March 4, 1970
Page 5966
S. 3546 – INTRODUCTION OF NATIONAL AIR QUALITY STANDARDS ACT OF 1970
Mr. MUSKIE. Mr. President, I introduce for myself and Senators RANDOLPH, BAYH, MONTOYA, SPONG, and EAGLETON, the National Air Quality Standards Act of 1970.
In recent months, there has been an increasing awareness in this country that the fight against pollution is not just a matter of cleaning up the environment but a necessity for man's survival.
The most basic of the pollution threats is the contamination of the air – our most precious and irreplaceable resource.
Congress has passed laws to combat air pollution since the early 1960's, but the administration of the Federal programs has not matched the gravity of the problem. If our acknowledgement of the environmental crisis is to be more than rhetorical, those agencies charged with protecting and enhancing our environmental resources must show a greater sense of urgency, and Congress must strengthen their power to do so.
What are we to tell the residents of our large cities where the air pollution endangers public health? What are we to tell our citizens living in rural States who want to preserve their clean air? And what are we to tell the young people who are alarmed over what they must inherit?
Must we tell them that while their leaders proclaimed the environmental crisis, the agencies charged with cleaning up the air could not keep up as time ran out?
In 1963, 1965, and 1967 Congress provided important tools designed to control air pollution and to correct past abuses. Congress enacted the Air Quality Act on November 21, 1967, and called for the designation of air quality control regions within 18 months "to provide adequate implementation of air quality standards." Through January 17, 1970, only 28 of the following 57 air quality control regions anticipated by the Department of Health, Education, and Welfare in May 1969 had been designated:
*1. Washington, D.C.
*2. New York.
*3. Chicago.
*4. Philadelphia.
*5. Denver.
*6. Los Angeles.
*7. St. Louis.
*8. Boston.
*9. Cincinnati.
*10. San Francisco.
*11. Cleveland.
*12. Pittsburgh.
*13. Buffalo.
*14. Kansas City.
*15. Detroit.
*16. Baltimore.
*17. Hartford.
*18. Indianapolis.
*19. Minneapolis-St. Paul.
*20. Milwaukee.
*21. Providence.
*22. Seattle-Tacoma.
*23. Louisville.
*24. Dayton.
*25. Phoenix.
*26. Houston.
*27. Dallas-Ft. Worth.
*28. San Antonio.
29. Birmingham.
30. Toledo.
*31. Steubenville.
32. Chattanooga.
33. Atlanta.
34. Memphis.
35. Portland, Oregon.
36. Salt Lake City.
37. New Orleans.
38. Miami.
39. Oklahoma City.
40. Omaha.
41. Honolulu.
42. Beaumont-Port Arthur.
43. Charlotte, N.C.
44. Portland, Maine.
45. Albuquerque.
46. Lawrence-Lowell-Manchester.
47. El Paso.
48. Las Vegas.
49. Fargo-Moorhead.
50. Boise.
51. Billings.
52. Sioux Falls.
53. Cheyenne.
54. Anchorage.
55. Burlington.
56. San Juan.
57. Virgin Islands.
____________________________
*Designated.
Ambient air quality standards have been approved for only one designated region, Philadelphia, although 19 States have submitted standards for 11 air quality regions for approval by the Department of Health, Education, and Welfare – see table.
[TABLE OMITTED]
If this rate continues, years will be lost before standards are approved for the first 57 regions. We must accelerate this process and expand the national air quality standards program.
The bill which I am introducing today is designed to meet these objectives by:
Directing the Secretary of Health, Education, and Welfare to accelerate the designation of air quality control regions;
Requiring each State to designate air quality control regions for all areas not covered by Federal regions and providing that the Secretary may do so if the State fails to act;
Requiring the establishment of air quality standards within the air quality control regions and authorizing the Secretary to act if a State fails to do so;
Requiring specifically that all air quality standards include emissions standards and schedules for the implementation of such standards;
Requiring that all air quality standards be reviewed and, if necessary, improved at least every 5 years;
Providing for orders from the Secretary for the abatement of any violation of an air quality standard;
Providing for injunctions or similar means to enforce such orders;
Providing for citizen suits for the enforcement of air quality standards;
Requiring that new industries subject to air quality standards install the best available pollution control equipment at the time of construction; and
Prohibiting Federal agencies from making loans or grants or entering into contracts for the construction, installation, or operation of commercial or industrial facilities that do not comply with air quality standards established under the act.
