CONGRESSIONAL RECORD — SENATE

August 4, 1976

Page 25540

CLEAN AIR AMENDMENTS OF 1976

The ACTING PRESIDENT pro tempore. Under the previous order, the Senate will now resume consideration of S. 3219 which the clerk will state by title.

The legislative clerk read as follows:

A bill (S. 3219) to amend the Clean Air Act, as amended.

The ACTING PRESIDENT pro tempore. The pending question is on the amendment of the Senator from Alabama (Mr. ALLEN) No. 2101, to the amendment of the Senator from West Virginia (Mr. RANDOLPH). Who yields time?

Mr. ALLEN. Mr. President, a parliamentary inquiry.

The ACTING PRESIDENT pro tempore. The Senator will state it.

Mr. ALLEN. Is the time spent in quorum calls counted against the 15 hours of debate?

The ACTING PRESIDENT pro tempore. Unless there is unanimous consent request which is granted, the time will not count. The time would ordinarily count.

Mr. ALLEN. I thank the Chair.

I ask unanimous consent that we have a short quorum call in order that we might get attendance of more Senators.

Mr. MUSKIE. Reserving the right to object, will the Senator repeat his request?

Mr. ALLEN. I ask unanimous consent that there be a short quorum call to see if we can get other Senators into the Chamber while this matter is being discussed.

The ACTING PRESIDENT pro tempore. And it is the understanding of the Chair that the time will not be charged to either side. Is there objection?

Mr. MUSKIE. Provided it is understood that it will not be a live quorum.

Mr. ALLEN. I have no intention of its going live. I would have in mind not over 10 minutes.

The ACTING PRESIDENT pro tempore. Without objection, the unanimous consent request is agreed to.

Mr. ALLEN. I suggest the absence of a quorum, Mr. President.

The ACTING PRESIDENT pro tempore. The clerk will call the roll.

The second assistant legislative clerk proceeded to call the roll.

Mr. ALLEN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. Who yields time?

Mr. ALLEN. Mr. President, I yield myself, from the time allotted to me, such time as I may use.

The ACTING PRESIDENT pro tempore. The Senator from Alabama is recognized.

AMENDMENT NO. 2101

Mr. ALLEN. First, Mr. President, I send to the desk a modification of amendment No. 2101, and ask that it be stated.

The ACTING PRESIDENT pro tempore. The Senator may modify his amendment if he chooses.

The modification will be stated.

The legislative clerk read as follows:

Beginning on line 6, after "investigation strike the comma, insert a period, and strike the remainder of the amendment that follows thereafter.

Mr. ALLEN'S amendment No. 2101 (as modified) is as follows:

On page 2, line 11, strike the period and insert a semicolon and add the following: "none of which provisions shall be implemented or enforced until a period of one year shall have elapsed from the date on which the Commission submits the report required of it on the results of its study and investigation.

Mr. ALLEN. Mr. President, originally I submitted two amendments, amendment No. 2092 and amendment No. 2100. I ask unanimous consent that those amendments be printed in the RECORD at this point.

The PRESIDING OFFICER (Mr. CANNON) . Without objection, it is so ordered.

There being no objection, the amendments were ordered to be printed in the, RECORD, as follows:

AMENDMENT No. 2092

On page 2, line 11, strike the period and insert a semicolon and add the following: "none of which provisions shall be implemented or enforced until a period of one year shall have elapsed from the date on which the Commission submits the report required of it on the results of its study and investigation.".

AMENDMENT No. 2100

At the end of line 11, page 2, add the following sentence: "None of the provisions of subsection (g) of section 110 of the Act in contravention of the recommendations of said Commission as contained in said report shall be enforced or implemented.".

Mr. ALLEN. Those amendments, then, were merged, under the amendment offered by the Senator from Alabama now speaking and the distinguished Senator from Florida (Mr. STONE) , to become amendment No. 2101.

Rather than offer amendment No. 2092, since much of the discussion has been on amendment No. 2101, I have merely modified it — and I offer this modification on behalf of myself and the distinguished Senator from Florida (Mr. STONE) — by striking out the second aspect, the second division of the amendment. In other words; as it now stands, it is the same as amendment No. 2092.

The status of the parliamentary situation is that the Moss amendment has been defeated. That amendment would have stricken out section 6 of the bill.

This is also referred to as subsection (g) of section 110 of the act. They are identical, and are interchangeable terms, as I understand it.

So the Senate has decided that it wishes to leave section 6 in the bill. That is quite obvious, because there was about a 2 to1 vote, and unquestionably that section will be a part of the bill when it is finally passed on tomorrow.

The first amendment that was offered when this bill was laid before the Senate, the Randolph amendment (No. 1798), which in effect would have allowed the enactment of section 6, and at that time would have set up a commission to study the implementation and the factors surrounding the implementation of section 6. In other words, the law would be enacted and we would have an ongoing study by a commission.

But the theory of the Moss amendment was that we should not enact before study, that the study come first and enactment later.

When the Randolph amendment (No. 1798) was offered, the Moss amendment was not in order as to the Randolph amendment. Since the Moss amendment was not in order as to the Randolph amendment, the Senator from Alabama, with the approval of the distinguished Senator from Utah (Mr. MOSS), did prepare an amendment (No. 2101) which was a halfway position between the Randolph amendment providing for enactment and a simultaneous study or an ongoing study from the time of the enactment, and the Moss amendment, which would have had the study and then enactment later, at no stated time.

So amendment No. 2101 offered by Mr. STONE and myself in effect provides for the enactment of section 6. There is no doubt about that becoming the law. There is no state of confusion as to when or whether section 6 would be enacted, which is a doubt left by the Moss amendment, but amendment No. 2101 would not leave any doubt about the enactment of section 6. It would go on the statute books under amendment No. 2101. However, the provisions of section 6 would be stayed, held in abeyance for 1 year after the committee made its recommendations. What is the purpose of that? It provides for a reliable study before the going into effect of the provisions of section 6. Why the year? Well, after the committee makes its findings and its recommendations, Congress would have 1 year to make such refinements or such modifications in section 6 as seemed to be indicated by the recommendations of the Commission.

What possible criticism could be offered to that plan? We have got the statute enacted; it is the law of the land, but anticipating that possibly this might not be the best possible remedy or plan for action, as the case might be, why not allow a period of 1 year after the Commission makes its recommendation before the provisions of section 6 would be implemented?

I have heard on the floor here time and time again — and it is a part of the legislative history, Mr. President — that EPA already has the power that is given to it under section 6. In fact, it has been asserted time and time again that section 6 is less restrictive than present EPA powers and regulations.

That being true, Mr. President — and I have no recourse but to accept it, and I am glad it is a part of the legislative history — I state here as a part of the legislative history that the proponents of the bill have stated on the floor, as the RECORD will show, that the purpose of section 6 and the function of section 6 has been to provide less restrictive regulation, to give relief rather than harassment. And it has been pointed out that some of the powers the EPA now has would be transferred over to the States in the implementation of the regulations provided for under section 6. So if we have in the present law for EPA more power already on the statute books than it would have under the Clean Air Act amendments, why not wait the year? We are not depriving EPA of anything during that interim period of 1 year. They have the power, so say the sponsors of the bill.

Why not wait until the Commission makes its report? We are not saying under amendment No. 2101 that section 6 shall not be enacted. The effect of this amendment is, yes, enact section 6. They say it is less restrictive than present law. Fine. The Commission might say that section 6 ought to be strengthened. Who knows?

But before we implement a section that takes power from EPA and makes their regulations less restrictive, let us have the study. The study might show that some of the provisions are unwise. I have pointed out the mandate that the Commission has under the Randolph amendment, and I do not wish to interfere in any way with this mandate, because I think the mandate is excellent. No one objects to the Commission. Everyone is for the Commission I assume everyone is for this mandate because the mandate indicates that we have practically no knowledge whatsoever about what we are legislating about. That is what the mandate indicates.

Look on page 2, subsection (2) starting with section (A) on through (F) — (A), (B), (C), (D), (E), and (F). That is the Commission's mandate. And it indicates that we are legislating not from strength, knowledge, or wisdom, but we are enacting section 6 from a status of lack of knowledge and complete ignorance on the subject.

Is that an incorrect statement?

But will the Commission be mandated to check into something that we already know about? Will the Commission be mandated to check into established facts? Well, hardly. They will not wish to go through a needless exercise. So, we assume, therefore, that the areas in which the Commission is mandated under the Randolph amendment to study represent areas about which we do not have sufficient facts, knowledge, or expertise. These are the very areas covered by section 6.

