August 4, 1977
Page 26841
CLEAN AIR ACT — CONFERENCE REPORT
Mr. MUSKIE. Mr. President I submit a report of the committee of conference on H.R. 6161 and ask for its immediate consideration.
The PRESIDING OFFICER (Mr. SASSER). The report will be stated. The legislative clerk read as follows:
The committee of conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 6161) to amend the Clean Air Act, and for other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses this report, signed by a majority of the conferees.
The PRESIDING OFFICER, Without objection, the Senate will proceed to the consideration of the conference report.
(The conference report is printed in the House proceedings of the RECORD of August 3, 1977.)
PRIVILEGE OF THE FLOOR
The following Senators requested and, by unanimous consent, the privilege of the floor was granted in behalf of .the following staff members: Mr. MUSKIE: John Yago, Philip Cummings, Leon Billings, Haven Whiteside, Karl Braithwaite, Charlene Sturbitts, Katherine Cudlipp, Richard Herod, Lee Rawls, July Parente, Richard Herod, Richard Harris, Sally Walker, Kevin Cornell, Mike Hathaway, Ron Katz and James Range; Mr. STEVENS: Steve Berlitz; Mr. HAYAKAWA: Tom Carter; Mr. McCLURE: Mike Hathaway.
Mr. MUSKIE. Mr. President, may I have the attention of the Senate?
Mr. McINTYRE. Mr. President, may we have order?
The PRESIDING OFFICER (Mr. SASSER). The Senate will be in order. Those Senators engaging in conversation will retire from the Chamber to the cloakroom, and all others will be seated.
The Senator from Maine is recognized.
Mr. MUSKIE. Mr. President, the conference agreement on the Clean Air Act represents a culmination of 21/2 years of effort on the part of the House and Senate to develop answers to questions which have been raised in the process of implementation of that complex and far reaching law. The agreement is a compromise in every sense of the term. It does not represent everything that either body wanted. It does represent a middle ground between two bills which took very different approaches to very controversial issues. Later in this statement I will elaborate on each provision, its basis and the intent of the Congress it expresses. These remarks will be essential to administrative and judicial understanding of the agreement before the Senate because so much was created in the conference which either was not in the Senate bill or was not in the House bill or was so markedly different from either bill as to have little or no legislative history.
All and all, Mr. President, this bill represents something less than that which we set out to do in 1970. Under this legislation, the Administrator of the Environmental Protection Agency will have fewer tools to accomplish the job of protecting America's health and welfare from the threat of air pollution. The Administrator will be more reliant on local and State capabilities to create the institutional and infrastructural changes necessary to achieve clean air. And perhaps this is as it should be. We have learned that there is little political support for inartfully conceived national measures which require people to change their way of living. We have learned that where change can be made it must be made with the full understanding and support of the people who are affected by that change. It is fair to say that the National Government has the capacity to regulate major direct sources of air pollution. It is fair to say that the national government has the authority to provide the informational support that local and State governments need to determine the best options for controlling air pollution. And it is fair to say that the National Government may be the most effective center for enforcement activity to ensure equity among regions, maximum progress toward emission reductions and a limitation on the natural tendency to play one locality off against another to lessen the degree of air pollution restriction required.
But beyond that, Mr. President, we have learned a great deal since 1970 about what it will take to clean up the Nation's air specifically, and to protect the environment generally. We have learned that any lack of enthusiasm or negativism or sign of weakness on the part of the national program directors is magnified tenfold at the local level. We have learned that only with maximum political, technical and education support can the local political leaders who must inevitably bear the burden for change withstand the kind of pressures which arise when change is undertaken.
We saw the concept of transportation controls — that is the idea that people would have to change the way they move about — irreparably damaged by the initial neglect of the program by national leadership. We saw many of the programs envisioned by the 1970 act fail before they were even tried because of alack of commitment by national leadership. We have seen the results of the failure to fund the kinds of ancillary programs needed to make possible changes in transportation patterns and transportation modes. And we have seen a lack of commitment on the part of Federal agencies charged with other responsibilities raise doubts about the efficacy of environmental controls.
So, Mr. President, we begin again. This time with a more specified law; this time with a greater burden on localities; this time with more tools and more flexibility. But still with a very basic objective — the objective of protecting the health and welfare of the people of this land. No one, and I underscore no one, should be led to believe that this act by its modification of the 1970 law means an abandonment of those objectives. There is built into this new law the very necessary provisions which will force communities to make choices, the result of which will be protection of public health.
By the fact that the Federal Government has withdrawn from the field of regulation of certain kinds of land use related activities, and certain kinds of minor emitting sources, and certain kinds of small businesses does not in any way suggest that decisions regarding these facilities and sources can be ignored. Air quality related land use decisions, regulation of small sources, vapor recovery from moderate to small-sized service stations all continue to be tools in the State and local air pollution control bag. That they cannot be imposed by the Federal Government is only a recognition that the manner by which they are imposed, the pace at which they are imposed, and the degree to which they are imposed should be made as a part of a local balancing judgment.
This law will use as the basic regulatory mechanism the one logical tool which is available for protecting the environment. This law will establish environmental protection — achievement of public health related air quality standards — as a price for new economic activity. A community which chooses to languish in its current economic situation will need to make few of the really tough decisions on matters such as land use and indirect source controls. The power of the Federal Government to force these kinds of judgments has been seriously restricted. But a community which is anxious to attract new capital and relies on heavy economic activity will have to show that it has a plan to achieve health standards by specific dates and at each point that major new economic activity becomes attractive, that plan will have to be checked and the time schedule reviewed to assure that a community is fulfilling its commitment.
It was alleged that the 1970 act was a no-growth bill and subsequently alleged that the amendments to the act had no-growth implications. Nothing could be further from the truth.
These amendments will make clear that it is through the anticipation of growth that the public can begin to expect local political leaders to press for clean air measures. These amendments seek to turn the momentum for economic activity into a force of clean air. These amendments expect the great genius of American enterprise to become the great advocate for land use controls, indirect source regulation, changes in transportation patterns, development of public transportation systems, development of alternative systems for moving people about, and the host of other measures which are absolutely essential to protection of public health.
As a result of these amendments, developers should become advocates of land use regulatory policy, car dealers and auto clubs should become advocates of inspection and maintenance programs, electric utilities should become advocates of conservation and the host of business and enterprise should become the spokesmen for mass transportation, change in growth patterns, de-emphasis on the use of the private automobile when effective substitutes can be found.
These amendments tell the American people that the Congress got the message; that the National Government realizes that change without an adequate underpinning cannot be forced; that local decisions, locally arrived at with proper incentives, can achieve the goals we share.It will now be in the hands of the new administration, with new Administrators committed to these objectives, to assure that communities and States get the kind of technical, financial, and educational systems necessary to meet these purposes.
I, for one, am satisfied that this can be done, with or without the cooperation of the major polluting industries. They have had their day in court and they have had their days in Congress. The policy has been laid down, the methods have been established, the penalties for noncompliance are available and we should now be able to watch the implementation of these measures with little further appeal to the Congress from those powerful sources who for so long have been committed to making this policy fail.
This conference report is a composite that meets the public interest test. Most important of its provisions are, in my opinion, Senate requirements applicable to stationary sources. These provisions seek to put an end to the first round of efforts to circumvent emission control requirements by establishing new deadlines for existing industrial sources and penalties for failure to meet those new deadlines.
Mr. President, there are clear messages in this bill. The first message is to the Nation's major industries. It can be taken from the amendment to which I just referred. That message is that the time for talk is over — the time for compliance is here. The health of the people can wait no longer. And the conferees have a similar message for the Nation's auto companies. We do not want to know what cannot be done; we want to see what can be done. We are tired of their foot dragging. We are tired of their constant effort to solve problems by lobbying Congress instead of developing technology. I think my colleagues can appreciate the sense of frustration which comes from over 10 years of these confrontations.
