August 4, 1976
Page 25568
Mr. STEVENS. Mr. President, the "significant deterioration" provisions of the proposed clean air amendments could make it extraordinarily difficult if not impossible to develop and transport oil and natural gas and other energy resources from presently untapped and enormous reserves in Alaska. Such projects as the gas line from Alaska's North Slope, irrespective of the route chosen, could be substantially impeded because of support facilities. That is, gravel pits, electrical power plants needed to build and maintain life support in Arctic and sub-Arctic conditions for construction workers and their dependents could not be built. I submit an amendment which will correct this situation by allowing Congress to decide whether a new national park or wilderness area or any part thereof should be designated as class I or class II.
The existing national parks and wilderness areas which would be classified as class I at the date of enactment of this legislation should it become law, probably will not substantially hamper oil and natural gas development. However, sometime during the next Congress we will consider the disposition of the so-called d-2 lands in Alaska. As a result of the passage of the Alaska Native Claims Settlement Act, 83 million acres of Alaska's land has been set aside and proposed for inclusion in the four national land systems — the National Park System, the National Forest System, the National Wildlife Refuges, and the National Wild and Scenic River System. The administration has proposed 83 million acres as additions to those systems. Other groups have proposed over 100 million acres for inclusion. Virtually all these lands would be studied for designation as wilderness and many acres would be eminently suitable for wilderness designation. Under the present language of this bill, all those lands would become class I lands.
The effect on the Nation's future would be staggering. Alaska has estimated reserves of 76.1 billion barrels of oil, 439 billion cubic feet of gas, and hundreds of billions of tons of coal.
Under the existing provisions of this act, an unknown but great amount of those resources may be unavailable for national use. Since class I land managers can prohibit activity in the areas outside their boundaries which might degrade the air quality over the Federal area, it may be impossible to construct access roads, mines, generating systems, petrochemical plants, railroads, communities, and the variety of other projects which will be needed to allow America to use the resources of her largest State. In this time of diminishing supplies of energy when we are dangerously dependent on foreign sources, the United States can ill afford such a drastic limitation on the development of its resources. Alaska is the last large Federal land holding that we have, and it is from Alaska that most new national parks and wilderness areas will be created.
But it is also from Alaska that our energy needs of the future will be met.
Another important factor to be considered is the effect this act could have on the lands the Alaskan Natives are receiving under the Alaska Native Claims Settlement Act. The creation of enormous new parks, wilderness areas, wildlife refuges, and national forests with new land managers having authority as they would under the bill, to control development over vast areas, would severely limit the Natives rights to use their own land. It would be most unfortunate if we left it up to Federal and State land managers to determine what Congress intended when we passed the Claims Act. Congress should have the final say about what lands are in which class to protect the rights of Alaska's Natives as well as to insure the proper balance between environmental protection and resource development.
My amendment would allow Congress to decide whether future parks and wilderness areas or parts thereof should be designated as class I or class II. It should be the responsibility of Congress to balance the national objective of maintaining our beautiful wilderness areas against the pressing need to develop domestic sources of energy. I hope that each Member of the Senate understands that I love the wilderness areas of my State. Alaska's natural beauty is what makes her a great State. However, the pressing need for energy independence must be considered when classifying the 83 million acres in my State which may be withdrawn for parks and wilderness areas. I urge support of this amendment which would place the responsibility of classifying new parks and wilderness areas as either class I or class II upon the Congress.
Briefly, Mr. President, this amendment will provide that Congress, as it creates the new wilderness areas or new national parks, must designate those parks, wilderness areas or portions thereof as class I or class II.
Congress could at this time provide the mechanism which the committee originally intended, namely, that the manager of the Federal area, and the State acting through its designated official, would classify the new park or wilderness area. Under the committee proposal each time we created a new park or a new wilderness area Congress could determine whether the area would be classified as class I or class II or, in fact, declassify it.
In view of the fact we have very large proposals to withdraw very large areas in Alaska, we feel that Congress ought to make the determination as to what part of those areas or the whole area, if it wishes to do so, should be class I or class II.
I have discussed this with the chairman of the committee and the manager of the bill, and our staffs have worked together. I have also discussed it with Senator JACKSON, as the chairman of the Interior and Insular Affairs Committee.
This seems to us to be the best course to pursue in the future, and I would be grateful to the chairman if he could accept this amendment.
Mr. GRAVEL. Mr. President, will the Senator yield? I have joined not only as of record as a cosponsor but because of the fact that it was setting up a new category which was very far reaching, and the committee chose not to approve this.