We who talk about the environmental crisis cannot expect to whip the public into a fervor of anticipation and not deliver the improvement our words promise. This legislation is intended to help deliver that improvement.
I ask that the table – to which I have referred in my remarks – and the text of the bill be printed at this point in the RECORD.
The PRESIDING OFFICER. The bill will be received and appropriately referred; and, without objection, the bill and table will be printed in the RECORD.
The bill (S. 3546) to amend the Clean Air Act, as amended, and for other purposes, introduced by Mr. MUSKIE (for himself and other Senators), was received, read twice by its title, referred to the Committee on Public Works, and ordered to be printed in the RECORD, as follows:
S. 3546
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "National Air Quality Standards Act of 1970."
Sec. 2. In order to accelerate the establishment of ambient air quality standards pursuant to section 108 of the Clean Air Act, as amended, the Secretary of Health, Education and Welfare shall designate immediately all air quality control regions pursuant to the provisions of section 107 of the Clean Air Act, as amended.
Sec. 3. (a) Section 107 (a) (2) of the Clean Air Act, as amended, is amended by changing "section 108," to "section 108(c) (1),".
(b) Section 107(a) of the Clean Air Act, as amended, is further amended by adding a new paragraph at the end thereof to read as follows:
"(3) For the purpose of establishing ambient air quality standards pursuant to section 108(c) (2), and for administrative and other purposes, each State shall, after public hearings and within 6 months after the effective date of this paragraph, designate one or more air quality control regions within such State which shall include all areas of the State not included in such regions designated under paragraph (2) of this subsection. Such regions shall be based on jurisdictional boundaries, urban-industrial concentrations, and other factors necessary to provide adequate implementation of air quality standards. The State shall immediately notify the Secretary of such designations. If the State fails to make such designations within the time prescribed, the Secretary shall promptly make such designations and notify the Governor of the State thereof. Such designations may be revised from time to time thereafter as necessary to protect the public health and welfare".
Sec. 4. (a) Paragraph (1) of section 108(c) of the Clean Air Act, as amended, is amended to read as follows:
"(1) If, within 30 days of receiving any air quality criteria and recommended control techniques issued pursuant to section 107, the Governor of a State files a letter of intent that such State will after public hearings and within 180 days, and from time to time thereafter adopt ambient air quality standards applicable to any air quality control region or portions thereof designated pursuant to section 107(a) (2) within such State, and, after public hearings and within 180 days thereafter, and from time to time as may be necessary adopts a plan which shall include compliance schedules and emission requirements necessary for the implementation, maintenance, and enforcement of such standards of air quality adopted; and if the Secretary determines that
"(A) such standards and plan are established in accordance with the letter of intent;
"(B) such State standards are consistent with the air quality criteria and recommended control techniques issued pursuant to section 107;
"(C) such plan assures that such standards of air quality will be achieved within a reasonable time;
"(D) such plan includes emission requirements necessary to implement such standards of air quality;
"(E) such plan includes a procedure to assure that proposed new sources of emissions will not cause violation of such standards;
"(F) a means of enforcement by State action, including authority comparable to that in subsection (k) of this section, is provided; and
"(G) any such State standards and plan are consistent with the purposes of this Act and this subsection; such standards and plan or revisions thereof shall be the air quality standards applicable to such region or portions thereof.
(b) Paragraphs (2) through (6) of section 108 (c) of the Clean Air Act, as amended, are amended to read as follows:
"(2) (A) After public hearings and within 12 months of the effective date of this Act, the Governor of a State shall adopt ambient air quality standards applicable to any air quality control region or portions thereof designated pursuant to section 107(a) (3) of this Act for any pollutants or combinations thereof for which air quality criteria and recommended control techniques have been issued prior to enactment of this Act.
(B) After receiving any air quality criteria and recommended control techniques issued after the date of enactment of this paragraph and after public hearings, the Governor of a State shall adopt ambient air quality standards applicable to such regions pursuant to the procedures set forth in paragraph (1) of this subsection.