I sense no stronger feeling from the collective Senate conferees than a desire to resolve the final auto emissions requirement. We know that the technology exists to produce cars meeting standards which will provide a significant degree of health protection. It is out there. It has been tested. It is being used and it is being used without unacceptable cost or fuel economy penalty. I say to Detroit that the time has come to show us that the job can be done by American manufacturers on American cars.
At this point I would like to discuss some of the major provisions of the conference bill.
The conference bill addresses the regulation of stationary sources in numerous ways.
DELAYED COMPLIANCE ORDERS
With respect to the approximately 1,400 of 23,000 major emitting facilities not in compliance with requirements under the Clean Air Act, the conference bill adopts an expeditious cleanup schedule.
This section of the bill establishes a procedure which limits the authority to issue administrative orders allowing a delay in compliance to narrowly defined circumstances. These requirements shall govern all enforcement orders issued by either State or Federal authority which extend the time for compliance. Such orders must contain final compliance dates that are as expeditious as practicable, but in no event later than 3 years from the date attainment of the national ambient air quality standards would otherwise have been required. Should a source wish to comply by use of innovative technology, however, it may be granted up to 5 years to achieve final compliance. A source would not be eligible for a delayed compliance order if the delay is requested for convenience or for economic advantage.
The State retains primary responsibility for enforcement. Issuance of a delayed compliance order must be preceded by notice and opportunity for a hearing. The EPA Administrator may also issue an order with the consent of the Governor of the State in which the source is located. A Governor may withhold consent only to prevent the Administrator from issuing an extension less stringent than any extension the State would issue. In addition, the Administrator may object to a State order within 90 days, and must then immediately issue his own order to the source involved.
Nothing in this provision is intended to affect the ability of States to revise their State implementation plans under section 110. To the extent that a noncomplying source is affected by a substantive revision making its emission limitations more stringent or imposing new requirements on the source, then the appropriate elements of the delayed compliance order for the source would also be changed accordingly. Thus, a source would be eligible for a delayed compliance order with a final compliance date 3 years from the date the source is required to comply with the new requirements.
The issuance of a delayed compliance order shall serve as notice for purposes of noncompliance penalties should the affected source not comply by the applicable date. A source receiving an order must comply with all interim requirements which the Administrator deems reasonable and practicable. The Administrator may revoke an order if he determines that the conditions upon which the order was based no longer exist or that the source is in violation of interim requirements. Where a source wishes to comply by replacing the facility, terminating operations, or completely changing the production process, it may receive an extension requiring no interim steps before final compliance if it agrees to post a bond or surety equal to the cost of compliance had the owner decided to comply by installing control equipment.
Compliance schedules established through administrative orders before enactment of the provision must be modified to reflect the final compliance date required by this section. The only other procedure available to a noncomplying source to gain an extension of its final compliance date is under section 110(f) which allows the Governor of a State to request a 1-year extension.
NONCOMPLIANCE PENALTIES
The bill also requires the States and/or Administrator of the Environmental Protection Agency to assess and collect noncompliance penalties. Using the variables set forth in the amendment, the noncompliance penalty would be calculated on the basis of the costs of noncomplying source avoids by delaying compliance. Specifically, the calculation of the noncompliance penalty must consider the capital costs of compliance and debt service over a normal amortization period, not to exceed 10 years, operation and maintenance costs foregone, and any additional economic value of a delay. In essence, the penalty would reflect financial savings realized by the firm as a result of noncompliance with the law.
The purpose of the penalties is to capture these economic savings and remove any advantage of delay. In other words, the noncompliance penalty will eliminate any economic advantage that delayed compliance will confer on a noncomplying firm relative to a firm that complies in a
in a timely manner. This effect would also result in more equitable application of air emission standards.
In determining the fee, the calculations are to be made on a monthly basis and would represent the monthly equivalent of the financial savings a noncomplying firm would realize during its period of noncompliance. However, in order to minimize the administrative costs associated with the collection of the fee, the firm is required to make its scheduled payments quarterly.
All payments after the first quarter's payment are to be equal in constant dollar terms. However, since inflation could lead to the firm actually saving money in real terms, the administrator may include an inflation factor to adjust the equal payments in constant dollar terms to increasing payments in current dollars.
The provisions of the amendment also require that the firm be given a credit for compliance expenditures during the period of noncompliance if these compliance expenditures are not taken into account in the calculation of the penalty. The intent of this provision, however, is not to allow a noncomplying firm to subtract from its penalty payments for any period all of the capital costs or operating and maintenance costs incurred during the period of noncompliance. Rather, the intent is to require the penalty to be calculated on the basis of the incremental costs necessary to come into compliance. However, if the calculation of the penalty gives due consideration to all relevant compliance costs and expenditures, the firm would not be permitted to deduct any compliance expenditures from its noncompliance penalty payments.
In addition there are certain exemptions from the penalty, including, among others, cases where a flrm's inability to comply is attributable to causes completely beyond the control of the source owner or operator. An exemption due to causes attributable to third parties is fraught with numerous potential abuses. Therefore, the intent is to limit exemptions for delays to those clearly beyond the control of the owner/operator such as fires or floods at the noncomplying facility.
This section is similar to one in last year's bill regarding the ability of a source to be exempted from the penalty under certain very limited conditions. Last year, Senator STAFFORD and I had a dialog on the floor of the Senate on this question in order to more fully explain the conditions under which a source could get an exemption from the penalty. I would like to have that explanation printed in the RECORD now because I intend that this explanation should still apply to the delayed compliance penalty in the bill we are now considering.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
Mr. STAFFORD. I am pleased that the committee has sought in this bill to find imaginative new means
for encouraging the most expeditious abatement of pollution, while minimizing the effects of these
measures on the economy and the Nation's supply of energy. In particular, I believe that the delayed
compliance penalty provision will provide a significant incentive for compliance while assuring that
noncompliance will not result in unwarranted closing down of energy
and other facilities. I think this measure will also go a long way toward assuring fairness to all subject to
the Clean Air Act, by guaranteeing to those who have complied with the law that they will not be at an
unfair disadvantage in competing with those who have not met their obligations.
I believe this penalty incorporates a sound principle. In passing the 1970 act, we provided that during the formulation of the State implementation plan, the States were required to hold public hearings on the measures they proposed to use to attain the national health protective air quality standards. We expected that those industries who might be affected by the State plans would have an ample opportunity to present their views concerning the cost or feasibility of the measures proposed by the State to meet the standards. The States would then have the best information available to decide what measures for abating pollution were available, and how to meet the standards most economically. It was expected that claims of excess cost or infeasibility would be raised and decided by the States at this point. These claims would then be foreclosed in later enforcement proceedings although they might form the basis for a subsequent revision of a State plan. Dicta to the contrary in the Supreme Court's recent opinion in Union Electric against EPA are, in my opinion, incorrect.
Without this rule, the congressional plan for expeditiously attaining healthful air quality could have been easily frustrated by those who ignored the original planning process, then waited until an enforcement action to raise their objections to the requirements of the plan.
In the pending bill, we have recognized the unfortunate fact that a large number of pollution sources did not meet their timetables for compliance in the State plans. For those who have not yet complied, we have allowed the States to put off the day of reckoning until as late as 1979, or 1981 in some cases. At that time, those who have still not complied will, and should, be subject to the full enforcement of the law, including the delayed compliance penalty.