The motivation for that effort was the fact that with the selection or set-aside to be made by Congress that the impact could be quite horrendous on the State of Alaska, and because it was so important, it should not be left in the hands of lower level bureaucracy. Congress is going to devote a lot of time in the determination in the State of Alaska involving almost 100 million acres, and there is no question in my mind that as the Interior Committee proceeds in determining the use they want to have take place with respect to this land, they will be the most qualified group of individuals, and certainly the highest ranking individuals in our Government to make a determination not only with respect to the land use but with the indirect determinant of land use, that is, the quality of air that the area will have.
So I think this is a very fine compromise, and I am hopeful the committee will accept it. I am hopeful that the people carrying the burden of the bill will accept it because it is a compromise that addresses itself particularly to our unique problem, and it is a problem that is a one-shot type of situation that will occur as Congress adjudicates disposal of these lands in the next 2 years. I think the committee can handle it very adequately.
Mr. MUSKIE. Mr. President, with regard to new national parks and wilderness areas created after enactment, I think the committee expects that many of these areas will be classified as class I or II in the enabling legislation. Senator STEVENS' amendment simply requires that this expectation become a certainty. Congress will decide. The classification will not be left to the State and Federal land manager.
One advantage of this approach is that the opponents of the creation of new parks and wilderness areas will not be able to argue that the park or wilderness should not be created because an automatic class I designation would accompany that creation.
In accepting the amendment, it is the committee's intention that the presumption be that new parks and wilderness areas would be classified as class I areas, and that only under unusual circumstances would Congress designate the area as class II. The committee intends that during the consideration of creation of these areas, the Federal land manager provide Congress with full information regarding the air quality related values associated with the area so that Congress can make its decision with full knowledge.
I am ready to accept this amendment.
Mr. STEVENS. I thank the Senator from Maine.
Mr. BUCKLEY. Mr. President, I also want to express my approval of this amendment. While I believe the bill, in its present state, provides sufficient flexibility to meet the problems addressed by the amendment, I see no reason why the bill should not be amended as suggested by the Senator from Alaska. Certainly he has pointed to some of the special problems to be faced by the State.
Also, I understand that environmental groups believe a case-by-case determination, as foreseen in the Stevens amendment, would probably give us a very reasonable and workable framework within which to act in the future.
The Congress will have the full information with respect to the values to be protected and the areas to be set aside in the future.
By accepting the Stevens amendment, we might avoid some of the impediments that might otherwise exist to preserving land.
So I commend my friend for calling this to our attention.
I urge its adoption.
Mr. McCLURE. If the Senator will yield briefly, I want to support the amendment, also, for a variety of reasons that my colleagues on the committee have already set forth.
This is a matter we discussed in the committee. Without some understanding as to the manner in which they would be handled, the automatic class I designation could be a real impediment in the creation of some of the parks that I am sure we would want to create.
I think the procedure set forth in the Senator's amendment is appropriate and I fully support it.
Mr. STEVENS. Is there any further time we have to yield back?
The PRESIDING OFFICER (Mr. BIDEN). There is 1 hour on each amendment.
Mr. STEVENS. I yield back the remainder of my time.
Mr. MUSKIE. I yield back the remainder of my time.
The PRESIDING OFFICER. All time having been yielded back, the question is on agreeing to the amendment of the Senator from Alaska.
The amendment was agreed to.
Mr. STEVENS. Mr. President, I move to reconsider the vote by which the amendment was agreed to.
Mr. MANSFIELD. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
AMENDMENT NO. 2089
Mr. BUMPERS. Mr. President, I call up my amendment No. 2089 which is at the desk.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
The Senator from Arkansas (Mr. BUMPERS) proposes amendment No. 2089.
Mr. BUMPERS. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Delete lines 18, 19, and 20 on page 11 and insert the following: "all international parks,and each national wilderness area, and national memorial park which exceeds five thousand acres in size, and each national park which exceeds six thousand acres in size".
Mr. BUMPERS. Mr. President, I can summarize this in about 60 seconds.
As everybody knows, the Clean Air Act provided that national parks and wilderness areas that have an acreage over 5,000 acres will be considered class I areas.
I have a problem in my home State, which I am sure the committee did not think about at the time, and that is that the city of Hot Springs, the fourth largest city in my State, has a national park.
It presently has 4,500 acres in it and I mistakenly told the Senator from New York a moment ago it was contemplated an additional 1,500 acres would be acquired. That is not the case.
The case is that it now has 4,500 acres, but the authorization is 5,500 acres. There is an ambiguity in the bill as to whether or not that authorization would bring Hot Springs under the bill.
My amendment simply raises the level from 5,000 acres to 6,000 acres for national parks alone.
The National Park Service tells me that Hot Springs National Park is the only park that would be affected by that amendment.
But to force a city in my State to be a class I area would absolutely prohibit any such further development in the city.
Mr. MUSKIE. Mr. President, the Bumpers amendment only affects one national park; that is, Hot Springs, Ark. It appears that there is no opposition to adoption of this amendment.
