June 8, 1977
Page 18045
Mr. CANNON. Yes, this is an amendment with a 4 hour time limitation. May I say I do not anticipate we will take more than 30 minutes on the amendment. Perhaps less.
Mr. President, this amendment is brought about by a very unique type of situation that arises in the eastern part of my State in two cities known as Ely and McGill, Nev.
For years and years, Kennecott Copper has been in operation right out of Ely, Nev. It is a one industry town. The whole town has been dependent upon the mining industry, a big open pit copper mine. The smelter is over at McGill, approximately 10 miles from Ely, which is a company-owned town, again a one industry town, supported entirely by the Kennecott Copper smelter.
This smelter has been in existence since prior to 1910, as will be noted from the amendment. As a cutoff date, on the amendment, the smelter must have been in existence prior to that time. There is some dispute, perhaps, as to precisely when the smelter started, but at least it was operating in 1908 that we know of.
Over that period of time, these two communities' lifeblood has been dependent upon the copper industry. Over the years, occasions would bring about, for example, a cessation of work because of a strike, and the whole economy of the area was very disastrously affected. The only thing they could look forward to was a small amount of ranching opportunities that centered through the town of Ely, as the county seat, and, of course, during the summertime a small amount of tourist activity.
They happen to be on Highway 50, but that is not one of the big interstate, divided highways. Highway 50 does not even run all the way through because there is a break over in Utah for the direct Highway 50 route.
As a result of the Clean Air Act amendments, it was determined by the EPA that the smelter at McGill was going to have to be closed. As a matter of fact, it was closed. Again, the whole economy of those two towns was dependent upon the smelter.
The company went to court and obtained a restraining order. The Federal Court judge was impressed so much, by the fact that the communities were entirely dependent upon the operation of this big mining operation and the smelter for their life existence that he issued a temporary restraining order against EPA and the company went back into operation again. They cannot operate under the conditions that are imposed upon them by EPA to add an acid plant to the smelter operation, which will cost something in excess of $40 million to install. They are operating on very marginal status with low grade copper ores.
We all know the price of copper has not been high over the last few years. If it is relatively low grade copper, of course, it becomes a question of whether the economics will support this type of an operation.
The proposal was made by the State, I may add, that they ought to be able to use other types of controls. For example, if there was a particular inversion condition or a wind condition that. was going to be a heavy pollutant, they could shut down the operation temporarily to meet the clean air standards.: This amendment will require the meeting of State standards. It just does not require them to install a $40 million constant. control emission plant to clean up this. particular operation. It will permit them to use other types of improvement methods, referred to as intermittent controls.
They have a big smokestack they have constructed which will help, of course, from the standpoint of pollution.
The importance is, Mr. President, that the adoption of this amendment will permit those two towns to remain in existence for a period of up to 10 years. We provide here the possibility of two 5 year extensions. We provide that the Administrator can investigate to determine the actual conditions. If he finds that it is essential, economically in order to keep the plant operating, he could grant two 5 year extensions on the use of intermittent controls.
Let me say a little something about the conditions in that surrounding area.
These two towns are right out in the middle part of the eastern part of Nevada, a long way from any heavily populated area. The closest town of any size, which is not as big as Ely, is some 80-odd miles to the west. The closest town of any appreciable size is over 200 miles away. In Nevada we like to think that we have plenty of good, clean air, and we want to keep it that way, too. But a little pollution coming from a smokestack to be dispersed over an area of, let us say, 200 miles in all directions before it gets to any appreciable population is, I submit, Mr. President, not going to affect the health or the atmosphere of that particular area.
Many of the people who are working and living in those communities were born there since the smelter started its operation many years ago. As a matter of fact, I would say that probably 50 percent of the population was born after the smelter began operation back in the early 1900's.
Mr. President, the purpose again of this amendment is to make clear that intermittent control systems are an approved control strategy in appropriate circumstances where the requirement of continuous control systems will force closing of nonferrous smelters. The EPA policy has been to require at these smelters the construction of an acid plant, as a minimum, usually plus supplemental control systems, with marginal plants being forced to close down if they cannot afford construction of these very costly additions.