Let us see what the Commission is called on to study. Among other things, it is to study under (A)—

whether the provisions relating to the designation of, and protection of air quality in class I regions under this Act are appropriate to protect the air quality over lands of special national significance, including recommendations for, and methods to add to or delete lands from such designation, and to provide appropriate protection of the air quality over such lands ...

So apparently we do not know whether the designation and protection of air quality in class I. regions under the act are appropriate to protect the air quality over lands of special national significance. We do not know or this Commission will not be charged with the duty of finding out whether the provisions of section 6 are appropriate or not. We do not know that. So we ask the Commission to study it. In the meantime, we enact section 6, while we are having an ongoing study after the enactment of section 6 of whether section 6 is appropriate or not.

Next, we call on the Commission to check and study whether the provisions of subsection(g) of section 110 of this Act — that is section 6 — including the 3-hour and 24-hour increments, affect the location and size of major emitting facilities, and whether such effects are in conflict or consonance with other national policies regarding the development of such facilities ...

So we do not know that, and that is covered in section 6. We know nothing about it, and we are charging the Commission with the duty of finding out about it by making the study. But in the meantime, we pass the law.

I think this is the most significant area of the study and shows a complete lack of knowledge on the part of those charged with implementing this act.

Let us listen to this. The Commission, after section 6 is enacted, is charged with the duty of studying—

... whether the technology is available to control emissions from the major emitting facilities which are subject to regulation under subsection (g) of section 110 of this Act — and I say parenthetically that is the same as saying section 6 — including an analysis of the costs associated with that technology ...

So, Mr. President, apparently, we are legislating here — those who are ramming section 6 down the throats of those to be regulated — when they do not even know whether the technology is available to control emissions from the major emitting facilities which are subject to regulation under subsection 6. We pass a law governing emissions from plants, and they do not even know, and they call on the Commission to find out, whether the technology is available even. This technology may be 10 years down the road. But here they are enacting section 6, and it is a foregone conclusion they are going to do it because they voted 2 to 1 on yesterday, in effect, to enact it by killing the Moss amendment which would have stricken it out.

The Senate is enacting in this area, and it does not even know whether the technology is available to comply with this legislation. How anxious can we get? How precipitous can we get? Without even knowing whether the technology is available to comply with section 6, the Senate goes ahead and enacts section 6. That does not make very good sense, it seems to the Senator from Alabama. That is done without even knowing the facts to enact a law under which regulations could be imposed, and we do not even know whether the technology is available to comply with those restrictions.

Why not, Mr. President, follow the route proposed by amendment No. 2101, as modified by the distinguished Senator from Florida (Mr. STONE) and myself. It provides, because that is inevitable, for the enactment of section 6. That seems to be the will of the Senate. I am not disputing that. I am accepting that as an accomplished fact. We are going to enact section 6. I do not favor it, but the Senate has indicated, without doubt, that it will not knock it out. All right.

Let us legislate, then, having in mind that section 6 will be enacted and that a commission will be set up to study the implementation of section 6. But we know very little about the area in which we are legislating, as indicated by the areas that the commission is to investigate. I read only three of the areas. Section (d) is to study whether the exclusion of nonmajor emitting sources from the regulatory framework under this act will affect the protection of air quality in class I and class II regions designated under this act. In other words, it is to check to see whether section 6 is acting properly in excluding nonmajor emitting sources from the regulatory framework. They do not know whether that should be done, and it asks the commission to find out.

So if there is any doubt — as seemed to be indicated when the Moss amendment was turned down — if there is any doubt about section 6 becoming the law, that doubt is removed under the Randolph amendment. It also is removed under amendment No. 2101, because the Randolph amendment — hopefully, as amended by the Stone and Allen amendment — would presuppose and assume the enactment of section 6. But it would stay the enforcement or implementation of section 6 until after the commission had made its study and made its report as directed under the bill.

Then a period of 1 year should elapse, so that corrective or implementing legislation to section 6 could be enacted.

Let us see what the difference is between the pending amendment and the Moss amendment. The Moss amendment would provide for a study, and section 6 would be eliminated from the bill.

Then, if the study indicated that a section 6 — that is, provisions in line with section 6 — should be enacted, we still would have the legislative hurdle of getting Congress to enact a section 6 or provisions similar to section 6.

The argument could be made, I am sure, that under that amendment, one could not be absolutely sure that section 6 would ever come back. Those in the Senate who want it, even though it is not based on the study — it is not based on the knowledge of the facts as indicated by the Randolph amendment — those in the Senate who want to legislate without a study, will get what they want, under the pending amendment. They would get section 6 enacted into law. There would be no doubt about it. It comes into full bloom, unless modified by Congress, 1 year after the commission makes its report.

So, Mr. President, with EPA having more power right now than it will have after section 6 is enacted — and my authority for that is the sponsors of the bill — what is there to lose? What is there to lose in the cause of cleaning up the air? They have more power now than they will have after section 6 is enacted, we are assured by the sponsors of the bill, so what is there to lose?

Continue with that added power until the commission makes its report and a period of 1 year has elapsed thereafter, at which time section 6 will come into full force and effect. It does not take another law of Congress. It is just a moratorium of 1 year on its implementation, after the report is filed.

So, in effect, if the sponsors of the bill can be believed as to the accuracy of their statement that section 6 is less restrictive than EPA's present power, why not leave EPA unmolested with this added power for another year, before section 6 comes into full force and effect? I say 1 year. Not a year from now, but a year from the filing of the report by the commission.

So, Mr. President, the pending amendment recognizes and acquiesces in the enactment of section 6.

But since, essentially, we know so little about this area, let us wait a year after the commission makes its report before we implement section 6, give Congress an opportunity to follow the recommendations of the commission. We might find that more restrictive measures are needed. We might find that section 6 is not restrictive enough. We might find it is too restrictive. But in the light of that information, as adduced by the commission set up under the Randolph amendment — this does not change the Randolph amendment one jot or one tittle; it leaves it in full force and effect. So anyone who supports the Randolph amendment — and I think that includes pretty nearly everybody in the Senate, because everyone thinks a study ought to be made. It is a question of whether we study before we enact or whether we study after we enact. That is the only thing there.

I want to assure the distinguished Senator from West Virginia that my amendment does not affect at all the provisionsof his amendment.

It just provides that section 6 shall not go into full force and effect until 1 year after the commission set up under the Randolph amendment makes its report.

I am happy to yield to the distinguished Senator from West Virginia.

Mr. RANDOLPH. I appreciate the distinguished Senator from Alabama (Mr. ALLEN) yielding to me. This would not perhaps be a significant point in reference to the purposes of the amendment that I have offered, but the commission would be appointed within 90 days after the enactment of the law. The commission has a 3-year study limitation for reporting; however, the special study of the so-called Randolph amendment would not run for the 3-year period, but rather for 2 years. I simply want to indicate that my amendment zeroes in on this important issue.

Mr. ALLEN. I believe it says not more than 2 years, which could mean as little as 2 or 3 months.

Mr. RANDOLPH. Yes, that is a maximum.

Mr. ALLEN. Yes.

Mr. RANDOLPH. I was only saying that this study is to have the primary focus of the commission for the initial 2 years.

Mr. ALLEN. Yes.

Mr. RANDOLPH. We should remember that in my study amendment we are attempting to act expeditiously in referenceto that study and the findings therefrom.

Mr. ALLEN. Yes, and the only objection I have, the Senator understands, is that he is investigating the propriety of section 6 after it has already been enacted, after the horse has gotten out of the stable, so to speak. So the Allen amendment would leave the Randolph commission, I will call it — as it should be called — in full being to perform its duties entirely as provided under the Randolph amendment. It just delays the effective date of section 6 until the lapse of 1 year following the making of the report by the commission.

Mr. RANDOLPH. I am not being facetious, but I think that, actually, the horse is going in and out of the stable, rather than being on the inside of the stable or the outside of the stable. As Senator MUSKIE and others on our committee know, there is constant change. This is the process which we all understand in reference to clean air. I only say this because we are not attempting to lock in anything by adopting the section of the committee bill. Rather, we are establishing a process which will be subject to later modification.

Mr. MUSKIE. Mr. President, will the Senator from Alabama yield for a moment?

Mr. ALLEN. Yes.

Mr. MUSKIE. The Senator has been posing many questions to the proponents of the bill. I assume he includes the Senator from Maine in his references. If the Senator is interested in answers to those questions from the Senator from Maine and is not simply posing rhetorical questions, I should like to tell the Senator that I have to leave the floor for a markup on another piece of legislation at 10 minutes to 10. Thereafter, the floor, will be taken over by the Senator from West Virginia (Mr. RANDOLPH). I simply want to make the point that if the Senator really wishes answers from me, I am available for the next 15 minutes, but not longer.

