October 12, 1972
Page 35417
Mr: MUSKIE. Mr. President, I call up my amendment No. 1740 and ask that it be stated.
The PRESIDING OFFICER. The clerk will read the amendment.
The second assistant legislative clerk proceeded to read the amendment.
Mr. MUSKIE. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 1740 is as follows:
On page 63, line 2, following the word "the" insert the following phrase: "sale for use,".
Mr. MUSKIE. Mr. President, I ask for the yeas and nays.
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, I yield myself 5 minutes.
The PRESIDING OFFICER. The Senator from Maine is recognized for 5 minutes.
Mr. MUSKIE. Mr. President, may I say to my colleagues that we have a 1 hour limitation. I think I can dispense with my case in 10 minutes, so I would expect that there is a reasonable chance for a vote in 20 or 25 minutes. I do not want to delay the Senate unduly.
This amendment is aimed at one point. It is a point I made in connection with the debate on the previous amendment and that is that at the present time some 32 States and numerous localities have adopted or are considering measures to control noise levels for the protection of public health in their communities.
The effect of this bill is to severely restrict, if not entirely eliminate, the right to continue to do so; and when we take that right away from them, then we ought to be certain that we are establishing a Federal policy which will do at least as good a job for them as they are now doing for themselves.
Full implementation of the noise control standards we consider today may be 1 or 2 years away, and the levels of control finally adopted will protect the public health and welfare as perceived on a national basis. They will not meet the needs of many State and local communities which have particularly critical noise problems that require more stringent controls.
The States and localities must have the right to adopt more stringent controls and the ability to enforce them. Use controls alone, without controls on sales, will not be adequate. They will force State and local governments to assume heavy enforcement burdens simply because the Congress was not willing to require manufacturers to carry the responsibility of manufacturing products which could be used in areas with particular noise problems, and if they could not fill those requirements, to be prohibited from selling them in those jurisdictions.
The point of sale is a sensible and manageable point to control and monitor. When States or localities impose use taxes on various products – as many do to collect revenue – they do not put the burden of paying those taxes on the people using the taxed products in the State, and they do not burden themselves with the job of monitoring all users; they require the seller to collect the tax from the users at the point of sale.
Similarly, States which ban use of dangerous weapons or dangerous drugs direct their heaviest efforts at stopping the sale of such items, because permitting the unfettered sale of dangerous drugs and weapons and then trying to control their use would be futile.
In judging the merits of allowing States to impose controls on the sale as well as the use of products which produce dangerous noise, we should consider the different kinds of enforcement mechanisms which the States will have to use. Our local police and court systems are already heavily overburdened with work. Restricting States and localities to use controls alone will put an even greater burden on the police and court systems – each user will have to be apprehended, processed, fined, and convicted, with all the procedural limitations necessarily attached to the criminal law system. Control of sale, involving many fewer persons and products for which levels of noise can be identified before the products reach the stream of trade, is a much simpler method of enforcement.
The protection of manufacturers of noisy products should not be the prime public interest goal of Federal action to control noise. In this connection, let me read a portion of the statement of Mr. Nicholas C. Yost, the deputy attorney general of the State of California in charge of noise, when he testified before my subcommittee on noise control:
The arguments for preemption are not made by the advocates of more stringent abatement of noise pollution. They are made by manufacturers who dislike the multiplicity of labels that confront them in a diverse nation. Their arguments concerning the burden created for them in different standards seems specious. Nobody is telling a manufacturer that he must sell in a particular State. If he wants to sell there he can meet the standards the people of that State choose to adopt. As a practical matter no State or locality will set a standard so low that a necessary item cannot be sold. If that item can be made quieter, why should not the people of that State be enabled to insist upon it.
While it may be argued that preemption provisions are necessary and that they will protect public health because the Federal standards will be sufficiently strict to meet the concerns of most local communities, I must point out that some of our recent congressional experience with preemption has not resulted in such effective or immediate protection of the public health.
The Air Quality Act of 1967, which I sponsored, provided for Federal preemption of the authority to regulate air pollution emissions from new automobiles, except in California. That policy may have had the effect opposite of that which was intended. It appears that the preemption provision of that Act did not cause the auto companies to focus their research efforts and investments on one set of national standards. Rather, the auto companies' efforts have been focused on undermining those national standards.
Again in 1970, preemption was discussed in relation to the regulation of air pollution emissions from aircraft. The Congress decided on a preemption provision effective on enactment and set deadlines for standards to be developed.
Section 231 (a) of the Clean Air Act requires that the Environmental Protection Agency must begin an investigation of air pollution from aircraft within 90 days of date of enactment. Within 180 days after commencing that investigation, the Environmental Protection Agency is required to report on the investigation and propose emission standards for any class of aircraft or aircraft engines which contribute to air pollution which endangers public health and welfare. Ninety days thereafter – 1 year after enactment – EPA was to issue final regulations. The proposed standards were due nearly 1 year ago, September 27, 1971. Today, no report or proposed standards have been published.
