported in 1974 U.S. Cong. & Adm. News 3314.

62. Clean Air Act § 109, 42 U.S.C. § 1857c-4(b)(1), ELR 41224.

63. Clean Air Act § 303, 42 U.S.C. § 1857h-1, ELR 41224. Because ESECA expressly affirms this emergency powers provision as supplemental to the EPA Administrator's authority under the significant risk provision, a comparison seems in order. Clean Air Act § 119(h), added by ESECA. There are several ways in which these two grants of authority differ: (a) danger level required to trigger (discussed in text, supra); (b) certainty level required to trigger ("may" cause a significant risk; "is" an imminent and substantial danger); (c) resort to judicial enforcement (not required under significant risk; required under emergency powers); and (d) effect of triggering (under significant risk, prohibition order and all compliance date extensions revoked; under emergency powers, only the offending pollutant is curtailed.) It can reasonably be anticipated that the emergency powers provision, directed as it is at short-lived pollution emergencies, will be invoked far less often than the significant-risk power.

64. ESECA does not expressly state this dependence of compliance date extensions on prohibition order validity (indeed, the Act does not discuss the consequences of prohibition order revocation at all). The dependence is, however, suggested by negative implication in § 119(c)(1)(A) of the Clean Air Act, which provides that compliance date extensions shall issue to any powerplant "which is prohibited from using petroleum products or natural gas by reason of an order which is in effect. …" Thus, revocation of a prohibition order would result in the powerplant having to once again comply with the applicable SIP limitation. See Pedersen article, supra n. 10, at 50105.

65. Statement of Jack Young (Edison Electric Institute), Hearings on the Draft Environmental Impact Statement on the Coal Conversion Program, at 8 (1975) (hereinafter cited as DES Hearings).

66. Statement of George Freeman (VEPCO), DES Hearings, supra n. 65, at 20 (1975). EPA has thus far not committed itself to the procedural modeby which it will implement the significant risk provision, i.e., by adjudicative hearing or administrative fiat.

67. Federal Energy Administration, Draft Environmental Impact Statement on Energy Independence Act of 1975 and Related Tax Proposals, 7-35 (1975). The emission figures quoted refer to converted plants only.

68. See, e.g., Ayres article, supra n. 10, at 448 (n. 19).

69. Conference Report, supra n. 3, reported in 1974 U.S. Cong. & Adm. News 3306. See also, 120 Cong. Rec. S-10408 (daily ed., June 12, 1974).

70. 42 U.S.C. § 1857h-2. See Conference Report, supra n. 3, reported in 1974 U.S. Cong. & Adm. News 3313.

71. ESECA § 2(d). The FEA program implementing this coal allocation authority is a relatively modest one, reflecting the realities of limited coal fungibility and inflexible transportation systems.40 Fed. Reg. 28420 (July 3, 1975).

72. Favoring scrubbers are EPA, most state and local authorities, environmentalists, and the scrubber manufacturers. Following some early equivocation, EPA has for the past year supported scrubbers unconditionally as "sufficiently demonstrated on full scale units to warrant widespread utility industry commitments for use." National Strategy for Control of Sulfur Oxides from Electric Power Plants, supra n. 47, at 10. See also the following EPA reports: Flue Gas Desulfurization, Installations and Operations (1974); and Report to Congress on Control of Sulfur Oxides (1975). The latter document was mandated by § 119(k) of the Clean Air Act (added by ESECA).

Favoring intermittent controls (with tall stacks) are the Administration, TVA, and most of the electric utilities. The intermittent controls system is argued to be fully adequate to ensure compliance with national ambient air standards, while scrubbers are denounced as unreliable and prohibitively expensive.

73. The ESECA Conference Report, after expressing concern about the conflicting information on presently available scrubbers, went on to comment:

The conferees believed, however, that time remains for these systems to be improved prior to the time binding commitments would have to be made to procure such systems under § 119 of the Clean Air Act.

