41

[Excerpt from Congressional Record, Nov. 2, 1971]

FLOOR AMENDMENT TO S. 2770

Mr. BAKER. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

"On page 183, line 2, insert the following new subsection:

"(d) The requirements of the National Environmental Policy Act of 1969 (83 Stat. 852) as to water quality considerations shall be deemed to be satisfied—

"(1) by certification pursuant to section 401 of this Act with respect to any federal license or permit for the construction of any activity which may result in any discharge into the navigable waters of the United States; and

"(2) by certification pursuant to section 401 of this Act and the issuance of a permit pursuant to section 13 of the Act of March 10, 1899, or section 402 of this Act with respect to any federal license or permit for the operation of any activity which may result in any discharge into the navigable waters of the United States.'" Mr. PASTORE. Mr. President, may we have order?

The PRESIDING OFFICER. (Mr. NELSON). The Senate will be in order. Will those Senators who wish to carry on conversations retire to the cloakroom? The Senate will be in order. We will not proceed until the Senate is in order.

The Senate is not in order.

The Senate is still not in order.

The Senator from Tennessee will proceed.

Mr. BAKER. Mr. President, I must say that is the most "in order" I have ever heard in the Senate.

Mr. President, the purpose of this amendment is to clarify the relationship between the Federal Water Pollution Control Act, as this bill would amend it, and the National Environmental Policy Act of 1969.

Section 21 (b) of the existing Federal Water Pollution Control Act provides that any Federal agency charged with the responsibility of issuing a Federal license or permit for the conduct of any activity which may result in any discharge into the navigable waters of the United States must, prior to the issuance of such license or permit, receive certification from the State in which such activity will be conducted that the activity will be conducted in a manner that will not violate water quality requirements. Section 21(b), with minor changes, appears as section 401 of the pending bill, S. 2770.

The National Environmental Policy Act of 1969-Public Law 91190-vests in any Federal agency having jurisdiction over any action. significantly affecting the quality of the human environment as affirmative duty to weight environmental impact in determining whether a given action should proceed and, if so, how such an action can minimize its impact on the environment. The issuance of a license or permit by any Federal agency, when the activity licensed or permitted results in a discharge into the Nation's waters, is clearly one of the kinds of actions embraced by the National Environmental Policy Act-NEPA.

In July of this year the U.S. Court of Appeals for the District of Columbia handed down a far-reaching, and as yet unreported, decision in what has become known as the Calvert Cliffs case (U.S.C.A., D.C., --F. 2d, July 23, 1971). In its opinion the Court said, in part:

"NEPA mandates a case-by-case balancing judgment on the part of federal agencies. In each individual case, the particular economic and technical benefits of planned action must be assisted and then weighed against the environmental costs; alternatives must be considered which would affect the balance of values."

I wholly concur with the Court's view of the affirmative mandate imposed by NEPA.

It seems to me most desirable, however, that each Federal permitting and licensing agency not be required by the operation of NEPA to develop special expertise vested by the Congress in other agencies. It was, in fact, to avoid this kind of duplication that the Congress enacted section 21(b) of the Federal Water Pollution Control Act in 1970, As I said earlier, section 21(b), with some modification, appears as section 401 of the pending bill.

My amendment would make it clear that, for the purposes of making the kind of "balancing judgment" required by NEPA, each individual Federal permitting and licensing agency would not be required to develop its own special expertise with respect to water quality considerations. My amendment should not in any way be construed to mean that water quality considerations do not play a role in such a "balancing judgment." On the contrary, where pertinent, water quality considerations must be considered by any agency when it decides, under the NEPA mandate, whether it is in the public interest to grant a license or permit and, if so, under what conditions and stipulaions. However, my amendment would relieve any such permitting or licensing agency of the responsibility for determining on its own the standard of performance or effluent limitation that must be applied to the activity under consideration for a license or permit. That determination would be made by a State or by EPA pursuant to sections 401 and 402 of the pending bill. Certification pursuant to section 402 would discharge a licensing or permitting agency from any further consideration as to what specific degree of effluent control was required with respect to water quality considerations for the activity under consideration.

Mr. President, if I may have the attention of the distinguished manager of the bill, I believe this is a matter that it is felt has its proper place in clarifying the decision in the Calvert Cliffs case. I believe it does no violence to the laudable purpose of the Calvert Cliffs case. I believe it is necessary if we are to avoid duplication which would in

evitably occur. I would genuinely hope that the manager of the bill might consider accepting the amendment.

Mr. MUSKIE. Mr. President, as I understand it, the thrust of the amendment, which has been changed pursuant to my letter of October 27, 1971, is to preserve equally the authority to balance out the environmental protection. I believe we have an understanding as to the thrust of the amendment, and I have no objection to accepting it.

The PRESIDING OFFICER. Do Senators yield back the balance of their time?

Mr. BAKER. Mr. President, I yield back the balance of my time. Mr. MUSKIE. Mr. President, I yield back the balance of my time. The PRESIDING OFFICER. All time on the amendment having been yielded back, the question is on agreeing to the amendment of the Senator from Tennessee.

