1. 2 3 H.R. 1486 15 "AUTHORITY TO EXEMPT "SEC. 413. In order to avoid excessive burdens upon persons engaged in bulk power supply, upon regional coun4 cils and upon the public, the Commission may by rule exempt 5 from any requirement of this part or any rule or regulation 6 prescribed thereunder, any facilities, activities, or persons, 7 whenever it determines, after public notice and opportunity 8 for hearing, that such exemption is necessary and appropriate 9 to carry out the objectives of this part. The Commission 10 may attach conditions to any exemption and may by order, 11 after public notice and opportunity for hearing, revoke any 12 such exemption. 219 $413 FPA ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, Hon. HARLEY O. STAGGERS, 1. Section 404 (a) of H.R. 6970 (page 36 of Staff Document of April 15, 1971) authorizes the Federal Power Commission to create a special panel if delay in in the construction of a new bulk power facility results from "a dispute over the significance of environmental factors [which] is likely to jeopardize the provision of an adequate and reliable bulk power supply. . . ." The failure of state agencies to act upon a proposal may occur for a variety of reasons. It may be difficult to determine that the delay is due to "a dispute over the significance of environmental factors." This language introduces a question of causation or motivation that may be difficult to determine. Interests that desire to delay the construction of a new facility may oppose the facility on non-environmental grounds. In any event, the requirement that the delay arise from a dispute over the significance of environmental factors may prove troublesome. Any failure to act on the part of state agencies that jeopardizes the provision of an adequate and reliable bulk power supply should be sufficient to trigger the creation of a special panel. 2. Section 404 (b) (1) of H.R. 6970 (page 36 of Staff Document) provides that the President of the National Academy of Sciences shall appoint the third member of the panel if the other two members are unable to agree on the selection of the third member. The National Academy of Sciences properly resists involvement in controversial regulatory matters which do not involve a neutral scientific judgment. The appointment power should probably be placed elsewhere. 3. Section 404 (c) (pages 37-38 of Staff Document) authorizes the special panel to balance the need for power against environmental concerns and to select the best proposal among the available alternatives. The procedures to be followed by the panel are left unspecified, but the intent apparently is to allow the panel great discretion concerning the procedure to be used. If that is intended, it would be desirable to include specific language that would authorize the panel to investigate and study the various proposals by any means it thought appropriate, including personal inspection, staff investigation, public speech-making hearings and evidentiary hearings. To foreclose a possible judicial view that a decision would be required to be made upon the record in an evidentiary hearing, it might be desirable to provide that the special panel is to make a judgment which is legislative in character and is not restricted to the materials submitted in public or evidentiary hearings. The panel should be required to keep minutes of its meetings and to include in its report a statement of the procedures it has followed. It would also be required to make available to the public any comments it has received or the transcripts of any evidentiary hearings. This material should also accompany the panel's report of its reasons for selecting one proposal and rejecting others. 4. Section 404 (d) provides for judicial review of a panel determination (pages 38-39 of Staff Document). Section 404(e) (page 40) provides that a panel decision becomes final only after any judicial review proceeding has been terminated. Since the panel procedure can never be invoked except when substantial delay has resulted in the processing of a proposal for a new facility, in every case there will be someone who will benefit by a period of further delay. The expense and effort of a review proceeding is very small. Thus it may be predicted that in every case in which there is a panel determination, a judicial review proceeding will be initiated. The time involved in obtaining judicial review by a Court of Appeals is 9 months to a year; a further period of 3 to 6 months is involved in the filing of a certiorari application even if it is not granted. If it is granted, another 6 months would be involved. It is undesirable to delay the construction of a new facility during the pendency of every review proceeding. Interests that oppose the construction of a new facility will have a strong temptation to file a frivolous review proceeding merely btain 12 to 24 months' delay. The problem may be dealt with by adding two provisions to Section 404(d). The first would be an addition to 404(d) (1) which provided that the panel determination went into effect 60 days after the decision was rendered regardless of whether or not a review proceeding was filed in the meantime, unless the court in which a review proceeding was filed stayed the effectiveness of the panel decision pending the review proceeding. It should also be provided that a stay should not be granted unless (1) the petitioners would suffer irreparable harm and (2) the reviewing court believes that the review proceeding is likely to be successful on its merits. See L.L. Jaffe, Judicial Control of Administrative Action, Chapter 18 (1965); 5 U.S.C. § 705; 28 U.S.C. § 2349. In addition, it would be desirable to add a new provision as Section 404(d) (4) which would provide for the assessment of costs and attorneys' fees on a petitioner who had filed a review proceeding which the court determined to be either frivolous or filed for purposes of delay. Although it is unlikely that a court would assess these costs, its mere existence is likely to deter frivolous review proceedings. 