Mr. ALLEN. In effect, what the Senator is saying is that he would like to have the floor at this time, is that correct?

Mr. MUSKIE. Not unless it serves the purpose of the Senator from Alabama. The reason I put the question is that yesterday, another Senator complained that I was not on the floor to answer the questions that he raised in the time that he occupied the floor. I should not want a similar criticism raised today because of my necessary absence from the floor.

Mr. ALLEN. I am not criticizing the distinguished Senator from Maine. I have great admiration for him.

I assure the Senator that I shall not criticize him now or later.

Mr. MUSKIE. If that serves the Senator's purposes, it is fine with me.

Mr. ALLEN. I commend the Senator for having said, here on the floor, that the amendments contained in section 6 are less restrictive than EPA's present power.

I am delighted to yield the floor to the Senator from Maine to explain.

Mr. MUSKIE. I am happy to comment on that point, Mr. President.

Yesterday, the Senator from Alabama was not persuaded by that argument. Because he was not persuaded by that argument, he supported the Moss amendment, which would have left EPA's present regulations in place.

Mr. ALLEN. That may have been what the Senator from Alabama wanted to do. I do not know why the Senator said that I was not persuaded.

Mr. MUSKIE. The Senator was not persuaded by my argument yesterday that the provisions of this bill on nondegradation are less restrictive than EPA's regulations on those who seek some relaxation of standards. I made the point yesterday that the effect of the Moss amendment was to eliminate the committee provisions and leave in place EPA's regulations, which, in my judgment, were stronger.

The Senator from Alabama was not persuaded by that argument yesterday. His reaction comes 24 hours later. He says he is now persuaded of that fact; therefore, he proposes an amendment that would suspend not only the committee provisions, but the EPA regulations. It is really a little difficult—

Mr. ALLEN. I beg to differ with the Senator.

Mr. MUSKIE. If I might complete my answer to the Senator. The Senator is choosing to use his rhetoric to prove his case and this is as I perceive it. I am not playing games with words.

The effect of his amendment today is stronger than the effect of the Moss amendment for the next year, because it suspends everything.

Mr. ALLEN. That is not correct.

Mr. MUSKIE. It suspends EPA's regulations because the effect of the language of the Senator's amendment is to accept the committee amendment, to make it law, but to suspend its operation for a year. To make the committee's provisions law under the terms of the committee's bill is to replace EPA's regulations. That is what the committee's bill does. The nondegradation provisionsof the committee bill replace EPA's regulation and the Senator says that the purpose of his amendment is to enact the provisions of the committee bill into law, but suspend them for a year

Mr. ALLEN. Leaving EPA's present regulations.

Mr. MUSKIE. Well, it does not. It does not. I read the language of the Senator's amendment and his description of it: "None of which provisions"— that is, the provisions of the committee bill —"shall be implemented or enforced until a period of 1 year shall have elapsed from the date on which the Commission submits the report required of it on the results of its study and investigation." That amends the provision of the bill which makes the nondegradation policy of the bill law. If section 6 becomes law, EPA's regulations are wiped out. There is nothing in the Senator's amendment which preserves the EPA regulations — nothing whatsoever — and there is nothing in the committee bill that preserves EPA's regulations once the committee bill becomes law.

Mr. ALLEN.Will the Senator yield?

Mr. MUSKIE. Yes, I yield for a question.

Mr. ALLEN. Will the Senator then support the amendment if it is amended to provide, as the amendment intends, that the present EPA regulations, as I have stated on the floor, continue their power as far as the legislative history goes? Will he support the amendment?

Mr. MUSKIE. No, I shall not, for other reasons I shall state if I have time.

Mr. ALLEN. I see.

Mr. MUSKIE. Let me make this other point to the Senator. The Senator continually asks a study and offers as justification as a way of assuring the study these amendments which, upon examination, he himself changes.

I ask unanimous consent, Mr. President, for the staff to bring on the floor evidence of the studies that have been taken on this study. I think it will be of interest to the Senators, even though there are not many on the floor.

The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.

Mr. MUSKIE. While they proceed, I will continue. Mr. President, yesterday, the distinguished Senator from Alabama and I were engaged in some discussion as to which was stronger, EPA's regulations or the committee bill. I would be the first to concede that judgments can differ on the answer to such a question. Rather than leave it to a matter of judgment, I ask unanimous consent to have printed in the RECORD at this point a memorandum which analyzes that difference and gives Members of the Senate some basis for making the judgment for themselves.

There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:

COMMITTEE ON PUBLIC WORKS,

Washington, D.C.,

August 2, 1976.

MEMORANDUM

To: Senator EDMUND S. MUSKIE.

From: Leon Billings.

Subject: EPA regulations in the committee bill.

1. EPA's regulations constitute a national land use classification plan. The Committee bill establishes a policy to protect areas of the country with currently clean air from significant deterioration by limiting the amount of change in air quality which can result from new major emitting facilities without a future congressional review of this policy.

2. EPA's system vests with the Administrator of EPA the authority to review and veto any location of any major emitting facility in a state on the basis of the administrative judgment by EPA that increments will be exceeded. Under the Committee bill the Administration would have to carry this burden in a court.

3. EPA's system applies to all areas of the United States unless at a particular site the ambient standards for particulate or SO2 are being exceeded. The Committee bill only applies to areas outside the portions of air quality control regions which exceed standards. The state decides which portions of those regions should be subject to the nondegradation procedures.

4. Under the EPA regulations the manager of any Federal lands anywhere in the United States could unilaterally decide at any time that those lands regardless of size should be subject to pristine protection and stop projects where site preparation had begun. Under the Committee bill such regions would be known on enactment or could only occur with a joint determination of State and Federal governments.

5. Under the EPA regulations no development could occur near so called Class I regions if the Class I numbers would be exceeded. Under the Committee bill such development could go ahead after the owner showed that construction would not interfere with air quality values.

6. Until the litigation regarding the basis for the current regulations is resolved every facility in the United States will be constructed under a cloud — not just those which emit SO2 and particulates — but those which emit the four other pollutants which the environmental suit alleges should be subject to significant deterioration provisions. This includes automobile traffic and other sources that emit auto related pollutants.

7. In the absence of congressional action the court could define an entirely different approach to the Clean Air Act requirement to "protect and enhance" air quality. And the legislative history of the Clean Air Act clearly supports a requirement to prevent significant deterioration.

8. Under EPA regulations all plants will be built under a cloud until a state adopts a nondegradation procedure unless the plant applies for and receives a Federal permit and demonstrates that no Class II increments will be exceeded. The Administrator may unilaterally require the source to also show that Class I increments will not be exceeded because of proximity of Federal land.

9. Under EPA regulations there are three classes of clean air regions on top of two classes of dirty air areas — thus creating a complex land use classification system. Under the Committee bill there are two classes: non-attainment areas where standards are being exceeded; and clean air regions. And there is a procedure to protect the air quality values of national parks and wilderness areas.

10. In sum: The difference between the two bills can be summed up this way: uncertainty versus finality; simplicity versus complexity; State versus Federal control. The Moss amendment will leave uncertainty, complexity and Federal control. The Scott amendments would lead to uniform dirty air.

Mr. MUSKIE. I think the words "stronger" or "weaker" are not sufficiently precise to really describe the differences between the two.

Now, there is in front of me, Mr. President, a cart which contains a part of the committee files on the subject of nondegradation, automobile controls, and transportation controls. About half of this material is on the question of nondegradation and it includes several of the studies on this subject that EPA has made over a period of 4 years.

At some point, Mr. President, the process of study has to be resolved by some decisions on policy.

The EPA studies were in connection with its rulemaking powers. So it was a structured study conducted all over the country, in hearings all over the country, in which proponents of nondegradation policy and opponents had equal access to the hearing process.

Those hearings were on the public record, transcripts were kept, all of that study is available and, as a matter of fact, it was in part because the study period took so long, that suit was brought to mandate EPA to institute some nondegradation regulation because the law required it. The court finally mandated it, and it was on the basis of these hearings that EPA's regulations were finally developed.

They, of course, were immediately taken into court by industry, and by environmentalists who wanted stronger regulations.

It was at that point that the Committee on Public Works entered the picture with hearings of its own, extensive hearings.

Our work has taken a process of almost 2 years, and the markup sessions which began in June, a year ago June, and continued for 9 months, resulted in at least seven committee prints on nondegradation, committee prints which were produced and circulated so that they might stimulate comment from opponents, from whatever source.

