[Congressional Record Volume 157, Number 167 (Thursday, November 3, 2011)]
[Senate]
[Pages S7135-S7136]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. JOHANNS:
  S. 1805. A bill to prohibit the Administrator of the Environmental 
Protection Agency from rejecting or otherwise determining to be 
inadequate a State implementation plan in any case in which the State 
submitting the plan has not been given a reasonable time to develop and 
submit the plan in accordance with a certain provision of the Clean Air 
Act; to the Committee on Environment and Public Works.
  Mr. JOHANNS. Mr. President, few things provide me with greater 
charity than conversations I have with people back home in Nebraska. I 
rise to discuss a few of those conversations I had just last week 
during our work period back home. I used this opportunity to meet with 
electricity providers serving Nebraskans across the great State of 
Nebraska, from the more populated areas such as Omaha, to smaller 
communities such as Hastings, NE.
  It will come as no surprise, I believe to anyone, that the focus of 
their frustration, their anger is with the EPA. They feel they have 
been treated unfairly. They feel the Agency has not been straight 
forward or transparent. They feel they now have a target on their 
backs, and they know that compliance with the latest EPA regulatory 
bombshell is going to have a crushing impact on the communities they 
serve.
  Their latest concern is a rule known as the cross-state air pollution 
rule or cross-state. The rule addresses airborne emissions that EPA 
claims cross State lines and may affect air quality in another State. 
EPA issued the final rule in July of this year. Let me repeat that. EPA 
issued the final rule in July of this year and then demanded compliance 
by January 2012.
  That is 6 months. That is an impossibility and EPA knows it. Here is 
why it is an impossibility. This is especially relevant to my State. 
Nebraska was not included in the old version of the same rule, the so-
called clean air interstate rule. We were not a part of it. The final 
rule changed dramatically from the proposed version.
  For example, the required reductions increased dramatically from the 
proposed rule that was published in July of 2010. So Nebraska first 
found itself subject to this type of EPA rule in the proposed rule in 
July of 2010. Then the final rule arrives a year later and, boom, it is 
a dramatically different rule--more severe reductions in compliance in 
an almost laughable 6 months.
  Basically, Nebraska gets a final rule thrust upon them and no 
opportunity to comply. That could not be more unjust. Draconian changes 
made in a final rule that depart so significantly from the proposed 
rule defeat the very purpose of our laws that prescribe how agencies 
are supposed to make rules. I ran one of those agencies as Secretary of 
Agriculture.
  This process makes a mockery out of the rulemaking process. It makes 
public comments absolutely meaningless. What good does review of a 
proposed rule do when the final rule is so radically different from the 
original proposal? It also means the community regulated cannot plan 
and cannot fix the problem.
  This is our government we are talking about. Utilities cannot go to 
their ratepayers and say: Look, we have to make changes. It is going to 
take some time and money, but here is our plan and here is how much it 
will cost as a ratepayer. EPA has totally shoved aside the traditional 
role that some State regulators play as an EPA partner in establishing 
clean air plans known as State implementation plans. In fact, in this 
case, the EPA established a Federal implementation plan, a one-size-
fits-all national plan that completely rejects State efforts to manage 
compliance.
  Our power providers and regulators are echoing this same message. 
There just is not enough time for them. Instead of 3 or 5 or 10 years 
that is needed, by administrative fiat, EPA has said: They get 6 months 
to rebuild a powerplant. Let me be crystal clear about what Nebraska's 
power providers did and did not do.
  They did not say: We cannot change and we will not change. They did 
not say: Just leave me alone. What they did say to me, very clearly, 
is: We cannot waive a magic wand. We cannot do the impossible. We 
cannot put together the finance plan in 6 months. We cannot put a 
request for bid out and get the work done in 6 months. We cannot get a 
design plan written by a competent engineering firm. We cannot arrange 
for a plant shutdown. We cannot get the construction crews to our 
facility, especially as cold weather sets into our State between now 
and January 1 to rebuild the powerplants. It simply is not humanly 
possible.