Mr. President, I cannot believe, and I do not believe, the Congress intended that our commitment to clean up the air included a roughshod approach to existing facilities. Surely every industry must be required to take every feasible step available to it to reduce its contribution to air quality degradation. But those steps need not be so drastic as to force closures and job elimination and economic disruption of entire areas. There is room for flexibility, for taking a moderate step where the giant step is not possible.
This amendment will permit continued operation of existing nonferrous smelters employing intermittent emission reduction strategies for up to 10 years if the more costly control equipment will force their closure. It is not a license to pollute. The emission control strategies involved will be sufficient to meet State implementation plans. In fact, a 40 percent reduction in pollution emissions will be required at the McGill smelter in Nevada. Nor does the amendment eliminate the requirement of continuous control equipment at a later date, if such action becomes feasible.
The amendment will reinforce the efforts of Congress to insure State participation in the Clean Air Act by permitting the State to determine the "mix" of emission limitation requirements it feels is appropriate, rather than an inflexible EPA.
Mr. President, I believe the Senate has already spoken on this subject clarifying its intent last year. In a colloquy with the distinguished floor manager (Mr. MUSKIE) this point was discussed in some detail. I ask unanimous consent that the colloquy be printed in the RECORD at this point.
There being no objection, the colloquy was ordered to be printed in the RECORD, as follows:
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 including 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 addresses 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 an approvable 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. CANNON. Mr. President, I want to just review for the Senate a portion of the record we made last year which I hope will guide our efforts today. It was agreed in the colloquy, and I quote, 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 regarding enforceable supplemental controls — that would be an approvable control strategy under the Act.
The clear intent of that understanding is that if the requirement of continuous controls will force closure, a backup of alternative controls will be permissible. I hope the Senate will ratify that position, which is embodied in the present amendment. I offer the amendment despite what I feel was a clear intent because I fear that unless clearly codified, the long and costly litigation which has been necessary on this point will continue and that EPA will continue to insist on its narrow interpretation of the law.
Mr. President, I have discussed this matter with the distinguished Senator from Maine. I have impressed him with our problems. I recall last year I had a diagram up — I am sorry I do not have it with me today — which showed the location of Ely with respect to population centers, to show everyone the fact that we are not deteriorating the atmosphere that is going to affect any substantial number of people at all.
I appreciate that the distinguished Senator from Maine has indicated that with these safeguards we have in the proposed legislation he will be willing to accept it.
Mr. LAXALT. Mr. President, the measure now under consideration does not include any exemption from the requirements for stationary sources to use costly and sometimes unavailable continuous control technology in order to meet ambient air standards. This does not recognize the unique situation in which the smelting industry finds itself, and in particular, Kennecott Copper Corp.'s smelter located in McGill, Nev. The smelting industry, generally, faces both domestic and foreign competition that makes the use of certain sulfur dioxide scrubbing systems economically unfeasible. This matter was recognized and addressed by the House both last session and this and was recognized in EPA's new source performance standards as reported in the Federal Register on January 15, 1976.
EPA reported further in the Federal Register of February 18, 1976, that the courts had interpreted section 110(a) (2) (b) of the act as requiring "the use of constant emission limitations ... as their primary means for achieving ambient air quality standards." Measures other than constant emission limitations are appropriate to achieve ambient air standards only "where constant emission limitations were employed to the maximum extent achievaable or where constant emission limiting techniques were available in a technological sense but under circumstances where the installation of such technology by a given source would be economically unreasonable."
The language of S. 252 raises the question of whether intermittent techniques could be used at all. If the use of constant control technology for complying with the ambient air quality standards is mandated, this would cause closure of the plant at McGill, Nev. What would be the effects of this closure?
The immediate estimated unemployment rate of White Pine County would probably go to 35 percent and after a period of time, the estimated unemployment rate would probably be 50 percent or higher. Businesses dependent on Kennecott Copper as well as other businesses indirectly dependent on Kennecott would also be affected. County and city workers would be laid off because of the loss of tax revenues. Unemployed workers would not be able to sell property and homes they own. After a period of time, these workers will be forced to leave the area to look for work elsewhere. Thus, houses and apartments will become empty. Businesses will start closing. This type of situation would certainly be the beginning of another Nevada ghost town.