This is a classic example of Federal preemption leading to Federal failure to protect public health. The Federal Aviation Administration has undoubtedly discouraged active efforts by the Administrator. And the efforts that the Environmental Protection Agency has made have run aground in the Office of Management and Budget.
Therefore, in consideration of the pending legislation, I expressed reservations regarding a broad preemption provision for product and aircraft emission standards.
Federal noise pollution responsibility will be new, little significant authority or responsibility exists. Conversely, a number of States have regulatory programs which impose enforceable emission controls on noisy products, both at the point of sale and the point of use.
In my judgment, this bill falls short for that reason. That is why I offered the amendment which has just been defeated, offer this amendment as another way of strengthening the hand of local authorities.
Let me read something that was said by the speaker of the Assembly of the State of California with respect to this question before our committee. He said:
I urge you to recommend to the full Senate committee that any language preempting California's enforcement role in noise pollution be deleted from the legislation.
Make no mistake about it, I am here today to endorse progress in sound suppression at the Federal level.
But, should it be necessary, I am also here to begin a campaign to make certain that Washington does not limit our ability to go beyond whatever nationwide controls are enacted.
We have had, Mr. President, a petition from the Legislature of the State of California making the same point to us:
Resolved, That this Legislature respectfully memorializes the Congress of the United States to reject any plan of noise regulation which would prohibit States from adopting standards more stringent than those adopted by the Federal Government.
Normally, Mr. President, I would urge national standards in this field, as I have in air pollution and water pollution, and have supported preemption provisions, because accompanying such preemptions we wrote adequate national policy and adequate national law. In this case, we do not have that situation, and it is for that reason that I have offered these amendments.
This amendment is a very simple one. In section 408 (e) (2) of the bill, on page 62, line 23, Senators will find this language:
Subject to paragraph (1) of this subsection, nothing in this section shall preclude or deny the right of any State or political subdivision thereof to establish and enforce controls on environmental noise through the licensing, regulation, or restriction of the use, operation, or movement of any product or combination of products.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. MUSKIE. I yield myself 2 more minutes.
What I would add to that are the words "sale for use," so that the language would read:
To establish and enforce controls on environmental noise through the licensing, regulation, or restriction of the sale for use, use, operation, or movement of any product or combination of products.
Not permitting localities to control the sale for use is to impose an impossible enforcement problem on local authorities, because the only form of enforcement would be through control of use. I say to my colleagues it is almost impossible for local police departments beleaguered as they are with their responsibilities today, to run them down and control noise pollution by controlling their use after products have been sold in their jurisdictions.
So I urge, Mr. President, that this very simple amendment be adopted. It is consistent with the exercise of police power. The standard that would be used is the standard of health and welfare which we have already adopted in the Clean Air Act of 1970, and which we do whenever it is possible in order to apply enforcement mechanisms to that standard. That is the standard in this case. I urge the adoption of the amendment, and I reserve the remainder of my time.
Mr. PERCY. Mr. President, I ask unanimous consent that Stuart Statler of the staff of the Committee on Government Operations be permitted to be present in the Chamber during the consideration of this measure.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. TUNNEY. Mr. President, the intent of the committee is that conflicting standards on noise emissions from products not be allowed to impose a burden on interstate commerce. Therefore, the bill preempts the setting of noise emission standards enforceable against the manufacturer of a product subject to Federal standards. The committee felt that any imposition of conflicting standards anywhere in the chain of commerce which the manufacturer must meet should not be allowed
However the committee intended to make it clear that States and cities in pursuit of levels of environmental noise thought desirable locally can impose any burden on the users of products covered by Federal standards which it finds necessary. The committee felt that the language of the bill allowing controls on environmental noise through licensing: the use, operation, or movement of products would retain for States and local governments the power to establish and enforce limitations on noise emissions as a condition to use within their jurisdiction. Noise emission limitations imposed through licensing are just as general and easily enforceable as controls on sale. Therefore, the amendment – adding the words "sale for use" – really adds little in practical effect to the powers of State and local governments preserved by the present language of this bill.
Mr. President, I find myself in an interesting position because, having stated what the committee position is, I want the Senate to know that I personally support the language of the Senator from Maine. After having listened to the testimony at our legislative hearing on S. 3342 in California from the Speaker of the House and from an assistant attorney general, I feel that this is really a States rights issue. If the States want to impose a tougher standard on noise emissions through a limitation of the sale of a product, then I feel that the States ought to have that right.
I cannot speak for every State. I do know that some States have excellent ongoing programs to reduce the noise of various products that are sold in intrastate and interstate commerce. I would hate to see the Federal Government move in and say that the good work that has been done by the States and by cities and other localities should be ended.
I yield now to the distinguished Senator from Delaware (Mr. BOGGS).
The PRESIDING OFFICER. How much time does the Senator yield?
Mr. TUNNEY. I yield 5 minutes to the Senator from Delaware.