Hot Springs is a unique situation. The park is in the middle of the city. That kind of situation is adequately protectedby the class II increment, which will still apply to the area after the adoption of the Bumpers amendment.
The growth of the city of Hot Springs around the park creates a situation very different from parks such as the Grand Canyon, Bryce Canyon, or Glacier National Park. Had the committee known of this situation, we would have accommodated this concern in the reported bill. For that reason, I am willing to accept this amendment.
Mr. BUCKLEY. Mr. President, I believe the existing committee language could be clarified through legislative history as not applying to Hot Springs, because we are talking about parks at the time of passage that exceed 5,000 acres.
Since nothing will change, in my estimation, I certainly will not object to this amendment.
Mr. BUMPERS. I thank the Senator.
Mr. McCLURE. Mr. President, I will not object to the amendment. I think there is a further protection in the bill. Even though it is in a class I area, the pollution would be considered in relation to the air quality related values for which the park was designated.
There is an administrative means of meeting the problem, but I have no objection to the amendment of the Senator from Arkansas.
Mr. BUMPERS. I thank the Senator.
I might add that the members of the committee present here can feel free to handle that in conference, however they choose. If they want to clean up the language, remove the ambiguity, or accept the amendment, either way. But I do want to alleviate the minds of 40 to 50 thousand people who are concerned about this.
Mr. MUSKIE. I appreciate that.
The PRESIDING OFFICER. Is all time yielded back?
Mr. MUSKIE. I yield back the remainder of my time.
Mr. BUMPERS. I yield back the remainder of my time.
The PRESIDING OFFICER. The question is on agreeing to the amendment ofthe Senator from Arkansas.
The amendment was agreed to.
AMENDMENT NO. 2088
Mr. TOWER. Mr. President, I call up my amendment No. 2063 and ask that it be stated.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
The Senator from Texas (Mr. TOWER) proposes amendment No. 2063.
Mr. TOWER. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 71, line 20, strike the period after "section" and insert in lieu thereof a comma and the following: "nor shall any such warranty be invalid on the basis of the installation or use of any air conditioning system not installed in the factory of the vehicle manufacturer, where the particular vehicle or engine in which such air conditioning system is installed is certified in accordance with section 206(a) (3) with an allowance for air conditioning or similar equipment to be subsequently installed.".
On page 70, line 4, insert "(a)" after "Sec. 26.".
On page 70, after line 12, insert the following new subsection:
"(b) Section 206(a) of the Clean Air Act is amended by adding the following new paragraph:
"'(3) Each new motor vehicle or new motor vehicle engine shall be certified to conform to the regulations prescribed under section 202 of this Act for the particular vehicle configuration, anticipated use pattern, and equipment of such vehicle or engine. The Administrator shall certify each vehicle or engine with an allowance to assurance conformity with such regulations for air conditioning or similar equipment to be subsequently installed. Such vehicle or engine shall be deemed to be covered by a certificate of conformity only if no equipment is added or other modification made which is not within the allowance provided for in this paragraph.'."
Mr. TOWER. Mr. President, the amendment which I have submitted corrects a deficiency in the Clean Air Act which will become apparent once the provisions dealing with performance warranty testing are applied in 1977.
Up to this time the problem has not faced the aftermarket air conditioning industry because these testing provisions of the Clean Air Act have not been applied.
The problem which faces this industry is that because of an ambiguity in the original act, and subsequent regulations promulgated by EPA, there exists the potential for pressure being applied by auto manufacturers on their franchise dealers to purchase and install only those air conditioning units which are manufactured by the automakers.
The law presently seems to allow the voiding of an auto emission warranty by the manufacturer if equipment is added to the car after the car is purchased, if that equipment adversely impacts on the emission control system's efficiency.
In and of itself, this is no cause for concern, and in fact is a highly commendable part of the act.
However, EPA regulations dealing with defects reporting procedures, which were adopted subsequent of the Clean Air Act, complicate the situation, because among those items of equipment covered under these regulations are air conditioning units.
The manufacturers of these aftermarket air conditioning units are concerned that when section 207 of the act goes into effect, it will be possible for the automakers to exert pressure on their franchise dealers — who now buy some 2 million of these aftermarket units each year — not to purchase and install these units lest they lose the warranty protection on the automobile's emission control system.
The air conditioning market itself is highly competitive, and it is a constant struggle for the aftermarket manufacturers to succeed against the enormous advantages of the automakers, who of course would like to build, sell, and install every air conditioning unit in the country.
I do not believe it is wise to leave the door open on the potential for abusing the law in a way that destroys this competition, particularly since there is no foundation to the argument that an air conditioning unit of any type could in and of itself cause an emission system to fail during performance testing.
After this problem was brought to my attention, I had my staff discuss it with EPA, which reported essentially the following:
First, it would be possible for a representative of an automaker to apply pressure on the dealer not to purchase non-factory built airconditioners, by misconstruing the regulations covering defects reporting.