Supra, n. 3, reported in 1974 U.S. Cong. & Adm. News 3317.

74. FES on Coal Conversion, supra n. 33, at IV-7.

75. Environmental Protection Agency, Report to Congress on Control of Sulfur Oxides 30 (1975).

76. Interview with George Gakner, Division of Power Surveys and Analyses, Federal Power Commission.

77. FES on Coal Conversion, supra n. 33, at IV-19.

78. Id.

79. Id.

80. Conference Report, supra n. 3, reported in 1974 U.S. Cong. & Adm. News 3316.

81. Draft Environmental Impact Statement on Energy Independence Act of 1975 and Related Tax Proposals, supra n. 67, at 7-32.

82. Recall that a construction order may compel a plant in the early planning process only to design for burning coal, not to actually use the fuel. The 1985 projection in the text is based on the assumption, likely a safe one, that all plants receiving construction orders will in fact burn coal.

83. FES on Coal Conversion, supra n. 33, Table B-19. These figures are based on full implementation of ESECA, i.e., the strictes of the four FEA scenarios discussed earlier.

84. Attachment, letter of Russell Train to Edmund Muskie, May 12, 1975, at 3. However, only four of the 32 prohibition orders issued by FEA went to powerplants in such AQCR's.

85. The water used to transport the ash from the furnace to the pond — between 1,000 and 40,000 gallons per ton of ash conveyed — is often allowed to overflow the ash pond and enter adjacent bodies of water.

86. Exposure of coal to air and moisture results in the formation of sulfuric acid, which washes out during rains as coal pile runoff.

87. 40 Fed. Reg. 7095 (Feb. 19, 1975), 40 C.F.R. Part 423.

88. 33 U.S.C. §§ 1251 et seq., ELR 41101.

89. Should coal conversion necessitate the mining of 100 million additional tons of coal per year, as the President's goal would require, the additional work force is estimated at 12,855 in underground mines and 7,265 in strip mines. FPC Preliminary Report, supra n. 32, at 8. The DES on the Energy Independence Act of 1975, however, dismisses the boom town phenomenon in one sentence: "… comprehensive planning will help to avoid these conditions." Supra n. 67, at 6-25.

90. 345 I.C.C. 71, 364 (Ex parte no. 270, Sub-No. 4) (1974).

91. Wash. Post, Mar. 15, 1975, at C8.

92. H.R. 1863, 121 Cong. Rec. H296 (daily ed., Jan. 23, 1975). H.R. 2220, 2553, and 2896 are companion bills.

93. The most advanced such project is a 1,030-mile line linking Wyoming mines to electric generating plants in Arkansas, Louisiana, and Mississippi.

94. FPC Preliminary Report, supra n. 32, at 7.

95. Author's calculations.

96. For a fuller discussion, see Phillips, Utility Executives Attack Ford Coal Conversion Proposal, 6 Nat'l J. Rep. 1867 (Dec. 14, 1974).

97. See, e.g., advertisement, 91 Fortune 29 (Mar. 1975).

98. Joseph P. Brennan, vice-president of the National Coal Association, is reported as having said:

We can add 100 million tons by 1980 on top of the 900 million tons we'll be producing anyway to meet the normal demand for coal. But if we don't get a positive program — and by that I mean a whole laundry list of proposed legislation — we won't attract the capital we'll need….

In Phillips, FPC Panel Doubts Availability of Coal for Utility Conversions, 6 Nat'l J. Rep. 1805, 1808 (Nov. 30, 1974). See also, Bagge, Coal and Clean Air: A Case for Reconciliation, 4 Ecology L. Q. 479 (1975).