5. The questions open on judicial review of a panel decision under Section 404(d) (2) would appear to include (1) whether the Federal Power Commission had made a finding at the outset that failure to construct the facility resulted from a dispute over the significance of environmental factors; (2) whether the panel had been properly constituted and had followed procedures specified in the Act; (3) whether the panel had made the findings required by paragraph 104(c); and (4) whether the panel had acted in an arbitrary and capricious manner in failing to make an adequate evaluation of any proposal. Since the record of an evidentiary hearing is unlikely to be available, it is not clear how the reviewing court would determine whether two of the required findings have been made: the Commission's finding that the delay resulted from "a dispute over the significance of environmental factors" and the panel's finding that "the proponent has made a bona fide effort to obtain approval by each public agency whose approval is required. . . ." Both of these findings involve a matter of causation or motivation of the kind normally exposed to a trial-type determination. If a record compiled after an evidentiary hearing is not available, it is not clear how the court could determine whether or not these findings had been satisfied. A reviewing court, if these matters were questioned, might desire to remand the case to the panel or to the Commission for an evidentiary hearing on these questions. This possibility could be foreclosed by language which made these two findings of motivation subject to only limited judicial review. This could be done by adding language to Section 404 (e) (2) which made it clear that the arbitrary and capricious standard applies to the findings required to be made by the Commission and the panel. The Administrative Conference has not had an opportunity as a body to consider the matters which I have discussed; hence, the foregoing comments express my personal views. Moreover, my comments have been prepared very quickly and I may have further comments at a later time. If I can be of further assistance, please let me know. ROGER C. CRAMTON, Chairman. Hon. HARLEY O. STAGGERS, DEPARTMENT OF DEFENSE, OFFICE OF THE GENERAL COUNSEL, Chairman, Committee on Interstate and Foreign Commerce, DEAR MR. CHAIRMAN: Reference is made to your request for the views of the Department of Defense with respect to H.R. 7045, 92d Congress, a bill "To strengthen Federal-State cooperation to assure protection of environmental values while facilitating construction of needed electric power supply facilities, and for other purposes." The purpose of the bill is stated in the title. The Department of Defense defers to those agencies more directly concerned as to the merits of the bill. The Office of Management and Budget advised that, from the standpoint of the Administration's program, there is no objection to the submission of this report. Sincerely, L. NIEDERLEHNER For J. FRED BUZHARDT. Hon. HARLEY O. STAGGERS, ENVIRONMENTAL PROTECTION AGENCY, Chairman, Committee on Interstate and Foreign Commerce, DEAR MR. CHAIRMAN: This is in response to your Committee's request for the comments of the Environmental Protection Agency on the following bills relating to power generation and transmission: H.R. 605, H.R. 1079, H.R. 3838, H.R. 5277, H.R. 6970, H.R. 6971, H.R. 6972, and H.R. 7045. We shall confine our comments to those aspects of the bills which may potentially affect the environment. H.R. 5277 H.R. 5277, as proposed by the Administration, would provide for expeditious coordination of planning and construction of power supply facilities, and would ensure that environmental factors are considered at the earliest stages of planning as well as other phases in construction. The bill would set forth a national policy identifying a need for construction of adequate electric power supply facilities, with full consideration at all stages of the environmental effects of such facilities. Appropriate State, regional and Federal authorities would be authorized to act expeditiously in coordinating reviews of planned facilities, and in certifying such facilities. States would be authorized to designate and constitute, according to Federal guidelines, State or regional bodies for the certification of bulk power supply facilities, defined as generating plants 300,000 kilowatts or more in capacity, and transmission lines for operation at 230 kilovolts or more. If the State failed within twenty-four months to designate or appropriately constitute such a certifying body, the Federal certifying agency designated by the President would exercise certification authority. In order to exercise certification authority the State or interstate agency would be required to obtain a certificate of qualification of procedure from the Federal certifying agency. After twenty-four months from the date of enactment of H.R. 5277, penalties of up to $10,000 per day, or imprisonment for intentional violations, would be provided for the construction or operation of bulk power supply facilities without a certificate of site and facility issued by the appropriate certifying agency. Private power utilities would require certificates from a State or regional body, if such a body were established. Federal agencies or corporations would require certificates only from the Federal certifying body. Where a State failed to constitute a certifying agency within two years after enactment, the Federal certifying agency would exercise that authority. If a State agency failed to act "upon a timely or conclusive basis" with respect to an application within two years after submission, the applicant would apply to the Federal certifying body, which would be authorized to issue a certificate of site and facility on the basis of Federal standards only. Judicial review would be provided for all orders or decisions of certifying bodies. State and Federal certifying bodies would be required to