We published one committee print before the congressional recess of last year in July, knowing that we were going out for a month, and in that month we solicited reactions from those who had any questions at all about that committee print. It was that committee print that reflected EPA's regulations, more than any other print, and that is when we got the buffer zone maps, to which industry then subjected the country, and which produced that map which was on the floor yesterday which was a complete distortion of the provisions of the committee bill.

That is the kind of process through which we have gone. The Senator from Alabama says, "Well, let us have still another study of a year."

I mean, it is a dilatory request. I do not charge the Senator from Alabama with that motivation, but I have dealt too long with those who welcome that kind of an amendment of the committee bill to describe it as anything else. They have dragged their feet, they have delayed this process, they have resisted the Clean Air Act, they have resisted nondegradation, and they have resisted every form of regulation. Now they have made their true purpose clear. They do not want any regulation in the clean air areas of the country, and they intend to prevent it if they can because, they say, national primary and secondary standards are good enough.

Well, Mr. President, this amendment, although it is somewhat different in form from that which the Senate rejected so overwhelmingly yesterday, is in the same direction, and I oppose it for that reason.

Nondegradation policy was first articulated in Federal Water Pollution Control law in 1967 and incorporated in the 1967Air Quality Act, which stated that a basic purpose of the act was to "protect and enhance the quality of the Nation's air resources." That policy was not altered in the 1970 amendments. Requirements to implement this policy were deleted from EPA's guidelines in 1971. The courts subsequently required EPA to promulgate such requirements, and EPA complied by issuing regulations on December 5, 1974. During hearings in 1973, 1974, and 1975, the committee was urged to resolve this issue through legislation.

As early as July 1973, Carl Bagge, representing the National Coal Association, said:

This is far too significant an issue to be determined by the judiciary. Its economic and social implications are so broad that it cannot and should not be determined by an independent regulatory agency in a rulemaking proceeding as has been proposed. This is an issue which can only be resolved ... by the Congress of the United States.

Mr. Bagge also went on to say that " . . the next move is clearly up to Congress."

The administration also asked Congress to address this issue when it submitted the Clean Air Act Amendments in1974.

Numerous studies have been conducted on the implications of various nondegradation policies. The committee considered these and fashioned a proposal which encourages the economic growth needed for this Nation while providing environmental protection of air resources needed by the Nation. Only the most valuable Federal assets — national parks and national wilderness areas — have been given a special protected status — called class I.

The concept used to protect clean air while allowing adequate growth is a concept of air quality increments. The increments are amounts of new pollution which may be added by new facilities to existing air quality — they provide a uniform national measure of change in air quality which can be allowed in clean air areas, thus eliminating inequities among States while providing some degree of control over the pace of utilization of limited air resources.

The committee received numerous studies of the nondegradation policies. Those studies were an important element in the committee's decision to make substantial alterations in the subcommittee bill. Those changes include:

First. Reduction of the number of areas given pristine air quality protection — class I — from 360 to 131;

Second. Expansion of the State role in all aspects of nondeterioration policy and implementation with concurrent restriction of the Federal Government's role;

Third. Provision of flexibility in determining whether or not proximity to a class I area would affect construction of a new facility, thus eliminating arbitrary buffer zones.

Much of the criticism of the nondegradation do not take into account these and other significant changes which the full committee made in the bill.

IMPLICATION OF REJECTING THE COMMITTEE PROPOSAL

One of the amendments proposed to the reported bill would strike the committee proposal. Another amendment would add a study of the implications of the amendment. I have no objection to this study. It is a logical mandate to the National Commission on Air Quality.

But the companion amendment to strike the committee proposal is both unwise and ill-conceived.

Not only would a reasonable resolution to the nondegradation controversy be discarded but, more importantly, the existing policy and regulation would be left in place. EPA's current regulations are simply not an adequate response to this problem.

The key question is this: What policy will the nation have for the next 2 years — a bureaucratic judicial policy or a congressional policy?

If a motion to strike the committee's proposal and substitute another study — 3 years of studies and thousands of pages of testimony have already been accumulated — the result will be a policy developed and implemented at the Federal level and in the courts with no congressional guidance and no meaningful State participation.

The result will be:

Continuation of the requirement that new facilities in clean air regions obtain Federal permits;

Continuation of the authority of Federal land managers to unilaterally designate any Federal lands as class I without concurrence by states;

Continuation of 60 to 100-mile buffer zones around any such class I areas;

Continuation of Federal authority to reject any State efforts to gain control of this program; and

Continuation of uncertainty caused by lack of congressional policy on this issue.

 

On the other hand, if the Committee proposal is adopted, the result would be:

State rather than Federal permits for new major facilities and State authority to issue or deny permits for facilities even when such facilities are located on Federal land;

No designation except by statute or any areas as class I without the concurrence of the State;

Elimination of Federal authority to second guess State efforts to control this program except through judicial proceedings with a Federal burden of proof;

Resolution of the uncertainty of this policy issue by giving clear guidance to all parties, including the courts, as to the basis of nondegradation policy; and

A chance to test policy in actual implementation rather than continuation of hypothetical studies on paper.

THE NEED FOR AIR CLEANER THAN THE NATIONAL STANDARDS

In addition to resolving current confusion, the nondegradation provision provides needed protection which the ambient air quality standards do not provide. If the national secondary ambient air quality standards were revised to protect against these damages, achievement of the secondary standards in dirty air areas would be extremely difficult.

If the secondary standards were the only restraint, visibility which is now 100 miles or more in some areas could deteriorate to 12 miles. If humidity is high, visibility would be reduced even more.

Pollutants increasingly are returning to the ground in the form of acid rain which damages valuable water and soil resources. A conference was held in the summer of 1975 in Columbus, Ohio, where numerous scientists expressed substantial concern over this impact.

Norway has experienced a substantial decline in its fishery resources which have been attributed to acid rain. A 20-year study in Scandinavia indicates that acid rain has killed fish and caused the ecology of the area to change. Forest growth and yield have declined. Fish population have been adversely affected by acid rain in 75 percent of the high elevation lakes of the Adirondack Mountains.

Pollution at less than the concentration allowed by the national standards has been shown to damage vegetation. Acute injury to spruce trees have been reported when average concentrations of sulfur dioxide were only two-thirds the level allowed by the ambient secondary standards.

Studies indicate that other important crops are also damaged at concentrations cleaner than the secondary standards, including wheat, potatoes, spinach, apples, and white pine.

Exposure to low level concentrations of pollutants have health effects. Studies done in Japan since the establishment of the primary standards in the United States indicate that air pollution concentrations lower than the national standards cause increase in reported illnesses. The National Cancer Institute estimates that 60 to 90 percent of cancer is environmentally caused. The secondary standards as presently established make no consideration of this fact.

An increasing number of studies indicate that pollutants are transported for much greater distances than previously thought. This means that emissions from rural areas contribute to urban pollution problems and vice versa. In its report to the Senate Public Works Committee of March 1975, the National Academy of Sciences expressed concern that emissions 300 miles upwind could still contribute to problems in major cities.

Last year, I asked many scientists for comments on the adequacy of existing air standards. The Administrator of the Environmental Protection Agency, Russell Train, provided useful documentation of the limitations of existing standards in his letter of October 10, 1975:

For particulate matter, an annual mean concentration of 60 ug/m3 and a mean 24 hour concentration of 150 ug/m3 have been set as the secondary standard. Suspended particulates are known to have effects on vegetation, visibility, and manmade materials. At concentrations of 150 ug/m3, visibility may be reduced to as low as five miles.

Plant species vary in their sensitivity to ozone and other oxidants. Toxicity also varies with the composition of the oxidants. Injury has occurred experimentally in the most sensitive species after exposure to 60 ug/m3 of ozone for 8 hours. Crop losses could occur as the result of planting genetically uniform, susceptible varieties. Therefore, the current standard, 160 ug/m3 for one hour, may not protect all vegetation. Little is known regarding the tolerance of plants under field conditions. The presence of other pollutants and changes in environmental conditions may affect the tolerance of plants for photochemical oxidants.

Photochemical oxidants' effects on manmade materials center on the effects of ozone on elastomers and textile dyes. Many elastomers, including natural rubber, are chemically prone to oxidation and therefore, to ozone attack. Cracking of rubber has been noted at 40 ug/m3. Background levels of naturally occurring ozone range up to 100 ug/m3.

The primary and secondary standards for nitrogen dioxide are identical being an annual concentration not exceeding 100 ug/m3.