Second, there would be no legal basis for such an argument.
And, third, that it would be likely that before a legal test case could be completed, the damage to the aftermarket industry would be irrevocable.
According to EPA, the argument that a performance warranty could be voided by the manufacturer solely for the installation and use of an aftermarket air conditioner rests on two false assumptions.
One of these assumptions is that aftermarket air conditioners impact adversely on the emission system, and that factory units do not.
The second fallacy is that the performance test envisioned at this time by EPA would be able to detect the impact of the air conditioning unit on the emission control system.
The facts, according to EPA, are that the majority of these aftermarket air conditioning units may possibly be superior to the factory units in terms of the relationship between the operation of the air conditioner and the operation of the emission control system.
Further, according to EPA, if an engine or automobile is certified and designed for air conditioning, the impact of the air conditioning unit has already been calculated and compensated for, whether the unit is built in the factory or not.
I was further advised by EPA that under the performance testing procedures envisioned at this time, which are due to go into effect in 1977, the automobile will be tested without the possibility of detecting the impact of the air conditioning unit.
The reason, Mr. President, is that there are two ways in which an air conditioning unit can affect the performance of an emission system. There is a power drain on the engine which accompanies the use of the air conditioner, and there is the weight factor of the unit itself.
However, neither of these two factors are present, according to EPA, under the performance testing procedures to go into effect next year.
In sum, Mr. President, EPA has assured me that the problem does exist, and that it is inequitable to those who manufacture, sell, and service aftermarket air conditioners.
Although the industry had suggested language which they felt would solve the problem, I asked my staff to request drafting assistance from the Public Works Committee, in order to insure that the language would both solve the problem and at the same time avoid creating another.
This is a highly complex law, and the various provisions are interdependent. I wanted to make sure that the solution truly was a solution.
I want to take this opportunity to thank Leon Billings, Phil Cummings, and Hal Brayman for assisting my staff by drafting appropriate language which would provide relief for the independent air conditioning industry. The amendment, I believe, is consistent with the intent of the Clean Air Act, and enhances the performance testing provisions.
It is my understanding, Mr. President, that the managers of the bill will accept my amendment. I appreciate their consideration, on behalf of the some 15,000 Texans who depend on this aftermarket air conditioning industry for jobs and the millions of consumers who profit by the presence of healthy competition in the industry.
Mr. MUSKIE. Mr. President, I am pleased to accept the amendment of the Senator from Texas (Mr. TOWER) .
His amendment allows the installation of air conditioners on automobiles without jeopardizing either the performance or the defects warranty of the existing law, if that model car has previously been certified by EPA with an allowance for the addition of such air conditioning equipment.
This amendment is an improvement in the EPA certification procedure. Under current practice, air conditioners can be installed after the sale of new automobiles without the addition of such power equipment being taken into account in the certification procedure. The likely result is an increase in the emissions of the car above the levels recorded during the initial testing.
Mr. Tower's amendment would protect the investment of the car owner in emission controls by requiring that the possible installation of air conditioners be taken into account during certification. The emission performance which the consumer paid for will be safeguarded from a loophole in the current law.
The consumer's warranty is also protected from possible claims of auto manufacturers that the installation of air conditioners invalidates that warranty. Although it is not the intent of current law that the addition of air conditioners invalidate the warranty, Mr. TOWER's amendment will make this explicit.
Mr. TOWER. The Senator is correct.
Mr. MUSKIE. With that, I am happy to accept the amendment.
Mr. BUCKLEY. Mr. President, I concur with the distinguished chairman of the subcommittee.
It seems to me the amendment that has been submitted is wholly consistent with the one that was submitted last week by the Senator from Tennessee (Mr. BAKER), the Senator from Vermont (Mr. STAFFORD), and myself, and adopted by the Senate.
I believe it clarifies the matter and I urge its acceptance.
Mr. TOWER. I yield back the remainder of my time.
Mr. MUSKIE. I yield back the remainder of my time.
Mr. McCLURE. Will the Senator withhold that?
Mr. MUSKIE. Yes.
Mr. McCLURE. I do not want to belabor the point and I do not object to the amendment. But I would not want the fact that we have accepted the amendment to indicate, by inference, that it was clearly necessary.
I am not certain that it was necessary, because it would not necessarily affect the pollution control equipment, and that is the area toward which this bill is directed.
I have no objection to the amendment. But I do not want to fan the flames of fear that run through a lot of people that have equipment that may be added to an automobile that in no way relates to the air pollution systems.
Mr. MUSKIE. I think that is a very proper cautionary note.
Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. All time having been yielded back, the question is on agreeing to the amendment of the Senator from Texas.
The amendment was agreed to.
Mr. TOWER. Mr. President, I move to reconsider the vote by which the amendment was agreed to.