Mr. BOGGS. I thank the distinguished Senator from California, the floor manager of the bill, for yielding.
First, Mr. President, I ask unanimous consent, on behalf of the Senator from Michigan (Mr. GRIFFIN), that David Clanton, of the staff of the Committee on Commerce, be permitted to be present in the Chamber during the consideration of this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BOGGS. Mr. President, this bill deals with the responsibilities of the Federal Government and the State and local governments in controlling noise created by products manufactured after the effective date of the Federal standard, authority to establish noise emission standards for the product enforceable directly or indirectly against the manufacturer is preempted. States and cities, however, retain complete authority to establish and enforce limits on environmental noise through the licensing, regulation, or restriction of the use, operation, or movement of a product, or concentration or combination of products.
That, briefly, is the language. from the committee report on preemption, on the very question before us. It simply says that, in the manufacture of the product, once a standard has been announced, the Federal Government will preempt, and there will be one standard. There would not be 50 standards for each of the 50 States – or of 50 plus however many thousand cities there may be. That would result in an almost impossible situation. It would be a burden on commerce that would be unbearable and unrealistic, and could not be accepted.
That would be the effect if the amendment offered by the Senator from Maine is accepted. On the other hand, once a product is manufactured under the national standard and goes into commerce, and is located in a city, the local authorities can regulate its use.
For example, a locality can say at what times, if any, it may be used in the vicinity of the hospital, or in any other place, or at what hours of the night or day it can be used, and can set any other regulation or restriction of use affecting the noise that product produces. Any other approach to it would seem to me very unrealistic and would cause a variety of difficulties.
For example, let us suppose that a jackhammer was being used at a construction site in a city.
Construction would have to stop – presuming it could – until a manufacturer could produce a jackhammer that met the city's or the State's particular qualifications. I do not know how unprofitable that would be or how it would run up the cost of the jackhammer for that particular construction job. That is just one example of the extreme results application of this amendment could produce.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. BOGGS. Mr. President, will the Senator yield to me 2 additional minutes?
Mr. TUNNEY. I yield.
Mr. BOGGS. I think I have expressed the committee's position fairly. The committee tried to balance this situation, tried to place all the authority and as much of the regulatory authority in the local authorities, in the State and local governments, as was possible consistent with a reasonable burden on commerce, while placing in the Federal Government the authority which the Federal Government, in behalf of the whole Nation, could properly exercise.
I think that is the situation presented by the amendment of the distinguished Senator from Maine, and I urge that the amendment be rejected.
Mr. MUSKIE. Mr. President, I yield myself 2 minutes for summation, and then I will be prepared to yield back the remainder of my time, if the Senator from California is willing to do so.
As the Senator from Delaware knows, I have always been for preemption provisions in our environmental laws whenever I felt that we had done an effective job of replacing local legislation with Federal legislation. The Senator and I have been together on that in air pollution and water pollution legislation for the last 5 to 10 years, and we will continue to be.
Where we disagree now, is on this simple point :That in this legislation we preempt without substituting effective Federal legislation.
At least 32 States and many localities are moving actively in this field. Federal noise pollution
responsibility is new, and little significant authority or responsibility exists. Conversely, a number of States have regulatory programs which impose emission controls on noisy products which controls are enforceable, both at the point of sale and the point of use.
I cannot support Federal preemption which protects product manufacturers and the air transportation industry without effective regulatory programs which will enhance the quality of the environment. Substitution of Federal law for State law without assurance that public health will be protected is, in my judgment, poor public policy.
For that reason, I urge the adoption of this amendment.
Mr. BOGGS. Mr. President, will the Senator yield me 2 minutes?
Mr. TUNNEY. I yield.
Mr. BOGGS. Mr. President, the bill provides that manufacturers must use the best available technology. What higher standard could one get for the national requirement on this?
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. BOGGS. I yield.
Mr. MUSKIE. As the Senator knows, that provision of the bill rests for its efficacy upon the state of the technology.
Mr. BOGGS. That is correct.
Mr. MUSKIE. What I have complained about in my earlier amendment is that that kind of regulation, depending upon technology, is not supplemented in this bill by adequate controls over cumulative noise levels; and it is because of the inefficacy of the technology that communities have to use supplementary controls of one kind or another to supplement inadequate technology.
It is that which I refuse to see preempted, or at least which I refuse to support the preemption of.
Mr. President, I ask unanimous consent that the names of the Senator from California (Mr. CRANSTON) and the Senator from Massachusetts (Mr. KENNEDY) be added as cosponsors of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Who yields time?
Mr. TUNNEY. I yield back the remainder of my time.
Mr. MUSKIE. I yield back the remainder of my time.
The PRESIDING OFFICER. All time on the amendment has been yielded back. The question is on agreeing to the amendment of the Senator from Maine. On this question the yeas and nays have been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced – yeas 30, nays 45, as follows:
So Mr. MUSKIE's amendment (No. 1740) was rejected.