consider whether the proposed site or route would "unduly impair environmental values and will be reasonably necessary to meet electric power needs," and to grant or deny certificates according to Federal guidelines for applying that standard. They would be required to consider all environmental values, including the impact on adjacent States, and to hold public hearings after timely notice on all applications for certificates of site and facility. Environmental impact statements pursuant to section 102 (2) (C) of the National Environmental Policy Act of 1969 would not be required where the certifying agency followed a "substantially comparable procedure." The President would be required to publish guidelines which would provide criteria for evaluating the relative effects of various proposed sites and facilities on the environment, criteria for public participation, procedures for the formation of regional certifying bodies, procedures for consideration of multistate impacts, and staffing requirements for State and regional certifying bodies. Where a certificate of site and facility had been issued, and the holder was unable to obtain rights-of-way or other property, he would be authorized to obtain such property by eminent domain through an action in the appropriate United States district court. Advance congressional consent to interstate compacts relating to cooperation in certifying sites and facilities would be given, and such compacts and cooperawould be encouraged. We recommend the enactment of H.R. 5277. Adequate legislation to provide for the construction of needed power generating facilities at a minimum cost to the environment must provide effective legal controls over the construction of facilities which could have a serious effect on the environment, including timely consideration of plans for such facilities. In this regard, H.R. 5277 contains the following crucial elements: 1. Long range planning is provided for, including the publication of general plans for system expansion ten years in advance. 2. Public hearings on specific plant sites identified five years in advance of construction. 3. A single decisionmaking body would be created, which would review and approve or disapprove construction of facilities after considering environmental effects at a given site. 4. Application for certificates of site and facility would be made two years prior to construction, allowing adequate time for review and public participation. 5. Pursuant to detailed Federal guidelines for certifying agencies, consideration would be given to all applicable air and water quality standards before construction would be permitted, ensuring consideration of environmental factors at the earliest possible stage. We believe that H.R. 5277 will assist in the discharge of EPA's responsibilities by assuring that all applicable requirements developed pursuant to Federal law are met by proposed power plants, including both standards and implementation plans under the Clean Air Act and the Federal Water Pollution Control Act. We interpret H.R. 5277 to provide that the determination of compliance with such requirements should be made by the appropriate State or interstate environmental protection agency, and such determination will be final, not subject to compromise by decision of the certifying agency, even though procedurally these determinations will be integrated into a one-stop decision at the State level. H.R. 1079 H.R. 1079, the "Electric Power Plant Siting Act of 1971," would amend the Federal Power Act to require the Federal Power Commission, within two years and ninety days after enactment, to conduct a national power plant siting study and to submit to Congress a comprehensive national power plant siting plan. The study would include an evaluation for each site of the geological, economic, ecological, recreational, and other factors relating to siting, and the Commission Would be required to evaluate the hazards to public health and safety. The siting plan would include a summary of the results of the study, a report by region of those sites which would best secure the purposes of the Act to insure availability of abundant low-cost power and to protect environmental assets, recommendations on means of acquiring necessary lands and securing the cooperation of electric utilities in carrying out the plan, and the role the Federal government should play in carrying out those recommendations. Before the submission of the national power plant siting plan, the Atomic Energy Commission would be forbidden to issue a license for the utilization of nuclear energy for power generation unless it determined that there were no economically feasible alternative for producing or obtaining the required power. After the submission of the plan, the Commission would be required to issue licenses only if consistent with the plan and maximum utilization of the power potential on the site. We have the following comments with respect to H.R. 1079: 1. We believe that H.R. 5277, as proposed by the Administration, will provide a more comprehensive and effective method of dealing with the problems of power plant siting. Since the purpose of H.R. 1079 is simply to provide for a study by the Federal Power Commission, we do not consider it to be an adequate solution at this time. Legislation must provide institutional arrangements to decide power plant siting issues. 2. In addition, the restriction H.R. 1079 places on the licensing powers of the AEC are, in our opinion, unwarranted. Legislation designed to insure fair and reasonable consideration of power generation means and the quality of proposed sites should not begin by singling out a particular source for discriminatory treatment. Power generating means other than nuclear do not necessarily result in a less severe impact on the environment. H.R. 3838 (also H.R. 605) H.R. 3838 would set forth a congressional finding that there is a need for more reliable electric power, consistent with the preservation and enhancement of the environment. |