The current standard appears protective of welfare against damage from direct exposure to atmospheric NO2. NO2 may also cause indirect damage to the extent that it contributes to the formation of the nitric acid in acid precipitation. Nitric acid constituted 24% of the acid in precipitation during 1972–1973 in the Eastern U.S.

Conclusive data are lacking on synergistic effects of sulfur oxides and other pollutants, but preliminary results of work being conducted at EPA's Corvallis Environmental Research Laboratory indicate that a sound basis for standards based on long term growth and processes effects caused by low concentration mixes of sulfur oxides and ozone may be developed in the future.

The phenomenon of acid rainfall is of concern to this agency. A growing body of evidence suggests that acid rain may be responsible for substantial adverse effects on the public welfare. Such effects may include acidification of lakes, rivers, and groundwaters, with resultant damage to fish and other components of aquatic ecosystems, acidification and demineralization of soils, reduction of forest productivity, and damage to crops. These effects may be subject to cumulative buildup as a result of years of exposure to acidic precipitation, but some may also result from "peak" acidity episodes.

INCREMENTS AS THE NATIONAL MEASURE OF CLEAN AIR MEASURE

The Environmental Protection Agency examined numerous methods to define "significant" deterioration. The examination encompassed methods which would have allowed no change in air quality to methods which would result in deterioration beyond current ambient air quality standards.

The approach selected is referred to as air quality "increments" concept which sets forth a precise measure of the change in air quality which any single new facility or combination of new facilities could contribute to the atmosphere in a clean air region.

EPA selected three levels of change or "increments". The first, applicable to areas in which preservation of pristine air quality was determined appropriate, are related to limits on the capability of air quality monitoring and modeling. The third would permit pollution up to the levels in dirty air regions.

The second level — class II — were intended to reflect a balance between air quality protection and reasonable economic growth. To establish these numbers, EPA examined the plants being constructed in the industrial categories most likely to have pollution problems and then projected the probable air quality impact of construction of such sources. The Agency concluded in its documents accompanying its regulations in 1974 that—

Typical coal gasification plants, oil shale processing facilities, and petroleum refineries would not be expected individually to exceed the Class II increments in most areas.

The same statement holds true for the average sized plants in the following categories: Fossil fuel fired steam electric power units, municipal incinerators, kraft pulp mills, iron and steel mills, coal cleaning plants, sulfur recovery plants, lime plants, Portland Cement plants, phosphate rock processing plants; petroleum refineries, by-product coke oven batteries, sulfuric acid plants, carbon black plants, primary aluminum plants, primary zinc smelters, primary copper smelters, fuel conversion plants, and primary lead smelters. For many of these sources, the average sized plant would be substantially lower than the increment allowed.

Studies since that time indicate that the increments allow even more room for facilities than the first EPA studies indicated. Initially, EPA thought that with regard to a 1,000 megawatt plant — much larger than the average plant now in existence — "in a class II area, a similar source could not be located within 25 miles of the first plant."

Analysis in January, 1976 showed that the separation distance had shrunk to 14 miles for high sulfur coal and even less for low sulfur coal — in some cases down to only 1 mile.

Ongoing studies of the Agency indicate that if good pollution control technology is used, "The Senate class II increments will not prevent construction of major, economically sized industrial facilities." In fact, these studies indicate that with such controls, "more than one plant can be constructed at the same site for pulp and paper mills, oil shale plants, refineries and gasification plants."

These same studies indicate that the cost to the electric utility industry will be a 3 percent increase in capital expenditures. The Senate proposal is not expected to have a significant economic impact on other major industrial facilities.

This confirms my earlier statement that each time new studies are completed, they show that more room exists within the class II increments at less cost than previously estimated.

THE NEED FOR CONGRESSIONAL POLICY

The basic policy issues facing the Congress are not ones that will be eased by further study. They are questions that can and should be answered now:

We can and must clarify the role of States;

We can and must define an appropriate relationship between Federal and State Governments relative to these new major facilities;

We can establish now the land areas we value the most and want to protect. We have the knowledge to establish a test to protect those values so long as we maintain a degree of flexibility.

Further study is an important part of the review of any policy as it is implemented. Such study should be, and will be, a companion to the adoption of this legislation. The preferable route will be for Congress to establish the policy, provide the tests contained in the committee bill, and provide the flexibility of State case-by-case judgment in applying the more stringent of these tests. The alternative is to continue a policy that relies heavily on a Federal presence; a clouded policy and a bewildering judicial debate to resolve the issue.

Mr. President, there is something else I would like to include in the RECORD, but before I ask that it be included I will describe it. This, too, is to go to the point of the Senator's request for a study.

This is a memorandum dated last December. It is on the subject of increments.

Now, the mechanism of this bill is the increment approach. It was developed by EPA, and we adopted it after considering other approaches. This memorandum describes, I think, in sufficient detail to indicate the thoroughness with which the committee considered the concept to be useful to the Senate. So I ask unanimous consent that this memorandum on the subject of increments be printed in the RECORD.

There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:

COMMITTEE ON PUBLIC WORKS,

Washington, D.C.,

December 22, 1975.

MEMORANDUM

Subject: Nondegradation — The concept of increments.

INTRODUCTION

This memo attempts to present the arguments in support of the use of increments; these have not been summarized elsewhere, and it was thought that some discussion would be useful.

Arguments against increments are summarized concisely in the industry arguments contained in this briefing book.

Increments as a concept exist independent of any nondegradation provision. Without a nondegradation policy as proposed by EPA or the Subcommittee bill, increments would be the gap between present air quality in an area and the secondary standards. That gap amounts to a pollution quota for any new sources moving into the area or expansion of existing sources.

Without a specific nondeterioration policy, states are required to examine new sources to determine their impact on primary and secondary standards to assure that they do not use up the available air resources. Increments are a measure of anticipated change in air quality. The argument is not whether increments will or won't be used but what the increments will be.

EPA regulations propose the use of three different increments for two pollutants. The smallest increment would be for the highly protected areas (such as national parks). The Subcommittee proposal adopted the first two increments proposed under the EPA scheme. The third category assumedly are those areas in which air quality is already degraded. The areas where development is expected to occur in any substantial degree are to be classified as Class II areas. The increments or pollution quotas for such areas range from ¼ to ½ of the numerical levels established by the secondary standards.

This does not mean that air in such areas will be kept twice as clean as the secondary standard would allow, since the quota, or increment, is to be added to existing air quality. If that existing air quality is already ½ the secondary standard, and the increment allowed under nondeterioration provision is added to that level, than the air quality would be at a level close to the level allowable under the secondary standards.

Industry has argued that secondary standards should govern and all increments be dropped while further study is done. Environmental groups have argued that increments should be established for three more pollutants (nitrogen oxide, carbon monoxide, and hydrocarbons) in addition to two covered by EPA's increments (sulfur oxides and particulates) .

OVERALL APPROACH

Increments provide a very useful management tool for allowing the public and governmental units to plan their economic development and the use of their air resources. Without increments these decisions will be made on an ad hoc basis by the industry as they implement development priorities.

The approach provides a basis against which increased pollution from development projects can be measured prior to such emissions actually exceeding secondary standards. Once such standards are exceeded, the planning options of the public become severely restricted.

1. Regional Equity is improved under an approach using increments. In the absence of increments, areas with extremely clean air and flat terrain have a great advantage over areas with moderate levels of pollution or hilly terrain. In the later two cases, the distance between air quality and the secondary standards may already be a rather modest "increment".

If increments are used, most of the country has an equal amount of air resource to use in its development activities.

Without increments, strong incentives will exist for industry to move to flat terrain and clean air zones where modest pollution control will avoid secondary standard problems for the first sources in the area.

2. Stimulates Better Technology. In the final argument, pollution control is improved only as technology improves and proper planning occurs. Increments provide a strong incentive for new large facilities (with adequate resources and high demand for their products) to improve pollution control technology in order to locate such facilities in clean air regions without exceeding the increments allowed. This is particularly true for a number of large energy related facilities.

If such new plants are allowed to develop in clean air regions with minimal pollution control, there may be inadequate incentive to create better technology. Even the requirement of best available technology is inadequate in cases where the "best" is not very good.

New large sources are the most likely place for substantial efforts in pollution control to occur — they have a large financial base which can absorb pollution control cost efforts. And such facilities are usually the most cost effective in the industry.

Since many industries want to "cluster", or to establish very large facilities, the increments provide an incentive long before the secondary standards would provide a similar incentive.

Given the expected growth of emissions from all sources in the country (a doubling of sulfur oxides emissions is expected in the next 20 years), mechanisms to encourage improved technology will be needed.