At that time, the requirements of the State implementation plans will have been in effect for 7 to 9 years. The time for questioning the cost or feasibility of these requirements will be long past. For this reason I wish to be certain that I am correct in my understanding that claims regarding neither the cost nor availability of the technology, systems, or other measures needed to comply can be raised to question or delay the imposition or full effectiveness of the delayed compliance penalty.
I note with approval that the bill does not grant jurisdiction in the courts for reviewing a delayed compliance penalty on the ground that meeting the applicable requirement of the State plan would be costly; and that the committee's report specifically notes the issue of cost may not be the basis for review of a penalty. I wish to be sure, however, that the same applies to a claim that technology is not available to meet the requirement.
Mr. MUSKIE. Your understanding is correct. Since the question of feasibility was to have been addressed in the process of formulating the State implementation plan, the Federal courts would not have jurisdiction to review delayed compliance penalty on the basis of a claim that technology was not available to meet the applicable requirement. The opportunity to present these claims was available when the plan was formulated. It remains available as a grounds for requesting a revision of a general requirement of a State implementation plan. It may not be raised in defense to a delayed compliance penalty or other enforcement action.
Mr. STAFFORD. I note that the bill provides that a penalty could not be applied where compliance with the applicable requirement was impossible owing to reasons "wholly beyond the control" of the source owner. Am I correct, then, in assuming that this exception does not cover a claim that technology is not available?
Mr. MUSKIE. Yes, you are correct. The exceptions for events wholly beyond the control of the source owner is intended to be limited very narrowly, in keeping with the bill's intent that the penalty should provide a strong incentive for compliance and a safeguard against unfairness to those who more expeditiously meet the act's cleanup requirements.
It is intended to apply only in cases of natural disaster, fire, embargo, or the like, which interfere with the timely installation of the equipment, systems or techniques, required to meet the State plan's requirements, and then only for a period equal to the duration of the delay-causing event. It might be available where a supplier or contractor was unable to meet a final completion date for emission control equipment, but even in this case, it would not be available if there was evidence suggesting that the delay was in any way caused or encouraged by the source owner himself. For example, if the source owner unduly delayed negotiations for needed equipment in the first instance by demanding unusual guarantees or by making other demands not typical of contract negotiations in its industry for production equipment, the exception would not be available.
Likewise, it would not be available where the source owner placed unusual restrictions on the construction work of the supplier, or delayed shakedown testing beyond the normal interval for equipment used in its production process. And in addition to the conditions it would not be available in any case unless the source owner could show, by reference to his own financial and organizational records, that procuring and implementing the needed measures had been given highest priority in the owner's planning and budgeting process.
It was our view that by the time the penalty was imposed, the opportunity for arguing that the necessary pollution control equipment or other systems or measures were not available or technologically feasible had long since lapsed.
Mr. STAFFORD. That was my understanding also, and I am reassured to hear that it was the intent of the committee when it drafted this bill.
Mr. MUSKIE. Mr. President, cost of compliance does not serve as a basis for an exemption. It is
recognized that the purpose of the noncompliance penalty itself is to capture the financial savings
that are presently realized from delayed compliance. However, when the civil and criminal penalties are
considered in addition to the noncompliance penalty, the act will have eliminated incentives to delay
compliance and there will be positive incentives to come into compliance. The owner or operator of a
major emitting source will no longer have anything to gain from delayed compliance but will have a lot
to lose.
SMELTERS
Delayed compliance orders are also permitted for smelters under the conference bill. Two such orders may be obtained by a given smelter, neither of which may exceed 5 years in duration.
As applied to smelters, the availability of a delayed compliance order is a relief measure which recognizes the unique economic circumstances of the industry. In consequence of these special circumstances, smelters may, during the term of a delayed compliance order, do what no other category of sources is permitted under the Clean Air Act. Specifically, smelters may employ dispersion technology devices such as tall stacks and supplemental control strategy along with constant controls as an interim means of meeting ambient standards. By permitting this interim relief measure for smelters, there is no implied intent to relax the Clean Air Act's longstanding prohibition against the use of dispersion technology as a means of meeting ambient standards. Nor is there any intent to permit similar relief to other industries or sources, irrespective of cost considerations.
During the term of the first delayed compliance order, those smelters now having constant controls on line could not be required to install additional controls. For this purpose the phrase "constant controls on line" is intended to mean an acid plant which: First, was designed to achieve an optimum level of SO2 control at the site where it is located; and second, is properly operated and maintained at that site. Where acid plants now in use do not measure up to this standard, it is intended that such acid plants will be upgraded to a level which EPA determines to be optimum either on a smelter-by-smelter or industry-wide basis.
A second delayed compliance order issued to a smelter would have to be based on a public hearing and a showing that the ultimate emission limitation contained in the plan was not reasonably available as to it despite good faith efforts by the source to assure that the necessary controls would be available on the expiration of the first order. During such second order, the smelter could be required to install additional controls beyond a well designed, operated and maintained acid plant if such additional controls are economically reasonable and adequately demonstrated.
As to the latter requirement, it is the intent of the bill that the burden will be on the source to show that a device is either economically infeasible or not adequately demonstrated. This is intended to overrule the recent decision of the Ninth Circuit Court of Appeals in Bunker Hill in which the court suggests that the burden in such matters would be on the Environmental Protection Agency.
It is also intended to give teeth to the technology-forcing principles of the act and to make more meaningful the requirement of the bill that, during the term of a smelter compliance date extension, the smelter must engage in a research and development program if EPA deems such to be desirable. New hearings may be held by the Administrator at any time on the question whether additional controls are either adequately demonstrated or economically feasible.
For those few smelters which presently lack acid plants, the bill provides a mechanism for obtaining a delayed compliance order without the obligation to install an acid plant as an interim measure. Basically, such exemption can be approved. by the Administrator only if the smelter in question can prove that the cost of an acid plant will result in a permanent shutdown or a temporary shutdown of more than 1 year. This showing must be made to the Administrator in a hearing petitioned for by the State and conducted by the Agency. Notice of the hearing must be given to the public. The Administrator's determination must be based on the record of the hearing, and must be forwarded to the State. The State and the Administrator must take such determination into account in any subsequent delayed compliance order that the State proposes for a smelter and the Administrator must do the same in approving or disapproving such proposed delayed compliance order.
If the Administrator determines that a smelter is violating any applicable requirement of a delayed compliance order, he may enforce the requirement under section 113 of the act, revoke the order and enforce the original State implementation plan requirement, seek a noncompliance penalty, or take a combination of these actions.
The term "enforceable supplemental controls" is used advisedly. As I have made clear repeatedly — see my statements recorded at 119 CONGRESSIONAL RECORD, pages 19183-19205, June 12, 1973; and 120 CONGRESSIONAL RECORD, pages 18956-18974, June 12, 1974 — I seriously doubt whether any system of supplemental controls can meet the test of enforceability.
The Committee on Environment and Public Works has repeatedly received testimony from State officials and representatives of the public to the effect that no enforcement mechanism exists that will assure the air quality standards are achieved at all times in the vicinity of sources using supplemental control systems. It is the intent of the Congress that permission to use such measures, even on the sharply limited temporary basis that might be authorized under this legislation, shall not be given if either the Federal or State environmental agencies have any doubt that the air quality standards mentioned previously can be protected at all times by the proposed system.
It is also contemplated that among the elements that must be included, at a minimum, in any proposed supplemental control system before either EPA or a State can authorize its use, are the following. First, it must provide that the source shall be considered in violation if concentrations of pollutants in excess of the applicable air quality standard are recorded anywhere within the "liability area" to be set under the provisions of the bill; or if emissions from the source exceed specific emission limitations predetermined by the control agencies to be necessary to assure achievement of applicable air quality standards under various meteorological conditions.