Mr. President, S. 252 would treat all smelters as a class and does not recognizethe significant economic circumstance in which each plant finds itself. Eleven of the fourteen western smelters use intermittent curtailment techniques as supplements to the use of certain positive controls, such as acid plants. If this bill will prevent the use of this method of complying with the ambient air quality standards they would be compelled to rely on the scrubbing techniques that even EPA has determined are not feasible. The only other alternative, of course, would be a complete shutdown such as that that threatens the Kennecott Copper smelter located in McGill, Nev.
The Cannon-Laxalt amendment would allow the Administrator of EPA to determine that should constant controls not be economically feasible for a particular smelter, it would be permitted for not more than two periods not to exceed 5 years each to use intermittent control systems. This seems reasonable to me, Mr. President, and consistent with the goal of maintaining air quality.
Mr. President, the Cannon-Laxalt amendment would permit the Kennecott Copper smelter at McGill, Nev., to continue the use of intermittent control systems providing that in doing so it meets primary air quality standards. This smelter, owing to its small capacity and marginal productivity, cannot support continuous control emission limitation systems. But let me emphasize again that through the use of intermittent control systems the smelter could meet primary air quality standards. Additionally, the Cannon-Laxalt amendment is drafted in such a way as to have no impact on fifth, sixth, and ninth circuit court decisions on the subject of emission limitations. Nor would it affect the requirement that Kennecott ultimately install continuous control systems.
What the Cannon-Laxalt amendment would do is buy time for White Pine County, Nev. Time which could see the development of less expensive continuous control technology or alternatively allow for appropriate measures to reduce the county's reliance on the smelter should its closure prove necessary.
Because of my great concern for the economic survival of White Pine County in eastern Nevada, I ask the Senate to adopt the Cannon-Laxalt amendment.
Mr. MUSKIE. May I say to my good friend from Nevada (Mr. CANNON) that we have indeed discussed this matter this year and last year. With the changes in the amendment which were agreed to and which are incorporated in the amendment at the desk, I am willing to accept the amendment.
I would like to emphasize how limited the exception is so that there will be no temptation on the part of others to build on this exception for a broad kind of policy change.
In the first place, as the Senator has pointed out, this applies to nonferrous smelters in operation before January 1, 1910, which, by itself, limits the class of smelters to be affected.
Second, the exception is limited to two periods not to exceed 5 years each, as the Senator has pointed out.
Third, there is a condition that the Administrator finds that the extension is essential to avoid cessation of smelter operations. That is spelled out in the amendment to section 314(e) in the committee bill: That is the method for establishing that finding.
Finally, this particular smelter is located in a very sparsely populated rural area in which there are no other pollution sources existing, so that the intermittent and controlled strategy which would be permitted by this. amendment would work, or at least would have a maximum opportunity for working. In a more complex urban area, where there might be other sources of pollution, the intermittent control strategy would not work and would be unenforceable. But it would be enforceable and could work in the circumstances which the distinguished Senator from Nevada has described.
With that understanding, which is very clear, as between the Senator from Nevada and myself, I am willing to accept the amendment.
I express my appreciation to the Senator for understanding the limitations that the committee wishes to impose upon any possible expansion of thisexception to a broader kind of policy change.
Mr. CANNON. I thank my colleague. I express to him the appreciation of all of the people of these communities, as wellas the people of our State. This has the support of the Governor's office. It has the support of all of the people who are knowledgeable in this area in our own
State, because of the peculiar circumstances.
As I said, we do not want to expand on anything. This is not an expansion. It will permit these people to continue to make a livelihood as they have been. That smelter was in operation before either the Senator or I was born. That gives some idea of the situation.
Mr. MUSKIE. Slightly before.
I say to the Senator that my understanding of the circumstances was enhanced by the fact, I think, that under the guidance of the Senator from Nevada, I have had the opportunity to visit the area which is involved and to see the little towns and understand how isolated they are, economically and in terms of this problem. It always helps, I think, to have a picture in one's mind of what is involved.
I am happy to yield to my good friend from Vermont.
Mr. STAFFORD. Mr. President, in view of the very unusual circumstances and the understanding of the Senator from Maine (Mr. MUSKIE), the minority are prepared to accept the amendment, also.