3. Minimizes State Competition. Many States feel that high quality air is a valuable resource for their economic development and for the aesthetic enjoyment of their citizens. Such States will always be under substantial pressure to sacrifice this air quality if industry suggests that a neighboring State, with less stringent pollutant standards, would be a more attractive industrial location. While increments do not totally eliminate such competition, they substantially reduce the possibility of significant differences and the inevitable pressures that are attracted to such differences.

4. The Increments are Based on an Extensive Record. The approach identified in the present scheme of increments is the result of one of the longest rulemaking processes in the 5-year history of the Environmental Protection Agency. After the court order was issued requiring such regulations, the Agency proposed four basic choices for public discussion. EPA held numerous regional hearings on these choices, selected increments as the best of these, proposed regulations based on comments received, received further comments, revised the regulations, and promulgated them December 5, 1974.

The plan is superior to any other scheme devised for preventing significant deterioration in clean air areas. The increments were established as a proper balance between the economic development likely to occur and the prevention of significant deterioration of air quality.

5. The Use of Secondary Standards Alone. Such an approach would allow clean air areas to get many times worse before planning and control would occur. By the time this realization occurs, it may be too late. As an area begins to approach the secondary standard, it usually does so because of the momentum of development that is occurring. This momentum will probably carry the area beyond the secondary standards.

The increments provide an early warning system to avoid or reduce this problem.

6. Major Facilities Attract Satellite Growth. Major facilities will be reviewed under the increment approach, but the review of small satellite growth is not required by the provision. The difference between the increment and the secondary standard may well prove to be a "cushion" which can absorb the general area satellite growth without exceeding the secondary standard.

This is less than complete air quality protection, but much better than no control at all until the secondary standard is exceeded. If major facilities are allowed to pollute up to the secondary standard, no such cushion will exist.

7. Modeling is presently done for major new facilities under present State plans to determine whether or not the secondary standards will be exceeded. At present there is no safety margin associated with such modeling. Yet modeling is often in error by a factor of two to three. Modeling therefore is not created by the use of increments, but merely provides an opportunity to apply a safety margin to such modeling. In the event the modeling proves inaccurate, and the increments are exceeded, they will have provided a safety margin which protects the existing secondary and primary standards.

8. The Increments Allow Substantial Development. In many respects the planning aspects of the increment approach preserve the ability to develop. The Class II increments were designed to allow well-controlled sources of the average size now planned for major industrial sources (these averages are much larger than most existing plants) . Such planning preserves options and supplements the requirement for best available control technology. Uncontrolled growth and

minimal pollution control severely restrict the options of the second, third and fourth facility to choose to develop in an area.

CLASS I INCREMENTS

Class I areas are to be highly protected under the Subcommittee provision. The provision mandates that all international parks, and each national park, wilderness area, and wildlife refuge area over 1000 acres be protected as a Class I area. States and Federal Land Managers may designate additional areas.

1. Class I Intrusion Analysis Is Defensible. Sources located outside a Class I area may still have substantial effect upon the air quality over the Class I land. In fact, the maximum impact of a large source is usually a number of miles downwind from the stack. Without this intrusion analysis, a game of pretense would be required — one of pretending that air quality was not worsened when in fact actual air quality readings could deteriorate substantially.

Any proposals to establish an arbitrary buffer zone beyond which no intrusion analysis would be calculated suffer from this difficulty. It would be possible for a large number of sources to feed into the air mass over the Class I area and have a substantial negative impact.

Intrusion analysis actually allows a well-controlled source to benefit from tight control and move closer to a Class I if the source desires to do so and would not exceed the increments.

2. No Adverse Impact. A different approach to a Class I increment would be to require that no facility built within a Class I area be allowed to have any measurable impact on the air quality over that Class I area. Such an impact is impossible to measure and therefore impossible to implement. Monitoring devices are not sensitive to levels below the Class I increments presently established. If this requirement were coupled with intrusion analysis, it would also make extremely large buffer zones. This could inhibit the designation of additional Class I areas.

Pollutants tend to dissipate more rapidly in the first few miles of dispersion; the last amounts of pollution can travel extremely long distances. Mathematical modeling could probably project such an impact, even though actual monitors might not be able to make the measurements required. This would mean the modeling analysis would probably create very large buffer zones.

3. Criteria for Establishing Initial Class I Designations. There are numerous categories of Federal lands which are held as national resources and are of value to all the Nation's citizens, not just the State within which these lands fall. There are basically two ways to protect this Federal interest: (1) Establish in statute some mandatory Class I areas which cannot be reversed by either the Federal Land Manager or the State, but only by subsequent action of Congress; (2) designate some areas Class I initially, and require approval by both the State and the Federal Land Manager to reverse this. Presumably the Federal Land Manager would protect the Federal interest.

It is hard to object to the argument that the Grand Canyon should never be allowed to be reclassified by either a State or Federal Land Manager. One system for determining the categories of land that fall within an initial Class I designation (or mandatory designation) is to examine the kind of experience these lands are to provide for citizens who use such areas. Parks come clearly to mind; so do wilderness areas because of the kind of experience present visitors expect to receive and to preserve resources for future generations. National monuments and recreational areas fall in the same categories as parks but indicates a somewhat lesser national importance.

Mr. MUSKIE. The final point I would make before yielding the floor, Mr. President, is this: yesterday I made a statement that was challenged by the sponsor of the Moss amendment when I said that industry, without exception that I could recall, urged Congress to put in place a congressional policy on nondegradation.

I did not say, as was implied, that industry approved the committee bill. I made it very clear that they do not, but they asked for a congressional policy to eliminate the uncertainties of EPA's regulations.

Here is some more material on this showing the extent of the study made by the Public Works Committee on these subjects.

It was asserted that we delegate much of the authority of EPA to the States. Well, we did both of those things in the committee bill. The effect of this amendment in the form in which it has been modified would repeal the EPA regulations, would normally enact the committee regulations into law, but would suspend them for a year. What would we have for a year, Mr. President? Nothing but confusion, chaos and uncertainty. The EPA regulations are in the courts. EPA is in the process of administering, enforcing, establishing guidelines, telling everybody concerned what they can expect.

Then, those are repealed. Some new provisions are enacted into law, but nobody to implement them for a year. They are on the shelf, they are on ice. Those who have been put into motion under EPA's regulations are now suspended

State authorities, local authorities, industries, citizen groups who are interested in what is going to happen, all of this would be put in suspension for a year, and then at the end of the year, if anyone is under the illusion that the committee provisions would quietly go into effect, quietly go into effect without protest or an effort to compromise them or to dilute them or to repeal them or to prevent their administration by EPA in the courts, simply does not understand the nature of the opposition to this legislative goal, to this public interest goal.

They stop at nothing in their efforts and in their ingenuity to stop the clock on this policy.

This amendment simply gives them another opportunity.

I do not question the Senator from Alabama's motivation. I would never do that with respect to any Senator. But this amendment would give them another opportunity to be able to procrastinate, delay, come up with new ideas to drag the matter through the courts. That would be the effect of this amendment.

Frankly, Mr. President, I think this has been studied enough for us to make a decision about a policy. That policy will not be fixed forever in concrete. There is no problem at all if we put some kind of discipline on growth, in removing that discipline later. But if we eliminate all discipline, it is pretty hard to roll back undisciplined growth that takes place in the interim that would not have taken place but for a policy we subsequently adopt. We have learned that.

I brought this map to the chamber yesterday. Those red areas are the national parks, wilderness areas in excess of 5,000 acres. Most, if not all of them, were established because, among other things, they have air quality values that are in the public interest, for example, national parks with scenic views whose beauty is beyond compare in many instances.

The Allen amendment would deprive them of all protection for the next year. All protection for the next year and he says, "Well, what does that matter?"

I say to the Senator from Alabama, I have seen massive projects move pretty rapidly and if even the foundation is laid we hear the argument, "Well, gentleman, the investment we have already made is so enormous, so great, you ought to grandfather us out of any new policy."

I mean, that is what we have been doing.

Most of the objections to the Clean Air Act that have arisen over the years have arisen because of situations that are in place, and people are afraid that factories in place or powerplants in place will be closed down because of the requirements of clean air.

We are not talking about that with respect to nondegradation. We are talking about not putting something in place until we are sure that it will meet the public interest value of healthy air and other air quality values that over the years the public has demonstrated an interest in.

It is for those reasons, Mr. President, that I object to this amendment.

I yield at this time to my good friend from West Virginia, Mr. RANDOLPH.

Mr. RANDOLPH. Is it permissible for me to comment at this time? Is the Senator yielding?

Mr. ALLEN. I have a modification that I wish to put in that will answer the Senator's objections to the doing away with EPA regulations in the interim.