Second, the source must formally agree that it will accept liability for a violation whenever concentrations of pollutants in excess of the applicable air quality requirement are recorded within its liability area, and that it will not contest assessments of liability for exceeding the emission limitations referred to previously on the grounds that the failure to meet these emission limitations did not result in measured concentrations of pollutants exceeding the applicable air quality requirements.
Third, it is contemplated that the Environmental Protection Agency shall refuse permission for the use of supplemental controls unless the Administrator is satisfied that the State agency has adequate resources to provide the surveillance and enforcement needed to assure all the conditions applicable to the facility are met. If necessary to assure adequate resources, the source should be required to pay the State a license fee sufficient to defray these costs.Under no circumstances is it contemplated that the task of surveillance — monitoring of either emissions or ambient air quality — should be assumed by employees, contractors, or other persons affiliated with or paid by the owner of the source.
The bill provides that permission for temporary use of enforceable supplemental control systems may be given if the smelter is unable to comply with the ultimate emission limitation contained in the State implementation plan. It therefore does not allow, even on a temporary basis, the use of such systems as an alternative to continuous emission control requirements promulgated by State or Federal agencies under section 111 (a) or (d) of the act.
The bill also provides that in the event the Administrator determines that continuous emissions control measures become adequately demonstrated to be reasonably available, he may revoke an order permitting the use of supplemental control systems. The cost of continuous emission controls is stated to be a factor to be considered in reaching such a decision. The Congress contemplates that in evaluating the cost of a continuous emission control system, the Administrator shall include any cost savings that might accrue to the source as a result of greater process efficiency or productivity, as well as any income that might be derived from the sale of any byproduct produced by the continuous emission control system. In determining what costs are reasonable for a source to bear, the Congress intends that the Administrator shall consider the resources of the owner of the source, or of any other entity of which the owner is a subsidiary or affiliate, rather than looking only to the resources of the source itself.
Finally, it is contemplated that any request for an order allowing delayed compliance that is based on an allegation that the cost of installing continuous emission controls would result in the closing down of the facility shall trigger the subpoena and other powers provided the Administrator.
PREVENTION OF SIGNIFICANT DETERIORATION
The conference bill contains provisions to prevent the significant deterioration of air quality where air quality is presently cleaner than existing ambient air quality standards. The conference agreement adopts a three-class program similar to that provided in last year's conference bill. The specific increments are set forth in the statute as in the Senate bill, and are as follows : First, class I, Senate bill; second, class II, House bill except the 3-hour sulfur dioxide increment, which becomes 512 micrograms per cubic meter; and third, class III, House bill, except the 3-hour sulfur dioxide, which becomes 700 micrograms per cubic meter.
The listing of lands to be included in mandatory class I areas is as in the Senate bill. All other nondegradation areas are initially designated class II by statute upon enactment.
The Federal land manager is required to review national monuments, primitive areas, and national preserves, and shall recommend any appropriate areas for class I designation where air quality related values are an important attribute of the area. The recommendations must be made within 1 year, with recommendations going to the State involved, and to Congress. The Federal land manager shall consult with the States in determining these recommendations.
The procedural requirements for redesignating an area as class III are accepted from the House bill. The following areas are not eligible for class III designation if the area is over 10,000 acres: national monuments, national primitive areas, national preserves, national wildlife refuges, national lakeshores and national seashores, new national parks, new national wilderness areas, and any other new areas in these categories created after enactment. This conference agreed to procedures whereby a source could be granted a variance from the class I increments for sulfur dioxide. The variance authorizes the Governor of the State to permit the maximum allowable increase specified for 3-hour and 24-hour concentrations of sulfur dioxide in class I areas to be exceeded during 5 percent of the days of the year.
In no event would the maximum concentrations in the class I area be allowed to exceed the class I increments by more than 8 percent of the primary air quality standards when the terrain in the class I area is below the center line of the plume from the source, or exceed the class I increments by more than 15 percent of the primary standards when the terrain in the class I area is 900 feet above the base of the stack.
In order to grant a variance from the sulfur dioxide class I increment for a proposed source, the Governor, after notice and opportunity for public hearing, must find that the facility cannot be built without the variances. This would include such determinations as these:
There exists no economically feasible alternative sites at which the proposed facility could be located such that the sulfur dioxide class I increments would not be violated; and
The proposed facility is needed by a specific date and that the size of the facility at the proposed site cannot be reduced to meet the class I increments and continue to operate in an economically efficient manner.
In the case of Federal mandatory class I areas, the Governor must also find that the class I variance will not adversely affect the air quality related values in the area. In making this finding the Governor is required to seek the recommendation of the Federal land manager and in granting the variance he must obtain the concurrence of the Federal land manager. In situations where the proposed facility is located in one State and the affected class area is in an adjacent State, the Governor must consult with the Governor of the adjacent State.
If the Governor recommends a variance for Federal mandatory class I areas contrary to the recommendation of the Federal land manager, the Governor's recommendation and the recommendation of the Federal land manager are to be transmitted promptly to the President. The variance could not become effective until the President approves the Governor's recommendation. The President must grant or deny the variance within 90 days.
In making this decision, it is intended that, in addition to the air quality impacts of the proposed facility, the President consider the need for such facility in the national interest, the availability of alternative sites for the facility and the potential to provide the service of the proposed source from alternative sources or category of sources. The President's decision will be a final, nonreviewable decision.
Throughout the debate on nondegradation, there have been concerns expressed that the scheme in the Senate bill was too restrictive for new sources attempting to locate in clean air areas. I have consistently opposed that view. I think that the Senate bill provided ample room for the kind of new growth that can best meet the country's needs.
But those who continue to disagree with my view should look closely at the conference report. It has the potential for a State to allow more emissions in clean air areas than did the Senate bill. Such an opportunity is available under the class III increments.
The Senate did not have class III increments. The most crucial and limiting increment is frequently the 24-hour sulfur dioxide increment. The class III in the conference report would allow an 80-percent increase beyond the Senate bill in the amount of sulfur dioxide that could be added to existing air quality in an area. It is my hope that States will use the class III approach with great care.
There are important procedures for the designation of a class III area. The decision to establish such an area should not be made lightly. Once it is made, it is not likely to be reversed, though reversal is not precluded. The steps that must be taken to redesignate an area as a class III area are these:
First. The Governor of the State, after consultation with the legislative committees in the State Legislature, approves the redesignation.
Second. Local governments representing a majority of the residents of the area must agree with such a designation. This agreement is most likely to be in the form of a resolution adopted by the local governmental unit. The local government that analyzes the decision is intended to be that governmental unit with statutory or constitutional authority to make such decisions and would not be required of each unit of Government in the area unless such authority was vested in such unit.
Third. The creation of a class III area cannot lead to emissions that will cause another area to exceed the increments that apply in this second area. For example, a class III area would have to be located at a sufficient distance from a national park so that the emissions resulting from activity in the class III area do not exceed the class I increments over the park. We know from the studies of power plant siting that have been conducted that once major sources of emissions move a reasonable distance, there is room for very large facilities to be located without exceeding the class I increments.
If Federal lands are involved, the Federal land manager must be consulted, but the Federal land manager has no veto over the authority of the State and local governments in this redesignation. That is an important concession to States with substantial Federal lands.
It will be possible for areas to be designated as class III. It will require analysis and political support of the community and State. It is not an impossible burden, nor an unreasonable requirement to ask people who live in these areas to participate in decisions which affect their air quality.
NEW SOURCE PERFORMANCE STANDARDS
Under the Clean Air Act Amendments of 1971, section 111 requires that EPA promulgate performance standards reflecting the best system of emission limitation for new sources.