99. FPC Preliminary Report, supra n. 32, at 7.

100. Wash. Post. Mar. 25, 1975, at A1.

101. Statement of George Freeman (VEPCO), DES Hearings, supra n. 65, at 22.

102. FPC Preliminary Report, supra n. 32, at 7.

103. In a recent report on coal conversion, an interagency task force assumed that "the coal industry can meet all contractual demand in the post-1978 period, and that market conditions will have reduced the impact of current restrictions in transportation, labor, equipment and capital…" Federal Energy Administration, Utility Oil Savings Study-Final Report, at 10 (1975).

104. Federal Energy Administration (1974).

105. For a fuller discussion, see Phillips, Environmentalists, Utilities, Argue Over East, West Mining, 6 Nat'l J. Rep. 1014 (July 6, 1974).

106. Conference Report, supra n. 3, reported in 1974 U.S. Cong. & Adm. News 3308.

107. Id.

108. FPC Preliminary Report, supra n. 32, at 8. One reason that large numbers of new cars and locomotives will be required is that conversion needs will likely be supplied from western coal reserves, far from eastern load centers.

109. See discussion of the recent I.C.C. study, supra, text accompanying n. 90 and 91.

110. Statement of L. J. Hollenbach (Nat'l Ass'n of Counties), DES Hearings, supra n. 65, at 70.

111. See generally, 345 I.C.C. 71, 94 (Ex parte no. 270, Sub-No. 4) (1974).

112. FES on Coal Conversion, supra n. 33, Table IV-7.

113. The goal set at the Oct. 24, 1974 meeting of the Energy Resources Council.

114. Draft Environmental Impact Statement on Energy Independence Act of 1975 and Related Tax Proposals, supra n. 67, at 6-13.

115. Net energy analysis as a formal discipline is largely the conception of one man, Dr. Howard Odum of the Department of Environmental Engineering Sciences, University of Florida. It is the natural outgrowth of applying the techniques of systems analysis to energy systems.

116. Robertson, Systems of Energy and the Energy of Systems, 60 Sierra Club Bull. 20, 23 (Mar. 1975). See also Ballentine, A Research Proposal for a Net Energy Analysis of Surface Mining, Electrical Power Production, and Coal Gasification, University of Florida (unpublished 1974).

117. For an excellent general discussion, see Loomis, For the Utilities, It's a Fight for Survival, 91 Fortune, No. 3, at 97 (Mar. 1975).

118. Federal Energy Administration, Utility Oil Savings Study — Final Report 17 (1975).

119. Id., Table 6.

120. Environmental Protection Agency, National Strategy for Control of Sulfur Oxides from Electric Power Plants 10 (1974).

121. Draft Environmental Impact Statement on Energy Independence Act of 1975, supra n. 67, at 6-29.

122. The DES on the Energy Independence Act gives $7 per KW of capacity as the estimated cost of new solid waste handling equipment for FGD alone. Three dollars per KW of capacity has been added here for upgrading of equipment to handle fly ash and bottom ash.

123. 40 Fed. Reg. 20487 (May 9, 1975), 10 C.F.R. § 305.3(b)(2)(i). See Conference Report, supra n. 3, reported in 1974 U.S. Cong. & Adm. News 3306.

124. ESECA § 2(c).

125. 40 Fed. Reg. 20466 (May 9, 1975), 10 C.F.R. § 303.2.

126. FPC Preliminary Report, supra n. 32, at 10.

127. Wash. Post, Apr. 5, 1975, at A3.

128. ESECA § 2(f)(2).

129. Fact Sheet accompanying President's Economic Message to Congress, Oct. 8, 1974.

130. FPC Preliminary Report, supra n. 32, at 8.

131. Conference Report, supra n. 3, reported in 1974 U.S. Cong. & Adm. News 3305.

132. Office of Emergency Preparedness, The Potential for Energy Conservation — A Staff Study (1972).

133. Energy Policy Project of the Ford Foundation, A Time to Choose: America's Energy Future, at 325-326 (1974).

5 ELR 50146 | Environmental Law Reporter | copyright © 1975 | All rights reserved