Mr. MUSKIE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
UP AMENDMENT NO. 302
Mr. CANNON. Mr. President, for myself, Senator LAXALT, and Senator FANNIN, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows :
The Senator from Nevada (Mr. CANNON), for himself and Mr. LAXALT and Mr. FANNIN, proposes an unprinted amendment No. 302.
Mr. CANNON. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 10, between lines 24 and 25, insert the following:
(e) Section 110(a) (2) of the Clean Air Act is further amended by striking out "and" at the end of clause (G) , striking out the period at the end of clause (H) and inserting in lieu thereof a semicolon and the word "and", and inserting at the end thereof a new clause as follows:
"(I) it provides for the granting by the State of variances for emission sources: Provided, That an application for each such variance is made to the State, and the State determines in accordance with criteria established by the Administrator that—
"(i) such source is a facility for the smelting of nonferrous metals and is in an isolated area, will provide control of emissions with a supplementary control system; and
"(ii) complete compliance would cause severe economic hardship on such source.".
On page 10, line 25, strike out "(e)" and insert in lieu thereof "(f) ".
On page 11, line 6, strike out "(f)" and insert in lieu thereof "(g) ".
Mr. CANNON. Mr. President, the amendment I have submitted, with Senator LAXALT and Senator FANNIN for the consideration of the Senate provides for the granting of a variance for emission sources in isolated areas and where complete compliance would cause severe economic hardship on such source. The source would have to provide secondary emission controls capable of avoiding any serious impact on the public health or welfare. It provides time and flexibility in those situations which present economic dislocations.
For more than 40 years the copper smelter at McGill, Nev., has been in operation providing a steady supply of copper to the industrial centers of our Nation and contributing in a significant way to the high standard of living we all now enjoy. For 40 years the smelter has provided the sole economic base for most of eastern Nevada, and specifically White Pine County. The fortunes of Ely and McGill, the two principal towns have risen and fallen in step with the fortunes of the copper industry. When in full production the plant produces some 50,000 tons of copper a year.
Never during the time the plant has been in operation has the purity of the air been unduly annoying. No health hazard to the community or to those working in the plant has ever been documented. Neither has the plant contributed to a diminution of air quality in other areas. The smelter is in a very isolated location. The closest large city is Salt Lake City, Utah, which is some 200 miles distant. The map at the rear of the Chamber illustrates the isolated nature of the facility.
If I can draw the attention of my colleague from Maine to the map, I would like to point out the location of Ely and McGill. The closest town is some 77 miles away and is not as big as the town of Ely. The closest town of any size is Salt Lake City, which is over 190 miles away. Las Vegas is some 240 miles away. Reno is 264 miles away. Elko is 187 miles away, and Wells is 137 miles away. So this area is a completely isolated location.
The residents of Ely and McGill deserve better than to be turned into a new Appalachia. That unhappy possibility is now a reality.
Because there is no flexibility in the present law for less than continuous control systems, the company is faced with the prospect of shutting down the smelter. Earlier this year some 500 mine workers were released and the company has announced another 250 smelter workers will be released by the end of next week, ending the operation for the present. Skilled workers are leaving. Most of the community does not have the wherewithal to relocate as their primary assets — the equity in their homes — is being destroyed. The immediate effect of a shutdown will be to boost unemployment to at least 35 percent and later throughout the county to 50 percent, or more.
Mr. President, the effort of our Nation to clean and protect the environment is the result of a very real and growing problem. Our high standard of living pales when our air and water is fouled and our countryside littered with the end products of our industrial might. I welcome and have supported clean air, clean water, and solid waste control bills. It would be a mistake to turn back on these efforts. However, flexibility is necessary to deal with the serious problem now threatening the economic base of this community in Nevada and other similarly threatened communities. I believe a flexible approach is certainly justified where such dire economic dislocations could occur.
Although the supplemental control system at McGill meets national primary air standards and the State air quality requirements, the EPA has insisted on ever more costly constant control equipment which will, if enforced, mean the permanent closing of the facility.
I commend the committee for its effort to deal with this problem. The committee has set nonferrous smelter operations in a somewhat different position from other emission sources and provides that supplementary control systems are approvable pollution control systems in appropriate circumstances. However, I am not clear that the committee amendment reaches those very facilities most in need of relief.
The bill itself states that "enforceable supplemental emission reduction strategies for existing nonferrous smelters" may be employed. I am concerned that the committee report language may misinterpret what present law requires and close the door on what the bill itself seems to allow. I quote from the committee report on page 17, "The word 'supplementary' means that continuous control technology must be employed as a precondition to using supplementary systems." The report then goes on to say that for older smelters, present practice is to require acid plants and an additional research and development program. It further cites the Ninth Circuit Court decision in Kennecott Copper Corp. against Russell Train as authority for that position.