  What options are possible? Someone listening to me might ask: What 
options do they have? Unfortunately, the

[[Page S7136]]

first thing our providers are doing is just trying to understand the 
rule. That in itself is no small task, because as I explained, the rule 
is essentially brand new. The ink is barely dry. The EPA did a head 
fake. They said: Here is the rule and then completely changed it in the 
final rule.
  Secondly, electricity providers are making plans--get this. They are 
making plans all across this country to decrease electric generation 
because of this rule. In Hastings, NE, ratepayers have been told to 
expect an increase in operating costs of at least $3.8 million per 
year. Including costs of retrofits for this rule and two others that 
are in the works by EPA, Hastings figures $40 to $50 million will be 
spent over the next 5 years.
  Think about that for a second. Imagine $40 to $50 million for a 
community of 25,000 people. That is for Hastings and only if the 
utility can figure out how it can get it done. Guess who bears the 
brunt of these costs. Every Hastings resident with an electricity 
meter--not shareholders. This is not a big electric company. No 
shareholder equity will be drawn down, no preferred stock to be newly 
issued. We are, in our State, a 100-percent public power State. Just 
those folks in Hastings, NE, because they got swept into an EPA rule 
last July with a January deadline. Fremont, NE, another great Nebraska 
community caught in the crosshairs, has indicated the cross-state rule 
and two other EPA rules will cost customers about $35 million over the 
next 3 years.
  In New York City or Washington, DC, $35 million may seem 
insignificant. But to the 25,000 residents of Fremont, NE, it is a huge 
deal. Similarly, the cross-state rule will cost the Nebraska public 
power district, our largest electricity provider, about $6 million next 
year in reduced revenue, as well as mandating about $40 million in 
costs before the end of 2012. Electricity providers across the State 
are all looking at purchasing power from other generators. The only way 
they can get compliance now is to reduce generation.
  Of course, many neighboring utilities in the State are subject to the 
same final rule. Guess what. This is the problem across the country. So 
everybody is in the hunt, and the short compliance timeframe is likely 
to drive the price of energy even higher. Another option includes 
purchasing pollution credits on the open market. No one knows how much 
it will cost because the same comprised timeline affects the markets 
for credits.
  People may have also noticed I have not mentioned the bid, the 
design, the implementation, the installation of pollution control 
equipment as a compliance strategy, because in our State, that 
possibility is not an option for us because of the EPA's timeline. Six 
months is not enough time, especially when the labor, the technical 
knowledge, the contractors, the financing are all being chased by our 
utilities subject to the same rule.
  Is it any wonder people are frustrated? Is it any wonder at all? That 
is why today I am introducing legislation that addresses the way the 
EPA handled this rule. My bill takes a couple reasonable steps to 
address this unfair treatment, not only in my State but in 27 other 
States. First, under my bill, EPA is prohibited from dictating Federal 
implementation plans unless the Agency has given the State a sufficient 
amount of time to develop a plan.
  The State must be given 2 years to put a plan in place. In addition, 
if my bill is enacted, EPA cannot choose to reject a State's plan if, 
as a result, compliance would immediately follow. In other words, my 
bill prohibits EPA from jamming States by rejecting their plans and 
requiring an unreasonable compliance timeframe. Finally, my bill says 
EPA's compliance deadlines are set aside for 3 years while States get a 
chance to put this together. The message of my bill is straightforward: 
Do not freeze out States. Do not jam us with a compliance schedule that 
everybody knows will not work.
  Nebraskans, similar to everybody else, are tired of being treated as 
second-class citizens by an agency that has run amuck. I suspect the 
same is true of 27 other States. Nebraskans simply cannot believe EPA 
is hitting the accelerator on a rule that will drive up electricity 
bills in more than half the country with no way for States to comply.
  I share their frustration. The EPA is in a constant thirst for power. 
I urge my colleagues to cosponsor this legislation, to introduce one 
small dose of common sense to this out-of-control agency.
                                 ______