Congress had several reasons for including this requirement. First, standards with a degree of uniformity are needed to avoid situations where some States may attract industries by relaxing standards relative to other States. Second, stringent standards enhance the potential for long term growth. Third, stringent standards may help achieve long term cost savings by avoiding the need for more expensive retrofitting when pollution ceilings may be reduced in the future. Fourth, certain types of standards for coal burning sources can adversely affect the coal market by driving up the price of low-sulfur coal or effectively excluding certain coals from the reserve base because their untreated pollution potentials are high. Congress does not intend that new source performance standards contribute to these problems. Fifth, the standard-setting process should create incentives for improved technology.
In conference, it was agreed to clarify Congress intent in section 111. In particular, the requirement for best system of emissions reduction has been more narrowly redefined as best technological system of continuous emission reduction. Where control technology to accomplish a substantial degree of pollutant removal exists, no sources may comply simply by burning untreated fuels. All new source performance standards must be revised to reflect this change within 1 year of these amendments' passage.
A new provision would require that the new source performance standard for fuel burning sources be comprised of both an enforceable percentage reduction requirement and an emission ceiling. If new sources use precombustion fuel treatment in order to meet pollutant reduction requirements, the new sources and their suppliers must document the pollutant reduction taking place.
In requiring a percentage removal standard, EPA is authorized to give credit for mine mouth and other precombustion fuel treatment processes whether or not undertaken by the source itself.
EPA's Administrator is given the flexibility to set a range of pollutant removal based on varying fuel characteristics if he finds that the NSPS objectives described are not undermined.
COAL CONVERSIONS
The coal conversion provisions of the bill amend the Clean Air Act by extending EPA's authority to grant compliance date extensions to sources which must convert to coal burning as a result of Federal Energy Administration, FEA, orders or natural gas curtailments and by improving on the procedures for granting such extensions by eliminating the "significant risk" provision, making the regional limitation a rebuttable presumption, and providing for State disapproval of EPA certifications to FEA of the date a source can burn coal and meet primary standard conditions.
Under the bill, compliance date extensions for sources converting to coal may be issued in the same manner as any delayed compliance order, except that certain provisions are included to take account of the special circumstances which affect these sources. First, although coal conversion may be accomplished under a delayed compliance order before a source can burn coal and meet the applicable State implementation plan, the "primary standard condition" assures that such a source will not convert until it meets whatever enforceable conditions are necessary to assure that the national primary ambient air quality standards will be met at all times.
Second, if the source is located in an area where the primary standards are already being exceeded, the "regional limitation" assures that the source will not convert until it meets the implementation plan requirements. The Administrator will presume the applicability of the regional limitation if the primary standards are being exceeded anywhere in the relevant air quality control region unless the source owner — or some other person — presents evidence upon which the Administrator determines that the source's emissions will not affect concentrations of pollutants where the standards are being exceeded and that the source's emissions will not cause or contribute to excursions above the national standards. This is a change from the present provision which automatically imposes a regional limitation without an opportunity to rebut the presumption of impact on primary standards.
However, the question of applicability of the limitation would not remain open indefinitely, and evidence must be submitted well before the Administrator makes his certification to FEA. In addition, the Administrator should require clear and convincing evidence before finding that a regional limitation does not apply since wherever there is doubt, health should be protected by requiring that the implementation plan be met before conversion.
Finally, a delayed compliance order issued to a converting source must provide for compliance by December 31, 1980. However, in recognition of the special problems such sources may encounter, an additional order of up to 5 years' duration may be issued if a source is unable to comply by December 31, 1980. No extension beyond December 31, 1980, could be granted unless the source cannot, by acting expeditiously and in good faith, comply by that date.
In recognition of the concern of State authorities about the impact of increased air pollution from sources converting to coal, the bill adds a new procedure by which a State may veto any decision of the Administrator to permit coal burning prior to compliance with applicable State implementation plan requirements. The State veto would be in the form of a disapproval of the Administrator's certification to FEA of the date the source can burn coal and comply with applicable primary standard conditions. This provision protects the States' interest while preserving the Federal nature of the air pollution control aspects of the coal conversion program in accordance with pending energy legislation.
The bill would also eliminate the present provision of the Clean Air Act for EPA suspension of FEA prohibition orders where emissions from a coal conversion source would result in significant risk to public health.
NONATTAINMENT
The nonattainment sections of the conference bill represent an amalgamation of the House and Senate bills. For areas violating any national ambient air quality standard — NAAQS — the States must submit revised implementation plans no later than January 1, 1979. These plans must provide for NAAQS attainment as expeditiously as practicable, but no later than July 1, 1982. The only exception is for the automotive-related national ambient quality standards. Where a State submits a plan by January 1979 which provides for enforcement of all reasonably available measures as expeditiously as practicable, the State may provide for attainment in a two-phased submission, with the final submission not due until January 1, 1982. This revision must provide for attainment as expeditiously as practicable, but not later than the firm deadline of December 31, 1987. Where States do not submit adequate plans, the Administrator must promulgate his own plan insuring attainment by firm deadlines.
An important aspect of these provisions is the treatment of new and modified stationary sources in nonattainment areas. The conference bill ratifies EPA's "emission offset" interpretative regulation, published in the December 21, 1976 Federal Register at pages 55524-30. Permits may be issued to new and modified sources before July 1, 1979 only if the requirements of this interpretative regulation are followed. Of course, States are free to apply more stringent requirements if they choose.
The conferees were aware that EPA, in implementing the interpretative regulation, has provided some allowance for the phenomena of natural dust and long range transport of photochemical oxidants and their precursors. EPA may continue to authorize States to take account of these phenomena so long as attainment of the NAAQS by the required dates is assured.
On and after July 1, 1979, new and modified sources may be granted construction permits only if the permits are in conformity with the requirements for revised implementation plans set forth in the conference bill. Under the revised implementation plan, a State which desires to permit new and modified sources in nonattainment areas may do so under two options: First, it may continue, under the basic "emission offset" policy, to allow new sources only when more-than-offsetting emission reductions are secured prior to the new facility's startup date; or second, it may provide an allowance for new source growth in its plan, so that new sources may be permitted without case-by-case offset determinations so long as the emissions are within the approved quantified allowance and the net effect will be reasonable further progress toward NAAQS attainment by the time required.
The Administrator will be required to monitor the States' implementation of these requirements. Whenever a State issues a permit which does not insure that the requirements of the act are being — or will be — met, he will be obligated to take whatever action may be necessary, whether in an administrative or judicial forum, to prevent the source from constructing or modifying.
I should note that the test for determining whether a new or modified source is subject to the EPA interpretative regulation — and to the permit requirements of the revised implementation plans under the conference bill — is whether the source will emit a pollutant into an area which is exceeding a national ambient air quality standard for that pollutant — or precursor. Thus, a new source is still subject to such requirements as "lowest achievement emission rate" even if it is constructed as a replacement for an older facility resulting in a net reduction from previous emission levels.
A source — including an existing facility ordered to convert to coal — is subject to all the nonattainment requirements as a modified source if it makes any physical change which increases the amount of any air pollutant for which the standards in the area are exceeded.
I should also make an important point about the provision which allows States to submit their plan revisions in two phases for the automotive-related NAAQS's. The States must include all reasonably available measures in the first phase, 1979. The fact that the second phase may be deferred until 1982 does not excuse States from including measures in the 1979 submission which might take more than 3 years to develop and implement fully. The advantage of the two-tiered approach, with a possible 10-year extension for attainment, is to provide a longer time frame to plan for and phase in necessary controls so as to minimize disruption. The purpose is not to put off facing the attainment problem until 1982. Therefore, any measure which is necessary to insure attainment by 1987 must be included in the 1979 revision if planning and implementation must begin now in order to be successful by 1987.