The position the EPA has taken and is apparently supported by the committee report is not supported, in my view, by the law or by the court decision. It appears to deny the element of economic feasibility as a determination of an acceptable emission control strategy.
I quote from the Kennecott decision: [U]nder EPA's view of section 1857c5(a) (2) (B), (existing sources) need only reduce emissions to the extent necessary to comply with air quality standards. Moreover, existing sources, as opposed to new sources, need adopt only such systems of emission reduction as are economically feasible, so long as interim compliance with air quality standards may be achieved by "other measures."
Here the court was stating its view of what the EPA itself required under its interpretation of the law. Further on in the opinion, the courts states:
As EPA has undertaken to assure Kennecott ... under EPA's interpretation of section 1857c-5(a) (2) (B), EPA could not compel Kennecott to install additional emission reductions at McGill unless it were economically feasible to do so.
The court did, indeed, hold that constant control systems were required by law to the extent they are economically feasible. But it did not establish the requirement that a baseline constant control system was a precondition to a consideration of economic feasibility for relief from further constant control technology. I believe it is imperative that the Senate address the question of the extent to which economic feasibility may be asserted. As I have pointed out, the smelter in McGill is very isolated, it is a marginal operation, and claims it cannot justify even an acid plant but has and will continue to meet all air quality standards through use of a supplemental control system employing dispersion techniques and production cutbacks.
May I ask the distinguished floor manager some questions intended to clarify my understanding of the committee amendment?
Mr. CANNON. The committee bill provides that existing nonferrous smelters may use "enforceable supplemental emission reduction strategies" in addition to any available continuous emission limitations. My first question relates to the procedure by which the decision to permit use of supplemental controls will come about. How would the smelter with which I am concerned obtain permission to use such controls?
Mr. MUSKIE. I would assume that the smelter in question would petition the State for a revision of the implementation plan applicable to it and, if the State approved, a revised emission limitation would be submitted to EPA for approval.
Mr. CANNON. What if the smelter owners decided that any baseline reduction requirement was not feasible?
Mr. MUSKIE. Under current case law, which this bill would not change, the challenge to feasibility would occur at the time the emission limit was imposed — in this instance whenever a case could be made on feasibility during consideration of a new control strategy ineluding use of supplemental controls. It is important to note that this is a very specific exception to provide relief for the kind of facilities with which the Senator is concerned. It is narrow in that it is not available to other kinds of industrial activities and it assumes that the smelter can prove that any combination of supplemental controls and other controls will be enforceable and achieve and maintain air quality protective of health on a constant basis.
Mr. CANNON. What does the word "enforceable" mean in this context?
Mr. MUSKIE. The committee address that question in the report on page 17, as follows:
The use of the term 'enforceable' restricts the use of supplementary systems to those cases where both the Administrator and the State are satisfied as to the reliability and enforceability of a particular system and where the State (or the Administrator) has the resources to oversee such strategies without sole reliance on the source operator's good faith.
Mr. CANNON. Then I can conclude from what Senator MUSKIE has said that if a smelter can clearly demonstrate that any continuous controls would cause severe economic hardship — in this case plant closure — and can meet the requirements of the act as regards enforceable supplemental controls — that would be anapprovable control strategy under the act?
Mr. MUSKIE. Yes.
Mr. CANNON. I thank the Senator for clarifying this point. I believe it will give us an opportunity to not have this area become a second Appalachia, and based on that assurance on the RECORD, Mr. President, I will withdraw my amendment.
Mr. McCLURE. Will the Senator withhold for a moment and yield the floor for a further comment?
Mr. CANNON. I yield.
Mr. McCLURE. I think the point has been very carefully defined, and I have no quarrel with it at all. But I think the further distinction should be made in qualifying this procedure that if a continuous control strategy is used, then intermittent controls would be added to the continuous controls. My understanding is that continuous controls are not applicable in this problem but intermittent control strategies are. That would be the next level of stringency and the next level of exception permitted under this exception of the act.
Mr. CANNON. The reason for the continuous controls to be effective here is initially they had an estimate that an acid plant, for example, of a limited capacity, would cost $23 million. Now the estimate is up over $40 million. The plant is not that economically viable. It is a very low margin of operation. If they have to go to continuous control process, such as a $40 million plant, they cannot afford to operate. They simply have to shut down.
Mr. McCLURE. I wanted to make that further definition simply because plants that do have continuous controls, and add an intermittent control strategy for the period that the continuous controls do not exist, would find it less stringent in application than they would in this particular instance in Ely, Nev.
Mr. CANNON. This plant may have toshut down more than some others, although our weather is so open and clear there that normally we do not have the problem of temperature inversion. We have a low level pollution problem.
Mr. MUSKIE. May I add that this problem has been discussed in committee at considerable length. Some of the reasons which the Senator has stated today have been discussed. I hope this discussion will be further useful.