(C) Such standards and plan or revisions thereof shall be the air quality standards applicable to such region or portions thereof if the Secretary determines that:
"(i) such standards and plan are established in accordance with the letter of intent;
"(ii) Such State standards are consistent with the air quality criteria and recommended control techniques issued pursuant to section 107;
"(iii) such plan assures that such standards of air quality will be achieved within a reasonable time;
"(iv) such plan includes emission requirements necessary to implement such standards of air quality;
"(v) such plan includes a procedure to assure that proposed new sources of emissions will not cause violation of such standards;
"(vi) a means of enforcement by State action, including authority comparable to that in Subsection (k) of this section, is provided; and
"(vii) such State standards and plan are consistent with the purposes of this Act.
"(3) The Governor of a State shall from time to time, but at least every five years, hold public hearings for the purpose of reviewing the air quality standards established under this subsection and, as appropriate, revising and adopting improved air quality standards. No revised air quality standards shall reduce the ambient air quality of any designated region or portion thereof to which such standards are applicable below the quality established by the air quality standards for such regions or portions thereof prior to such revision".
"(4) If a State does not (A) file a letter of intent or (B) establish or revise air quality standards in accordance with paragraph (1), (2) or (3) of this subsection with respect to any air quality control region or portion thereof, or if the Secretary finds it necessary to achieve the purpose of this Act, or if the Governor of any State affected by air quality standards established pursuant to this Subsection petitions for a revision in such standards, the Secretary shall within 180 days develop proposed regulations setting forth such standards or revisions thereof consistent with the air quality criteria and recommended control techniques issued pursuant to section 107 applicable to such regions or portions thereof. When such standards are developed, the Secretary shall, after notice, promptly hold a public conference of interested representatives of Federal, State and interstate agencies and of municipalities, industries, and other persons to review and comment on such proposed standards. Upon completion of such conference, the Secretary shall publish such proposed standards in the Federal Register with such modifications as he deems appropriate and notify the affected State or States. If, within ninety days from the date the Secretary publishes such standards, the State has not adopted air quality standards found by the Secretary to meet the requirements of this subsection for establishing such standards, or if a petition has not been filed under paragraph (5) of this subsection, the Secretary shall promulgate such standards.
"(5) At any time prior to thirty days after standards have been published under paragraph (4) of this subsection, the Governor of any State affected by such standards may petition the Secretary for a hearing. The Secretary shall promptly issue a notice of such public hearing before a board of five or more persons appointed by the Secretary for the purpose of receiving testimony from State and local pollution control agencies, and other interested persons affected by the proposed standards, to be held in or near one or more of the areas where such standards will apply. Each State affected by such standards shall be given an opportunity to select a member of the board. The Chairman and not less than a majority of the members shall not be officers, or employees of Federal, State, or local governments. Board members, other than officers or employees of Federal, State, or local governments, shall be, for each day (including travel time) during which they are performing committee business, entitled to receive compensation at the rate fixed by the appropriate Secretary but not in excess of the maximum rate of pay for grade GS-18 as provided in the General Schedule under section 5332 of title 5 of the United States Code, and shall notwithstanding the limitations of sections 5703 and 5704 of title 5 of the United States Code, be fully reimbursed for travel, subsistence, and related expenses. On the basis of the evidence presented at such hearing, the board shall within thirty days unless the Secretary determines a longer period is necessary, but in no event longer than sixty days, make findings of fact as to whether the standards comply with the requirements of this subsection for establishing such standards and issue a decision incorporating such findings therein and transmit its findings to the Secretary and make its findings public. If the Board finds that such standards so comply, they shall be promulgated immediately. If the Board recommends modifications therein, the Secretary shall promulgate revised standards in accordance with such recommendations.
"(6) Any violation of air quality standards established under this subsection, including the implementation plan is prohibited.
" (7) Whenever, on the basis of surveys, studies, investigations, or reports, an authorized representative of the Secretary finds a violation of such standards he shall promptly issue an order in writing to the person causing or contributing to such violation requiring such person to abate such violation as soon as possible and within a time to be prescribed therein, except that in the case of a violation of emission requirements, such time shall not exceed 72 hours. A copy of the order shall be sent to the State pollution control agency of the State or States in which the violation occurred. Subject to the provisions of this subsection, such order shall remain in effect until such representative determines by written notice to such person that such violation no longer exists. All such orders shall contain a detailed description of the conditions or practices which cause or constitute a violation. Nothing in this paragraph shall affect the authority of the Secretary pursuant to subsection (k) of this section.