Under the conference bill, the Administrator will be required to promulgate plan revisions insuring NAAQS attainment by the appropriate deadlines where a State's plan is inadequate. Whenever the Administrator promulgates a plan revision, he will not be authorized to include the allowance for new source growth described in the second option above. Under an EPA plan revision, new and modified sources may be permitted only if sufficient emission offsets are secured prior to issuance of the permit.
AUTO EMISSION STANDARDS
The following table deals with the auto emission standards and what was done on this in conference as compared to the House bill.
[Table omitted]
This, of course, was one of the most difficult issues between the House and the Senate. The two versions represented, I think, the widest gap between the House and the Senate, and there were negotiations in both directions over a considerable time. The conference finally adopted the standards for hydrocarbons, carbon monoxide, and NOx which are indicated in the table I have
inserted in the RECORD.
The most important aspect of the conference agreement on this issue is its finality with respect to the achievement of the ultimate auto emission standards required for public health, by a date certain. It was the overriding sentiment of the conferees that we agree on a timetable which would not provide only more opportunity for the auto industry to lobby for further delay. It is high time this issue was settled; in fact, the Congress is long overdue in its final resolution of the issue. I would not have believed in 1970 that we would ultimately provide the auto industry for a longer period of time to comply with emission standards than the manufacturers themselves requested of President Nixon in 1969. So be it. We have finally completed the last round. The conference bill schedule contains no allowance for lobbying time. It does allow more than adequate lead time, but if the industry is to meet the final 1981 standards, the job must be started today. They have only one additional model year before the statutory hydrocarbon standard must be met in 1981. They have only two additional model years, 1979 and 1980, before all three of the statutory standards must be met, in 1981.
There are limited waivers available. The 1981 carbon monoxide standard may be waived for any model line of vehicles in 1981 or 1982 if the Administrator makes several specific findings: that public health does not require attainment of the statutory standard; that the waiver is essential to the public interest; that all good faith efforts have been made to meet the statutory standard; that control technology to meet the statutory standard will not be available, taking into account cost, driveability and fuel economy; and the study by the National Academy of Sciences does not disagree with his finding on availability of technology.
The applicant must apply for such a waiver for each model line he wishes to certify at 7.0 carbon monoxide instead of the statutory 3.4 standard. The Administrator is then required to make each of the findings specifically for each model in order to grant the waiver.
The determination of whether a carbon monoxide waiver is essential to the public interest or the public health or welfare of the United States will, of course, be affected by the performance of
the industry as a whole. If only a small percentage of cars appear unable to meet the statutory standard of 3.4 grams, the denial of such a waiver would not make it impossible for the industry to meet the basic demand for automobiles. In addition, the inability of only a small number of cars to meet the statutory carbon monoxide question may call into question the good faith effort of the manufacturer.
This waiver is based upon the feeling of some of the conferees that there may be difficulty in meeting the statutory standards across the board in 1981. I do not share that view myself. From the testimony I have seen, it is clear that if the manufacturers put forth a good faith effort, the statutory standards can be met on every single model line in that year. However, if a manufacturer does put forth a good faith effort, and it does develop that a particular model line will be unable to meet the 3.4 CO standard in 1981, then the waiver is available, if the Administrator makes certain findings.
This waiver is not a general waiver for all manufacturers, nor is it a general waiver for all models of vehicles produced by a single manufacturer. The waiver is intended to assist in the deployment of new technology. It is not to be considered a step in the direction of relaxation of the statutory carbon monoxide standard. The committee has received testimony that carbon monoxide emissions by vehicles on the road are double the amount permitted by the standards. There are projections that show that a relaxed standard for carbon monoxide would cause between 65 and 130 percent more violations of the health standard between 1980 and the year 2000. And, when we deal with reality, not with computer projections, we find that today, Louisville, Ky. is 263 percent above the carbon monoxide standards; Fairbanks, Alaska, is 254 percent above it; and New York City is 392 percent above the health based standard. In the face of this reality it would be absurd and irresponsible to consider relaxation of the statutory carbon monoxide standard. Therefore, the waiver in this bill is tightly constrained to apply only to the minimum extent necessary.
The NOx waivers are also narrow. Diesel engine vehicles are eligible for a single waiver up to 1.5 NOx from the 1981 standard of 1.0 NOx for 4 model years, through 1984, only if the waiver is necessary to permit the use of diesel technology in that class of engines or vehicles, in order to stimulate exploration of its value as a passenger car engine. This waiver is to be applied on a class or category basis, rather than across the board. It is only available for a particular class or category of light duty vehicles if it is necessary to the application of diesel technology to that class or category of light duty vehicles. Thus, for example, it may develop that the diesel waiver is unnecessary for demonstration of the diesel technology in the lower weight classes.
A similar waiver of the 1.0 NOx standard to 1.5 NOx is available for any 4 year period beginning in 1981, to allow the use of innovative technology. The conferees defined the category of innovative technology to assure that the waiver was used only for the purpose of stimulating new, currently unmarketed technologies. The Administrator must find specifically that such waiver will not endanger public health ; that such waiver will result in significant fuel savings at least equal to the fuel economy standard applicable in each year under the Energy Policy and Conservation Act; and that the technology has a potential for long term air quality benefit and has the potential to meet or exceed the average fuel economy standard applicable under the Energy Policy and Conservation Act at the expiration of the waiver.
The innovative technology waiver is intended to provide encouragement for manufacturers to develop innovative power train or emission control technology. It is not intended to be available for existing technologies.
Therefore, it may not be used for any technology which was utilized by more than 1 percent. of the light duty vehicles sold in the United States in the 1975 model year. In making such determination, the Administrator is to include variants of a given technology together in determining whether a 1 percent sales figure was reached, rather than considering modest variations of a given technology to be "different technologies." Then, to emphasize the experimental nature of this provision, the waiver cannot be applied to more than 5 percent of a manufacturer's production or 50,000 vehicles, whichever is greater, in any model year even though several innovative technologies may be tried by a manufacturer in a given year. The waiver may be granted for a period of up to 4 model years, but if a shorter period is sufficient to demonstrate the technology, as determined by EPA, the Administrator shall grant the waiver for a shorter period of time. And, only one waiver should be necessary to demonstrate the capability of a particular technology. Furthermore the waiver applies only to the nitrogen oxide standard, which can be waived to a level as high as 1.5 grams per mile. But, if a lower emission level is adequate to permit demonstration of the technology, then the waiver should only be given up to that lower level, and if the technology can be adequately demonstrated at 1.0 grams per mile of NOx, then no waiver shall be granted.
For both waivers there are additional protections offered: notice, and opportunity for public hearing, a requirement that such waiver not endanger public health, a requirement that diesel engines meet the average fuel economy standards in each year under the Energy Policy and Conservation Act, or amendment thereto, and a requirement that the innovative engines have good prospects of meeting the fuel economy standards at the end of the waiver period. And finally, in order to assure that the waiver will be targeted towards long term air quality benefits, the waivers may only be granted if there is a substantial likelihood that the engines will be able to comply at the end of the waiver period with the statutory emission standards. Thus the waiver is not intended to provide a loophole in the statutory standards, but only to provide an opportunity for technology development which may lead to greatly improved emissions performance in the next decade.
Mr. President, we have adopted an auto emissions schedule which meets our public health needs, and accommodates the industry's lead time requirements.
First, we have set a date in the near future by which all auto emission standards required for achievement of the health related air quality standards will be met. The statutory hydrocarbon standard must be met 1 year earlier, in 1980. This is significant because control of hydrocarbon is the key to control of oxidant, the irritant factor in photochemical smog.