I have stressed very strongly here that it does not do that, but I will offer a modification that will make it absolutely sure.

But the Senator may go ahead.

Mr. RANDOLPH. I thank the able Senator from Alabama.

I spoke earlier of the fact that we were not actually locking ourselves in. We are not closing down after the horse has left the stable.

Colloquially, I said, actually, the horse moving in and out only to indicate that there is constancy of change. The only constant in legislation is the fact of change because it takes place.

A long time ago, in 1824, Thomas Jefferson in reading statements on many subjects said that as new discoveries are made, new truths are discovered, and opinions change with the change of circumstances. Institutions then must advance also and keep pace with the times.

I think that is applicable here.

The National Air Quality Commission would have a mandate, as I understand it, much like that of the National Commission on Water Quality. It would examine the program in this bill and advise us on any modifications that might be needed.

While this study is being completed, the program authorized by section 6 would be enforced to protect the air in what we call clean air areas and permit well-planned development.

The Allen amendment could lead to increased pollution in those areas during this period of study. I think that is something we must concern ourselves with very carefully.

The suspension proposed in the Allen amendment would actually be 1 year longer if we think in terms of a total of at least 2 years before the Congress would address the issue. It would be 3 years before section 6 would become effective if it were not changed at a later date.

I think this is important to have this continuing study. This is true even though we had previous studies which indicated by the volumes which the Senator from Maine (Mr. MUSKIE) has referred to here today.

Under my amendment, I say to the Senator from Alabama, section 6 would be in effect during this period. I know we are both understanding of that fact.

So, there are these changes which would remain in effect and yet the study would be moving forward as has been indicated.

Mr. MUSKIE. Would the Senator yield?

Mr. RANDOLPH. Yes.

Mr. MUSKIE. I have to leave the floor, but I would like to make this point about the Allen amendment.

As I understand the provision, it does not specify the period of the study, but we have assumed on the Randolph amendment it would take 2 years.

Mr. RANDOLPH. Two years.

Mr. MUSKIE. If it takes 2 years, that, in addition, the Allen amendment provides for suspension of a year after the report of the Commission.

Mr. RANDOLPH. That is what I was saying.

Mr. MUSKIE. So if the study takes 2 years, the suspension adds 3 years in which there will be no protection for these areas.

Mr. President, I have to leave the floor, but I delegate control of such time as I may have to the distinguished Senator from West Virginia.

Mr. ALLEN addressed the Chair.

The PRESIDING OFFICER. The Senator from Alabama.

Mr. ALLEN. I hope the Senator will not leave the floor for just another couple of minutes. Perhaps he will stay for another couple of minutes.

The amendment No. 2101 does not change the provisions of the time for the study which says that it should be not more than 2 years. Of course, it would be a much shorter period.

Mr. MUSKIE. On the record of the Water Quality Commission, I would disagree with the Senator.

Mr. ALLEN. That is what it says, not more than 2 years.

Mr. MUSKIE. But that potential for a full 2 years is very real.

Mr. ALLEN. As to the argument, which I feel is fallacious, that during the time of the study EPA's regulations would be suspended, that is not the intent of the amendment.

It has been stated time and time again that all power EPA now has, say, to the Allen amendment, would continue in EPA and that the section 6 would be suspended for a period of 1 year after the Commission makes its report.

To lay to rest any contention that the Senator is making about the powers of EPA during this interim period, I send a modification to the desk and ask that it be stated.

Mr. MUSKIE. Will the Senator yield on that point?

Mr. ALLEN. Yes.

Mr. MUSKIE. First, I am glad of the modification.

The PRESIDING OFFICER. The modification will be stated.

The legislative clerk read as follows :

In line 6, after the word "investigation," strike the balance through line 9, and insert the following: "and during such study and such one-year period, the present EPA regulations shall remain in effect."

Mr. ALLEN'Samendment (No. 2101),.as modified, is as follows:

On page 2, line 11, strike the period and insert a semicolon and add the following: "none of which provisions shall be implemented or enforced until a period of one year shall have elapsed from the date on which the Commission submits the report required of it on the results of its study and investigation, and during such study and such one-year period the present EPA regulations shall remain in effect.

Mr. ALLEN. That would answer the Senator's question.

Mr. MUSKIE. Now what the Senator has done with this proposal is to put into effect two laws, the present law and the regulations under the law, and the law covered by the committee print.

Which of these two horses does EPA ride? Is it the one that is now in effect, or the one that will come into effect, at the outside, probably at the end of 3 years? How does the agency devise its regulations to come out at the right place 3 years from now, to determine which of these two laws is the law of the land?

Mr. ALLEN. The Senator should not have any difficulty figuring that out.

Mr. MUSKIE. The Senator does.

Mr. ALLEN. He should not have, if he would read the amendment. I do not know whether he bothered to do that or not. If he would read the amendment, he would see that the provisions of section 6 are stayed for a period of 1 year following the report of the Commission.

The amendment says that pending that time, the present EPA regulations would be in full force and effect. So if the Senator would bother to read the amendment, I do not think he would have any difficulty understanding it. Everyone else is able to understand it and I believe he could.

I yield the floor.

Mr. RANDOLPH. I yield such time as he may desire to the able Senator from Idaho (Mr. McCLURE) .

Mr. McCLURE. I thank the Senator for yielding at this time. I also thank the Senator from Alabama for the modification of the amendment. I understood yesterday when this amendment was being discussed that it would take the character of the Scott amendment. I would understand now that it takes the character of the Moss Amendment. I hope that is the correct interpretation.

Mr. ALLEN. No; I do not believe the Senator understands the amendment when he describes it in that way. The Moss amendment would not allow the enactment of section 6. The pending amendment does allow the enactment of section 6, but merely holds the operation and effect of that for a period of 1 year following the report of the Commission. So the uncertainty about whether section 6 would be enacted is laid to rest under the pending amendment. It would be enacted but it would not become effective.

Mr. McCLURE. I understand the distinction the Senator from Alabama is making. The Scott amendment had the effect of suspending both section 6 of the bill and the current law. The Moss amendment had the effect of striking, section 6 but leaving current law. It is my understanding that the Senator from Alabama wants to leave current law in effect pending the study and the 1 year period following the completion of the. study.

Mr. ALLEN. The Senator has stated exactly right. I wish he would pass that information on to the distinguished Senator from Maine (Mr. MUSKIE) who seems to have difficulty understanding it.

Mr. McCLURE. I think the explanation of the Senator from Alabama may be more clear than the language of the amendment. I appreciate the explanation, along with the modification which he has made in the amendment.

I say to the Senator from Alabama, and those who are concerned about the uncertainties in the committee bill, that the committee recognizes there are some uncertainties in the enforcement of the provisions of the bill. That is the reason for the study. I do not think that is any reason to oppose the committee bill. We recognized that we were not able to solve all the problems in this very complex area by the provisions of this bill. But we did solve some of them.

Those who would set aside the committee action and have us go back to the current law ignore the fact that the committee did labor, as has been pointed out here, and did produce something that reduces the areas of uncertainty. It did not solve all of the problems; it only solved some of the problems. Some of the problems remain. That is the purpose of the study, to see how the effects of the committee action really deal with some of those uncertainties that we were unable to solve.

I think the committee would be the first to say that the bill is imperfect; that it is not the final answer; that it does not have every "I" dotted and every "T" crossed; it does not remove all of the possible ambiguities; it does not have all of the answers in this very complex field. But it does provide some answers.

Mr. ALLEN. Will the Senator yield?

Mr. McCLURE. I have very little time. I understand the Senator's desire. If he could yield some of his time, I would be glad to enter into a colloquy, but we have such little time that I hesitate to yield on our time.

Mr. ALLEN. I understood we had 15 hours, but I guess that will be a short time.

Mr. McCLURE. We have 15 hours to encompass a great number of different issues. I understand that. I would like very much to indulge the Senator and engage in a colloquy, if that were possible, because I think the record would be clearer as to what the committee intends.

The committee bill, and the committee in its actions, sought to answer some of the very difficult questions that deal with baseline data; that deal with the kind of modeling as to the buffer zones around the class I areas. EPA regulations can only deal with that peripherally. They are dealing with that, but there is great uncertainty in it. We have removed some of that uncertainty.

Let me reply to one of the things the Senator from Utah raised yesterday in regard to the pink zones on the map, which the Senator used in illustration of his argument.

Those zones are airshed regions, air quality regions. If there is one small zone of pollution within the entire region, it would show on the Senator's map as a shaded region.