"(8) (A) Any person issued an order pursuant to paragraph (7) of this subsection other than an order to abate a violation of an emission requirement may file with the Secretary an application within thirty days of receipt thereof for a public hearing to review such order. The applicant shall send a copy of such application to the State pollution control agency in which the violation occurred. Upon receipt of such application, the Secretary shall promptly hold a public hearing to enable such person and other interested persons to present information relating to the issuance and continuance of the order, or the time fixed therein, or both. The filing of an application for review under this paragraph shall not operate as a stay of the order. Any such hearing shall be of record and shall be subject to section 554 of title 5 of the United States Code.
"(B) Immediately upon completion of the hearing, the Secretary shall make findings of fact giving due consideration to the technological feasibility of complying with such standards and he shall issue a written decision, incorporating therein an order vacating, affirming, modifying, or terminating the previous order complained of and his findings.
"(C) In connection with any hearing under this paragraph, the Secretary may sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpoena served upon any person under this paragraph, this district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Secretary or to appear and produce documents before the Secretary, or both and any failure to obey such order of the court may be punished by such court as a contempt thereof.
"(9) Any decision issued by the Secretary under paragraph (7) or (8) of this subsection shall be subject to judicial review by the United States court of appeals for the circuit in which the violation occurred, or the United States Court of Appeals for the District of Columbia Circuit, upon the filing in such court within thirty days from the date of such order or decision of a petition by any person aggrieved thereby praying that the order or decision be modified or set aside in whole or in part. Any order issued by the Secretary to abate a violation of an emission requirement shall be final and shall be in force until and unless the court determines that the interests of the public are best served by staying such order. A copy of the petition shall forthwith be sent by registered or certified mail to the Secretary and the State water pollution control agency, and thereupon the Secretary shall certify and file in such court the record upon which the order or decision complained of was issued, as provided in section 2112 of title 28, United States Code. The court shall hear such petition on the record made before the Secretary. The findings of the Secretary, if supported by substantial evidence on the record considered as a whole, shall be conclusive. The court may affirm, vacate, or modify any order or decision of the Secretary and, when appropriate, issue such process as may be necessary to abate such violation, or may remand the proceedings to the Secretary for such further action as it may direct. The judgment of the court shall be subject to review only by the Supreme Court of the United States upon a writ of certiorari or certification as provided in section 1254 of title 28, United States Code. The commencement of a proceeding under this paragraph shall not, unless specifically ordered by the court, operate as a stay of the order or decision of the Secretary.
"(10) (A) The Secretary shall institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which a person subject to air quality standards established under this section is located or resides or is doing business, whenever such person (i) violates or fails or refuses to comply with any final order or decision issued under this Subsection to enforce air quality standards established under this subsection or (ii) interferes with, hinders, or delays the Secretary or his authorized representative in carrying out his responsibilities under this section, or (iii) refuses to furnish any information, data or reports requested by the Secretary in furtherance of the provisions of this section, or (iv) refuses to permit access to, and copying of, such records as the Secretary determines necessary in carrying out the provisions of this section. Each court shall have jurisdiction to provide such relief as may be appropriate, except that such court shall have jurisdiction only with regard to the issue of relief being sought pursuant to this paragraph. Temporary restraining orders shall be issued in accordance with Rule 65 of the Federal Rules of Civil Procedure, as amended, except that the time limit in such orders, when issued without notice, shall be seven days from the date of entry. In actions under this section, subject to the direction and control of the Attorney General, as provided in section 507(b) of title 28 of the United States Code, attorneys appointed by the Secretary may appear for and represent him. In any action instituted under this section to enforce an order or decision issued by the Secretary after a public hearing in accordance with section 554 of title 5 of the United States Code, the findings of the Secretary, if supported by substantial whole, shall be conclusive.
"(B) Any person who knowingly violates any air quality standards established under this subsection or who knowingly violates any plan for implementation or emission requirements included in such standards or who knowingly violates or fails or refuses to comply with any final order or decision issued under this section shall, upon conviction, be punished by a fine of not more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both, except that if the conviction is for a violation committed after the first conviction of such person under this section, punishment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment for not more than five years, or by both.
"(C) Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this title or any order or decision issued under this section shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.