The amendment was agreed to.

42

REMARKS PRESENTED BY ROBERT LOWENSTEIN AT THE ANNUAL CONFERENCE, ATOMIC INDUSTRIAL FORUM, BAL HARBOUR, FLA., OCTOBER 18, 1971

I must confess to some surprise at seeing such a large audience. In thinking about this afternoon's discussion, I thought of the possibility that there wouldn't be any audience-that half of the audience would be back home stuffing envelopes with 40-day show-cause statements and the other half would be in New York or Boston reassuring their underwriters that AEC didn't really mean it. And, I decided, those not required to file 40-day statements probably wouldn't come to Florida either. I figured they would just about have finished their 60-day costbenefit analyses and, having concluded that the costs of nuclear power outweigh the benefits, would have decided to stay home.

Seriously, though, although this convention is meeting today in the midst of the most serious regulatory problems which have faced the AEC, the situation is not quite hopeless. The advent of a new General Counsel, a new Commissioner and a new Chairman, the first in many years to be appointed from outside the field of atomic energy, will bring fresh points of view to AEC, and hopefully some new approaches. And some new approaches are badly needed; on that the industry, environmentalists and public groups will all agree.

I am sure we all wish you well in your endeavors.

It is interesting and instructive to look back briefly over the less than two years since NEPA was enacted to a time which, in retrospect, seems eons ago. At the time of NEPA's enactment in 1970, AEC was conducting meetings in various parts of the country to refute the claims of two up-start Californians who had asserted that Part 20 limits should be reduced. AEC at that time also denied jurisdiction over thermal and other non-radiological effects, disclaimed interest in or responsibility for state regulatory requirements, and steadfastly maintained the position that nuclear power reactors being constructed as base load plants were not of "practical value".

AEC obviously wasn't reading its Congressional mail which reflected the growing public concern as to the AEC's regulatory policies. Since January 1, 1970, AEC has issued regulations which so reduced permissible effluents that Gofman and Tamplin have had to find other grounds on which to criticize AEC. Also, in contrast to January 1970, AEC is now exercising jurisdiction as to all non-radiological environmental matters, including thermal effects. And antitrust reviews are routinely conducted with respect to all power

reactors.

In December 1969, at the Forum Annual Conference in San Francisco, at a similar panel discussion, I observed that "A minor issue raised by an intervenor could become a dramatic confrontation if

litigation before the AEC necessarily requires a $200,000,000 needed plant to stand idle until the hearing is concluded. . . . It should be possible to adapt hearing procedures so that public disagreement over power reactor operation can be deliberately considered without necessarily converting each disagreement into an eye-ball to eye-ball confrontation between the utility and the opposition."

Such confrontations, too, I am sad to say, have come to pass in the past two years, not once but many times. Commissioner Doub's remarks offer the hope that AEC will soon be dealing with this paramount problem.

Dramatic as the changes in AEC's regulatory programs have been, it is not likely that the rate of change in development of national policy or of AEC regulatory problems will diminish much in the year or two ahead. The changes confronting AEC during the past two years have not occurred in isolation. They have been accompanied by changes in social values and goals of the public at large, changes which are reflected in the programs of all environmental agencies, federal and state. Additional air and water pollution control legislation is under consideration in Congress. Amendments to the Federal Water Pollution Control Act, under consideration before the Senate Public Works Committee, might give States a major role in regulating radiological effluents in addition to the controls exercised by AEC; House and Senate committees, as well as the Joint Committee on Atomic Energy, are considering power plant siting legislation; the Senate Interior Committee is conducting a study under the leadership of Senator Jackson (principal sponsor of NEPA) of national energy policy. The Senate Interior Committee is also considering Senator Jackson's land use policy bill. The Hart-McGovern bill would authorize a new form of citizens' action, and shift a large part of the burden for resolving environmental controversies from regulatory agencies to the courts.

Drastic modifications in AEC's organization and its programs are, I believe, essential not only for AEC to catch up with the changes and added workload of the last two years, but if it is to meet the challenge of continued change and new problems in the years ahead.

It is for this reason I would like to discuss two particularly important areas to which I would commend your attention.

1. There is need for an expanded rule-making program with more meaningful procedures for public and industry participation Although the AEC has recently come to give more emphasis to the issuance of regulations of general applicability to establish its nuclear safety requirements, much more can be done. The objective of the AEC's reactor standards or rule-making program should be to define at an early date what constitutes acceptable design for each of the safety systems of a nuclear power plant. Although accomplishment of this objective might require several years to achieve, it should be adopted now by the AEC as a near-term goal. The issue then in both regulatory staff reviews and contested hearings could center about questions concerning the applicant's compliance with regulatory requirements instead of, as presently, a searching examination, case-by-case, as to what represents an acceptable degree of safety in reactor location, design and operation.

The need for regulations of general applicability is of crisis proportions with regard to non-radiological environmental matters under