Mr. CANNON. I thank the Senator very much.
Mr. President, I withdraw my amendment.
ADDITIONAL STATEMENT SUBMITTED
Mr. FANNIN. Mr. President, there is one other copper smelter in this country in the same position as the McGill, Nev. smelter and that is the smelter operated by the Phelps Dodge Corp. at Douglas, Ariz. I am advised that all other copper smelters which process sulfide ore and thus have a sulfur oxide problem are installing or have installed so-called positive emission control equipment.
The Douglas smelter was built in 1902 to process ores from the mines at Bisbee, Ariz. The last of the active mines at Bisbee was shut down by Phelps Dodge in June of 1975. Although the Douglas smelter continues to smelt some concentrates from other Phelps Dodge mines and recycles substantial tonnages of copper scrap, no Phelps Dodge mine depends for its continued existence upon the continued operation of the Douglas smelter. It can, however, serve an important function as a custom smelter for Arizona mines which have no smelting facilities of their own.
I am told that the company has spent some $20 million on air quality control at the Douglas smelter and is currently meeting air quality standards. The economic situation at the Douglas smelter simply will not justify the installation of positive control equipment. It has been estimated that the cost of installing a double contact sulfuric acid plant at the Douglas smelter would be in the neighborhood of $96 million. However, by the operation of an intermittent control system the smelter can meet ambient air quality standards.
If the Douglas smelter is forced to close, over 600 workers would lose their jobs, the economy of the Douglas, Ariz. area would be crippled and the United States would lose between 5 and 10 percent of its total copper smelting capacity.
As in the case with the McGill smelter in Nevada, we are dealing with a very old facility, the rebuilding of which cannot be economically justified.
Mr. LAXALT. Mr. President, this amendment would authorize the States to approve variances for emission sources to utilize supplementary control systems for purposes of meeting ambient air quality standards. But, two conditions would have to be met. The source would have to be in an isolated area where the State could determine that there would be no detrimental impact on public health and a severe, economic hardship must be demonstrated, if continuous controls are required.
Needless to say, I am a strong supporter of this amendment. Not only am I a cosponsor but I have participated actively in many attempts to find remedies for problems caused by EPA's insistence on inflexible emission limitation strategies for stationary sources.
The Kennecott operation in Ely, Nev. is just one example of a source which has been seriously impacted by such inflexile interpretations. As Senator CANNON has noted, the Ely smelter is old, relatively inefficient, and utterly incapable of affording expensive continuous control equipment. I heartily concur with everything Senator CANNON has already stated on this matter. But let me go into somewhat greater detail as to the nature of the hardship EPA's interpretations have caused the Ely area.
Mr. President, the unemployment rate in White Pine County is now well over 25 percent, placing it first among Nevada counties in this rather dubious category.
What is more, although White Pine is not yet the poorest of Nevada's counties, should the smelter be shut down on a permanent basis, it would soon become so with the result that Ely, in the words of the area manager for the State employment security department, would become "another Nevada ghost town."
Yet, EPA is insisting that continuous controls be applied. Literally thousands of jobs are at stake and owing to the isolation of the area and the ability of the smelter to meet air quality standards through the use of supplementary control systems, there would be no adverse public health impact. But still, EPA insists.
Legislative relief is therefore the only recourse. Accordingly, I am most distressed by the committee argument that emission limitation provisions ought not to be altered. As this argument runs, once the provisions are adjusted, they are subject to continuous erosion. However, in view of the seriousness of the situation in my State and elsewhere, it seems to me that flexibility should actually strengthen the provisions.
Thus, Mr. President, the question is both broad and important. Should the emission limitation provisions of the 1970 Clean Air Act be inflexibly applied regardless of social and economic consequences for a particular area? Or, should the Congress set public policy guidelines sufficiently flexible to prevent the drastically inappropriate application of those provisions with very serious consequences for counties such as White Pine?
I urge the adoption of the amendment.
UP AMENDMENT NO. 303
Mr. BENTSEN. Mr. President, I send to the desk an unprinted amendment and ask that it be stated.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
The Senator from Texas (Mr. BENTSEN) proposes an unprinted amendment numbered 303:
On page 86, line 8, delete "fifteen" and insert "sixteen".
Mr. BENTSEN. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BENTSEN'S amendment is as follows:
On page 86, line 8, delete "fifteen" and insert "sixteen".
On page 86, line 13, delete "eleven" and insert "twelve".
On page 86, after line 13, add: "Such Commission shall include four State Governors, who may designate the chief administrativeofficer of the State's air pollution control agency."