We allowed the States, under our bill, to establish areas within the regions where we would deal with that area of pollution without affecting the decisions in the entire air region. That is an improvement. It is a removal of one of the ambiguities and uncertainties.

I cite that as only one example of many in which we sought to confine the uncertainty that now plagues everyone in the country in this field, and confess, in doing that, that we have not been able to solve all of the problems.

The committee was unable to agree on many issues. The bill does not contain all the language that I would have had in it, but it is an improvement over the current status. To suspend the provisions of section 6 and leave in effect the hiatus in which we find ourselves now seems to me not to be a service to anyone, but a disservice to the public interest as well as to the individuals or individual companies that may be affected by the provisions of this legislation.

I must respectfully oppose the Allen amendment because I think it betrays a misunderstanding of the choices that we are confronted with, existing law on the one hand or the improvement which is in the committee bill on the other hand.

We are not offered the choice of the best of all worlds as against the committee bill, as imperfect as it may be.

I thank the Senator for yielding this time.

Mr. STAFFORD. Mr. President, will the Senator from West Virginia yield?

Mr. RANDOLPH. I yield 3 minutes to the distinguished Senator from Vermont.

The PRESIDING OFFICER. The Senator from West Virginia has only 2 minutes remaining.

Mr. STAFFORD. I thank the distinguished Senator from West Virginia, the chairman of the Committee on Public Works, for yielding.

Mr. RANDOLPH. Two minutes is all we have.

Mr. STAFFORD. Mr. President, I shall not burden the Senate with further discussion on the issue of significant deterioration. By heavy majorities, the Senate yesterday twice rejected amendments in intent very close to this one. The Senate has decided the issue of significant deterioration. It has stated in the clearest terms that it believes that we need a national policy to prevent significant deterioration, and it believes that such a policy should be articulated by the Congress, not by the courts and EPA. Our bill does that.

Mr. President, the Senate bill provides a flexible approach, giving considerably more authority to the States. The Allen amendment, I suggest, restores the bureaucratic regulations of EPA several years.

Mr. President, I think the committee's approach is superior, and I respectfully urge the defeat of the Allen amendment.

I yield back such time as I may still have.

The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Alabama.

Mr. ALLEN. Mr. President, how much time remains to the Senator from Alabama?

The PRESIDING OFFICER. The Senator from Alabama has 50 minutes.

Mr. ALLEN. I yield 5 minutes to the distinguished Senator from Utah. If he needs more time, I will yield that.

Mr. MOSS. I thank the Senator from Alabama for yielding to me, and I do appreciate his courtesy in according me this opportunity to express my approval of the amendment he has now submitted, and which is now under discussion.

The Senator from Alabama was active in the debate when this body considered previous amendments on the nondegradation of air section of the act, and it seems to me he has evolved now an amendment that should be acceptable to the sponsors of the bill as well as others.

The amendment of the Senator from Alabama, as I understand it, provides that section 6, which does set a national policy, as the proponents have constantly said must be done, permits the enactment of section 6, so the statement of policy is clear, but it stays the implementation of that section until such time as the study has been completed that will tell us — all of our people, our industry, everyone — what the effects of that policy are going to be, and then the policy, unless we wanted to amend it at some point, would come into force and effect just as written.

But in the meantime, to get over this argument that there would be a gap or a hiatus, which I heard the Senator from Idaho arguing for as he supported the Scott amendment yesterday, instead of having a hiatus when all regulation is pushed aside, the Senator from Alabama provides that we continue as now under the regulations in effect by EPA, and, of course, court actions that interpret those regulations are the law of the land at this time, so they would remain in effect.

So we would not have any great disruption. We would be going along as we are going now. I would be first to admit it is a little bit uneven, and I wish we could have everything clarified. But the fact that it is uneven and we are having problems indicates that we need the study, and we need the study before we shift over from what the present law is to what would be set out under section 6 of the bill.

The Senator from Maine was arguing that industry has been saying to Congress "Will you eliminate uncertainties?" Well, I think the amendment does eliminate uncertainties. It says:

Here is the policy that will come into effect after the study is completed. In the meantime, whatever is in effect now remains to govern what is done regarding air purity, and therefore as much certainty as can be provided is provided.

The one key thing is to find out where we are going by the study that is provided for in the amendment. It seems to me that the proponents of the bill have been in a divided position on this matter. They have argued strongly that this section must be put into effect now, and then the Senator from West Virginia has an amendment saying "We will begin the study thereafter, but we have shifted already to section 6." So the study thereafter, if it comes along, and if it finds flaws in section 6, would require us to go back and have hearings, hold legislative hearings as we talked of before.

So it seems to me, as it did yesterday and before when we talked about the matter, that we again are putting the cart before the horse. We want to fix the policy that is going to be there, and fix the standards which will be enacted, before we know what we are doing.

There has been some discussion about whether there has been enough studying made, and I suppose in this city, where we have lots of commissions and lots of studies that have little effect on legislation, no doubt some feel that we will just have another study thinking of it as a delaying thing.

I can understand, therefore, that the Senator from Alabama puts a limit on the time in which the report must be made. The amendment mandates that the study must be completed in "not to exceed."

So we have a limit.

Under the arguments of the committee and the proponents of the bill, there have been admissions that we are still uncertain, that we still do not know how this is going to work out. It is pleaded that we need to give a little more flexibility to the States, that maybe the States, in their actions, can eliminate some of the inflexibilities that may crop up in this matter, such as the map showing pollution zones that was put up yesterday.

I made it very clear when I put that map up that it is based on data EPA itself publishes, and I made it very clear that at this time it is the only data we have. It is shown by EPA that way. When you plot it on a map, that is the way it looks, which again indicates some of the problems which we are still having.

Again let me say — and I have had my time to make my position clear, I think — that the reason I support the Allen amendment is that I think it will move us toward a policy in regulation of clean air which will enable us to consider other factors, such as employment, growth of industry, management of land — all of the other factors that ought to be considered before we lock in just one particular facet of our environment.

Everybody wants clean air, and we want it as clean as it can be. We want to get it to the highest degree possible.

The PRESIDING OFFICER. The Senator's 5 minutes have expired.

Mr. MOSS. May I have 2 more minutes?

Mr. ALLEN. Yes.

Mr. MOSS. We want to reach the highest degree of purity in the air. But we cannot look just at that alone. We have to look at what that means in the tradeoffs for other things. That is what the study is supposed to tell us.

It will tell us what this means in various areas of the country — what places would be precluded, for example, from raising pollution by a certain given amount, because they would bump into the standards, then, of the Clean Air Act.

The Senator from Maine made quite a statement about "Well, if these get started, and they are put in place, then you cannot change anything, you have grandfathered them out of regulation."

I do not think it is at all possible that this could happen within a year's time. Second, I would say that in view of the experiences we have had in the western part of the country, the opposite is true.

The hold back in doing these things has been based on the threats of litigation and opposition that have been raised to those who were concerned about the air quality and what might happen if there were any kind of industrial or economic development.

So I support the Allen amendment, and I do hope that my colleagues in the Senate, having looked at this matter and reflected on it, will see that this is the sensible way to go. The issue is not today clean air and dirty air. The issue is whether we are going to have continued balanced thought development in this country as we must have if we are to remain a viable and expanding population in this land.

So I commend the Senator from Alabama, and I am very happy to support his amendment.

Mr. ALLEN. I thank the Senator.

ADDITIONAL STATEMENT

Mr. BAKER. Mr. President, I do not intend to delay the Senate's vote, but I do wish to note that the Senate yesterday twice rejected amendments that were very close to this one in intent.

We have resolved the issue of significant deterioration. We voted, in the clearest terms, that we believe that there is a need for a national policy to prevent significant deterioration. We believe such a policy is better when detailed by the Congress, rather than the courts and EPA.

Mr. President, I urge the defeat of the Allen amendment.

The PRESIDING OFFICER (Mr. MORGAN) . The Senator's additional 2 minutes have expired.

The Senator from Alabama has the remaining time. Does the Senator wish to use it?

Mr. ALLEN. Mr. President, a parliamentary inquiry.

The PRESIDING OFFICER. The Senator will state it.

Mr. ALLEN. The time allotted to me does not necessarily have to be consumed on this amendment. It is time that I may use at any stage of the bill. Is that not correct?

The PRESIDING OFFICER. The Senator is correct.

Does the Senator wish to use any additional time on this amendment?

Mr. ALLEN. I do not care to use any additional time on it.

The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Alabama. The yeas and nays have been ordered. The clerk will call the roll.

The legislative clerk called the roll.

 

The result was announced — yeas 23, nays 59, as follows:

[Roll call vote tally omitted]