"(11) For the purpose of making any investigation under this subsection of any building, structure, or other facility subject to air quality standards established under this subsection, the Secretary or his authorized representative shall have a right of entry to, upon, or through such building, structure, or facility. Whenever any person is required by a final order issued under this subsection to abate any violation of air quality standards established under this subsection, the Secretary shall, when appropriate, require such person to sample any emissions subject to abatement by such order in accordance with such methods, at such locations, at such intervals, and in such manner as the Secretary shall prescribe and report such samples to the Secretary as he may prescribe and such report shall be public.
"(12) (A) No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any employee or any authorized representative of employees by reason of the fact that such employee or representative of any alleged violator has filed, instituted, or caused to be filed or instituted any proceeding under this Act, or has testified or is about to testify in any proceeding resulting from the administrations or enforcement of the provisions of this Act.
"(B) Any employee or a representative of employees who believes that he has been discharged or otherwise discriminated against by any person in violation of subparagraph (A) of this paragraph may within thirty days after such violation occurs, apply to the Secretary for a review of such alleged discharge or discrimination. A copy of the application shall be sent to such person who shall be the respondent. Upon receipt of such application, the Secretary shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing at the request of any party to enable the parties to present information relating to such violation. The parties shall be given written notice of the time and place of the hearing at least five days prior to the hearing. Any such hearing shall be of record and shall be subject to section 554 of title 5 of the United States Code. Upon receiving the report of such investigation, the Secretary shall make findings of fact. If he finds that such violation did occur, he shall issue a decision, incorporating an order therein, requiring the person committing such violation to take such affirmative action to abate the violation as the Secretary deems appropriate, including, but not limited to the rehiring or reinstatement of the employee or representative of employees to his former position with compensation. If he finds that there was no such violation, he shall issue an order denying the application. Such order issued by the Secretary under this subparagraph shall be subject to judicial review in accordance with this subsection. Violations by any person of paragraph (1) of this subsection shall be subject to the provisions of paragraph (10) of this subsection.
"(C) Whenever an order is issued under this paragraph, at the request of the applicant, a sum equal to the aggregate amount of all costs and expenses (including the attorney's fees) as determined by the Secretary to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person committing such violation.
"(13) The district courts of the United States shall have original jurisdiction, regardless of the amount in controversy or the citizenship of the parties, of civil actions brought by one or more persons on behalf of themselves or on behalf of any other persons similarly situated within any air quality control region or portion thereof designated under section 107 against any person including a governmental instrumentality or agency, for declaratory and equitable relief or any other appropriate order against any person, where there is an alleged violation of any applicable air quality standards, plan for implementation or emission requirements established pursuant to this section. Nothing in this Subsection shall affect the rights of such persons as a class or as individuals under any other law to seek enforcement of such standards.
"(C) Section 108 of the Clean Air Act, as amended, is further amended by adding a new subsection at the end thereof to read as follows
"(i) within six months after the effective date of this Act, the Secretary shall issue regulations to insure that any person constructing or installing any new building, structure or other facility subject to any air quality standard established or revised pursuant to this section installs, maintains and uses the latest available pollution control techniques. Such techniques shall be consistent with information developed pursuant to Section 107(c). No person shall construct or install any such building, structure or facility without first receiving certification of compliance with such regulations from the Secretary or, as appropriate, the State pollution control agency. In no event shall the Secretary or state agency certify any technique which does not implement emission requirements established pursuant to this Act."
Sec. 5. Section 111 of the Clean Air Act, as amended, is amended further by adding a new subsection at the end thereof to read as follows:
"(c) Beginning on and after July 1, 1972, no Federal department or agency (1) shall make any loan or grant to, or issue any license or permit to, or enter into any contract for financial assistance with, any person for the construction, installation, or operation of any commercial or industrial building, structure, or other facility from which any matter is discharged into the air within any air quality control region or portions thereof designated under this title, or (2) shall procure goods or products from any person who manufactures such goods or products in a building, structure, or other facility from which matter is discharged into the air within any air quality control region or portions thereof designated under this title, unless it is found that such matter is being discharged in compliance with the air quality standards including emission requirements established under this title for such region or portions thereof by the air pollution control agency of the State in which such building, structure, or facility is located and such person files a statement with such department or agency of such finding"
Sec. 6. The provisions of this Act amending the Clean Air Act, as amended, shall, unless otherwise provided in said amendments, be effective on July 1, 1971, except that such amendments shall not, unless otherwise provided therein, affect actions taken under the sections as amended prior to such effective date.
The table, presented by Mr. MUSKIE, is as follows:
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