On page 88, after line 7, insert: "(7) the extent to which the reduction of hydrocarbon emissions is an adequate or appropriate method to achieve primary standards for photochemical oxidants. Such study shall include
"(A) a description and analysis of the various pollutants which are commonly referred to as 'photochemical oxidants' or chemical precursers to photochemical oxidants;
"(B) an analysis of any pollutants or combination of pollutants which need to be reduced to achieve any photochemical oxidantstandard, and the amount of such reduction;
"(C) the relationship between the reductions of hydrocarbons, oxides of nitrogen, and any other pollutants and the achievement of applicable standards for photochemical oxidants;
"(D) the degree to which background or natural sources and long range transportation of pollutants contribute to measured ambient levels of photochemical oxidants;
"(E) any other oxidant related issues which the Commission determines to be appropriate."
On page 87, after line 7, insert the following new paragraph:
"(2) A report on the results of the study and investigation of the Commission authorized under subsection (a) (7) of this section, together with any appropriate recommendations, shall be submitted not later than two years after the date of enactment of this section. During the preparation of this specific study and report, the Commission shall seek the participation and consultation of the Chairman of the Council on Environmental Quality; the Administrator of the National Oceanic and Atmospheric Administration; the Administrator of the Environmental Protection Agency; and Governors of those States having air quality control regions in which primary ambient air quality standards for photochemical oxidants are exceeded at the time of enactment of these amendments or are projected to be exceeded within the period of the study, or the chief administrative officers of their State air pollution control agencies designated by any State Governor. The Commission may contract with nonprofit technical and scientific organizations, including the National Academy of Sciences, for the purpose of developing necessary technical information for the study authorized by subsection (a) (7) of this section.
Mr. BENTSEN. Mr. President, this is a revision of the amendment I offered Tuesday of last week calling for a study of the strategies proposed for the control of photochemical oxidants.
I had originally intended that this be a highly technical, sharply focused endeavor, and for that reason I had proposed a special body whose sole purpose would have been to undertake it. I have now assigned the effort to the National Air Quality Commission which S. 3219 will establish, though I believe the text of my amendment sufficiently highlights the importance we assign to this study.
Specifically, my amendment calls upon the Commission—
To analyze and describe the various pollutants commonly referred to as "photochemical oxidants;"
To enumerate those which should be regulated and from which the American people should be protected;
To recommend strategies for their attainment;
To determine what effect the control of hydrocarbons will have on oxidant formation and concentrations; and
To clarify the degree to which background levels of oxidants contribute to those concentrations.
This study is to be completed within 2 years.
My amendment will also expand the public membership of the Commission by 1 member, to 12, and assure that at least 4 of those members are Governors, or directors of their State air pollution control agencies. As I have already emphasized in the debate on this bill, I believe that State and local contribution to this study will be invaluable. And, I am pleased that the States will, as a result of this amendment, play a major role in all of the Commission's efforts.
I believe, Mr. President, that the floor manager of the bill, the distinguished Senator from Maine (Mr. MUSKIE), has had a chance to see this amendment, and I think the ranking minority member on the committee has also had a chance to see the amendment. I hope it is acceptable to them.
Mr. MUSKIE. Mr. President, the problem that the Senator's amendment addresses is a very important one, and I think this is a sensible way to approach its study and analysis, and the development of solutions to it. I am happy to accept the amendment. I see no difficulty with it.
I yield to my good friend from New York, the ranking Republican member of the committee.
Mr. BUCKLEY. Mr. President, I, too, am happy to support the amendment that was worked out by the Senator from Texas. Having all of the studies within a single body is important to its effectiveness, and to make sure that we do not have duplications and even contradiction.
I also believe that the specific inclusion of Governors within this body is a very constructive addition to what we had in the committee print.
I would hope that when the President nominates the public members, he would also include professional environmentalists. It seems to me this is also a skilled point of view that ought to be specifically represented on the Commission.
In any event, I am happy to urge the adoption of the amendment.
Mr. McCLURE. Mr. President, will the Senator yield?
Mr. BUCKLEY. I yield.
Mr. McCLURE. I not only support the amendment, I commend the Senator for bringing it in. I think this whole field of photochemical oxidants does need further study, and this amendment strengthens that thrust, as well as, I believe, strengthening the Commission.
I think one of the dilemmas we find in this area is that every time we try to do something, we cause another problem. Getting the lead additives out of gasoline has in some cases required the addition of aromatics to the gasoline. The combination of those aromatics has sometimes resulted in the photochemical reactions toward which the Senator's amendment is directed. Every time we gain a little, we lose elsewhere. We need to know as much as we can about that, so I fully support the Senator's amendment.
Mr. BENTSEN. I thank the Senators who have spoken, and urge the adoption of the amendment.
The PRESIDING OFFICER. Is all remaining time yielded back?
Mr. BENTSEN. I yield back the remainder of my time.
Mr. MUSKIE. I yield back the remainder of my time.
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Texas (Mr. BENTSEN) .
The amendment was agreed to.