In a year when Washington, D.C., is reporting more smog alerts than ever before, and rural States suffer statewide air pollution alerts, it is absurd to even consider a delay in statutory HC control. The conference bill requires this important step to be taken as soon as it is possible with due regard for lead time, in model year 1980.
The health related carbon monoxide standard is retained, despite strong urging, but with no health data, from the House to permanently relax the standard to 9.0 grams.
A firm NOx standard is also required. This, in conjunction with the hydrocarbon standard, speeds the cleanup of severe oxidant levels in our cities down to the health related ambient standard. The House bill, on the other hand, allowed such expansive waivers of the NOx standard up to the current 1977 level that the statutory standard would never have been required to be met.
Second, the conference substitute also provides a reasonable level of NOx control. The tightest NOx standard required by the House bill for all practical purposes is the current requirement of 2.0 grams/mile, which represents only 43 percent control compared to the 3.5 grams/mile emitted by uncontrolled autos in 1968. NOx control has clearly lagged behind that for HC and CO, where 83 percent control has already been achieved. The conference bill would require 71 percent control of NOx compared to uncontrolled vehicles, a level that will reduce national NOx emissions in 1990 by 4 million tons.
Third, the conference substitute provides enough lead time to meet tighter standards in 1980, despite industry arguments to the contrary. Data supplied by the manufacturers themselves show that they will enter, in a few months, the first phase of their emissions development program for that model year. This "production development" phase normally would last about 6 months, leading to basic system selection next April or May, so the lead time is clearly adequate.
Furthermore, present law requires compliance with even tougher standards in 1978, so we must assume that they have already done much of the production development to meet 1978 standards, or have simply completely ignored the requirements of present law. Finally, all manufacturers are already meeting the California standards of 0.41/9/1.5, which are more stringent overall than those in the conference bill in 1980.
Fourth, the conference bill provides flexibility through limited waivers to stimulate the development of innovative technologies, and the diesel, which require additional time to achieve the 1.0 NOx standard.
The carbon monoxide waivers provide the industry with time to solve the problem they appear to have in meeting the 3.4 standard in conjunction with a 1.0 NOx standard.
All in all, the conference bill auto emission cleanup schedule is an equitable one. I would have preferred some statutory cars in 1980, but I have accommodated the desires of other conferees in an effort to resolve this issue for the last time.
PRODUCTION LINE TESTING
With regard to production line testing, this bill does not specifically demand that EPA require testing on every car although we believe that EPA already has the necessary authority to do that. Rather the conference bill reflects a desire by the conferees to have production line testing provide assurances by means of short tests that, with reasonable statistical certainty, each car in the hands of individual consumers could pass an inspection maintenance short test. This does not of course interfere with EPA's existing authority to require full Federal test procedure tests on selected configurations of cars coming off assembly lines.
We have not adopted the Senate bill provision authorizing States to require new cars to pass inspection tests as a condition of sale in nonattainment areas but have susbtituted the requirement that dealers certify at time of sale that the vehicle would pass the I/M test. Since States will not be preempted from requiring that the vehicle pass an I/M test as soon after registration as desired, this compromise does not significantly change the Senate bill. Should vehicles fail this I/M test, of course, the consumer would be protected by the warranty.
In the area of performance warranty, we have provided for full coverage of the vehicle for 24 months or 24,000 miles. The manufacturer will be required to restore to standards any car which fails an inspection test comparable to the production line test unless the manufacturer can establish either that the owner's failure to perform the required maintenance as set forth in the owner's manual or improper vehicle operation caused the failure. Further, the performance of emission control devices or systems, i.e. components installed on or in a vehicle for the sole or primary purpose of reducing vehicle emissions, would be warranted for 5 years or 50,000 miles. If failures of such devices or systems cause a vehicle to fail an inspection test during this time, the manufacturer would again be responsible for the repair of the car unless he could show the cause of the failure to be improper maintenance or use.
The bill enacted before us today will enhance the effectiveness of the consumer's emission warranty by placing the burden of proof on the manufacturer to show that a vehicle has been improperly maintained. Consumers must only be able to demonstrate that they brought their vehicles to bona fide service facilities to have relevant maintenance performed. However, it is up to the manufacturer, if he chooses not to honor the warranty, to demonstrate that the maintenance actually performed on the vehicle which caused the vehicle to fail an emissions test constituted gross mal-maintenance which could not have been foreseen by the manufacturer.
A major improvement in the bill is the explicit recognition that warranty repairs can be made by any commercial repair facility using certified aftermarket parts. The cost of such repairs of course would be borne by the automobile manufacturers.
As mentioned previously, the Senate bill would require implementation of all reasonably available control measures in order to qualify for an extension in nonattainment areas. Since I/M programs are certainly reasonably available as well as highly effective, the Senate bill requires I/M in all nonattainment areas. The conference bill reinforces this by specifically requiring I/M in all areas which required transportation control measures as part of an implementation plan in effect on June 30, 1975.
DEALER CERTIFICATION TESTING NEW VEHICLES
The Congress does not intend that the new dealer certification procedure be a meaningless exercise producing a meaningless piece of paper. It is intended to assure that new cars meet the emission standards. If they do not, it is the responsibility of the manufacturer to make them right. The testing necessary is not only allowed by the act, but it is to be strongly encouraged.
The authority of States to require postsale, predelivery testing of new automobiles, if they wish, is not preempted by section 209 of the act. Therefore, States with inspection and maintenance programs in being or planned, like Arizona, Colorado, New Jersey, and Oregon and others do have an opportunity to provide a realistic assurance to customers that new autos as purchased do meet the emission test required by the inspection and maintenance program. This opportunity for States to require postsale, predelivery testing can be just as helpful in reducing excess emissions as testing of in-use vehicles from time to time later on during their useful life. Therefore, States containing regions where primary air quality standards are being exceeded for auto-related pollutants are especially encouraged to consider postsale, predelivery testing as an attainment strategy.
Other States may also establish a similar postsale, predelivery test. This would be an excellent way of verification of the dealer certification provided in section 212 of the Clean Air Act Amendments of 1977, clearly making it more than just a paper requirement.
FUEL ADDITIVES
The conference adopted an amendment to deal with the problem of the fuel additive MMT which will effectively deal with this situation. It will also prevent the untested use of additives with cavalier disregard for harmful effects on emission control systems and devices.
The Administrator of the Environmental Protection Agency has been given broad authority to prohibit the use of an additive expeditiously between the period 6 months after enactment until September 15, 1978. At that point, the burden of proof is put on the manufacturer. Unless he can demonstrate to the Administrator that the additive is not harmful to emission control systems or devices, the additive is banned from use. The standard of proof to be met by the Administrator if he undertakes expedited action is the same as that to be met by a manufacturer to obtain a waiver of a prohibition of an additive. It must be shown that such a substance does not cause or contribute to the failure over its useful life of an emission control device or system to comply with emission standards to which it has been certified pursuant to section 206.
The measure of failure is noncompliance with the emission standards to which a car has been certified, taking into account deterioration factors. If an additive would cause or even contribute to noncompliance with an applicable emission standard at any time in the 5-year/50,000-mile useful life of an emission control system or device, the Administrator may not waive the prohibition of any additive not substantially similar to the certification fuel used in model year 1975 or subsequent model years.
As has been the interpretation in the past, the term "emission control device or system" means the entire emission performance of a vehicle. Thus, if a fuel or fuel additive causes an increase in engine emissions so as to increase tail pipe emissions or interferes with performance of a specific device or element of emission control so as to cause or contribute to the vehicle's failure to meet the standards at any point in its useful life, the Administrator could not waive the prohibition.
INDIRECT SOURCES
No conference allows one body to win on all the issues. We had to accept a number of measures that I would have preferred not to accept. I have little taste for the kind of exemption the House voted to give to so-called indirect sources. All sources ought to carry a fair share of the responsibility of cleaning up our Nation's cities. The limitation provided on the ability to control indirect sources is not an environmental step forward.
However, I underscore once again the availability of indirect source regulation as a tool to be used at the State and local levels. Although the Administrator may require indirect source review programs only with respect to Federally funded projects, he may approve and enforce an indirect source program adopted by a State as part of its implementation plan. This provision does not affect in any way any such program already approved by the Administrator and contained in a State implementation plan.
It is hoped that EPA will share its expertise and experience in this area with the States which may desire to implement such a program.
WARRANTIES
It is also unfortunate that the aftermarket issue became so volatile that the conferees felt it was necessary to reduce the warranty coverage provided in the performance warranty under the Clean Air Act. However, the retention of the original 5 year/50,000 mile performance warranty for the components of engine systems which function primarily for emission control purposes was a major victory for the Senate. I think we have finally resolved the issue in a way satisfactory to both the consumer and the aftermarket industry.
We retained other significant measures to protect the consumer and the aftermarket which were in the Senate bill. These relate to maintenance instructions, replacement costs, and the prohibition on any communication to a car owner that his warranty is conditioned upon the use of manufacturer parts and services. The Senate also accepted strengthening amendments from the House bill which prohibit the invalidation of a warranty by the use of any part certified under regulations promulgated by the Administrator not to result in failure of an engine to comply with emission standards and require a boldface statement in car owners' manuals that maintenance may be performed at any service shop, with any certified part without invalidating the warranty.
Implementation of these amendments will enable a consumer to discharge the proper maintenance obligation under section 207 by making a reasonable effort to obtain proper maintenance, as in the use of a certified part, without having to counter a charge by the vehicle manufacturer that the non-original equipment part caused the emissions failure. The threat of such conflict might otherwise induce owners to avoid non-original parts in favor of original equipment parts.
The bill also addresses problems that could arise if a manufacturer certifies a car as requiring a replacement prior to the 50,000 miles of any part of device "principally for emissions control." When the vehicle industry uses parts related solely to emissions control, it can and should build them to avoid periodic replacement. But in those rare instances when that is not feasible, the cost should be included as an initial part of the price of the vehicle, not added later. This is intended to affect only major parts which are a part of the vehicle solely for emission control purposes, such as the catalytic muffler, air pump, or thermal reactor. It does not extend to spark plugs or any part of the system necessary for the basic operation of the vehicle. And this requirement only extends to parts whose cost is greater than 2 percent of the retail cost of the vehicle. The replacement cost provision does not apply to heavy duty vehicles.
The committee is aware that there is potential for manufacturers to charge for such replacements, which are then never installed. The Administrator should discourage such a replacement plan, and must closely monitor the replacement outlays versus the sums paid by consumers under this provision.
With respect to the actual length of the warranty, the conferees agreed to set the 207(b) performance warranty at 24 months/24,000 miles. During this warranty period, the vehicle manufacturer would be required to bring into compliance with emission standards any car which failed an inspection and maintenance test. The warranty could be invalidated only upon a showing by the manufacturer that the owner did not perform the required maintenance or repair as set forth in the owner's manual or abused the vehicle in its operation. Requisite repairs and maintenance could be performed by any establishment — including an independent garage or service station — that uses parts certified in accordance with section 207(a). After the 24 months/24,000 mile warranty terminates, the performance warranty on the emission control system under section 207(b) would require the repair or replacement only of an "emission control device" or "component designed for emission control." The vehicle manufacturer's warranty after 24,000 miles, thus, would be limited to the catalytic converter, thermal reactor or other component installed on or in a vehicle for the sake or primary purpose of reducing vehicle emissions and would be invoked in the event of failure of the vehicle to meet emission standards at any time up to 60 months. Such limitation does not apply to section 207(a) warranties or to section 207(c) recall actions.
To the extent permitted by the Moss-Magnuson Act any establishment that uses certified parts could provide parts and services as specified in the warranty at any time during or after the warranty. This would include the right to perform work covered by the section 207(b) warranty with the right to reimbursement by the vehicle manufacturer, to the extent permitted by the Moss-Magnuson Act or by subsequently enacted legislation which amends or supersedes that act. The provisions of this section are not intended to supersede or alter warranty provisions provided under any other law.
OZONE
The stratospheric ozone protection section provides for a comprehensive study of the cumulative effects of all substances, practices, processes, and activities on the stratosphere. This section establishes a Federal coordinating committee to review and comment on plans for research and the results of such research and studies. Furthermore, this section provides the Administrator with authority to propose regulations for the control of any substance, practice, process, or activity which may reasonably be anticipated to affect the stratosphere, if such effect in the stratosphere may reasonably be anticipated to endanger public health or welfare.
This section assures that there is adequate Federal authority to prevent all actual or potential risks to the stratosphere — including, for example, any risk posed by the supersonic transport — and complements the existing statutory provisions in the Toxic Substances Control Act, the Federal Food, Drug, and Cosmetic Act, the Federal Insecticide, Fungicide, and Rodenticide Act, and the Consumer Product Safety Act. This provision is not intended to prevent the Administrator from relying upon other authority within his jurisdiction in appropriate cases. Should the Administrator determine that further regulation is warranted in the 2-year period following enactment during which time further research and evaluation will be conducted, he should take any necessary steps within his authority to reduce or eliminate such risk.
I endorse the actions the Federal agencies have already taken in addressing the potential threat to the ozone layer from halocarbon emissions and wish to encourage further coordination of regulatory and research activities.
ECONOMIC IMPACT ASSESSMENTS
The requirement that EPA must perform Economic Impact Assessments on certain regulations is intended to assure that EPA does a responsible assessment of the cost and economic implications of its regulatory actions. The intent here is to make sure that appropriate information is made available regarding these impacts; but this section is not intended to require that Agency resources be devoted to doing analyses that will not provide useful information, nor is it intended to allow delay of, or alteration in the criteria for, regulatory actions.
Consequently, the Administrator may make reasonable judgments about which analyses must be done to comply with this section and the depth of analysis required. For example, the Administrator might reasonably conclude that consideration of the inflationary effects of a given regulation should be limited to analysis of price increases for directly affected products if the magnitude of expenditures is small enough to cause insignificant effects on nationwide price indices; hence, in such a case macroeconomic projections need not be performed to comply with this section. Nor is it intended that detailed analyses be done to quantify the impacts of actions where the impacts are obviously inconsequential.
It is not intended that compliance with this section should place an undue burden on Agency resources. The Agency is currently meeting the intent of Congress in this regard in most cases through compliance with Executive Order 11821 on inflation impact statements.
ADMINISTRATIVE PROCEDURES
I am pleased to report that the Senate position prevailed with respect to changes the House had proposed in the administrative procedures applicable to EPA's actions under the Clean Air Act, which might have had grave consequences for the entire regulatory program.
The House bill would have overformalized the rulemaking procedures of the Environmental Protection Agency. The administrative procedures of the Federal agencies have only in the past decade recovered from the stasis induced in the 1950's by an overdose of procedures suitable for the courtroom, but unsuited for policymaking in Federal administrative agencies.
The Senate conferees succeeded in eliminating a House provision that would have provided for cross examination in EPA rulemaking. In the minds of the Senate conferees, the potential for abuse in this proposal far outweighed any advantages it might have had.
The House had also proposed that the rules promulgated by EPA be subject to a different standard of review in the courts — the "substantial evidence" test — than those promulgated by other Federal agencies. The Senate conferees could see no reason why the Environmental Protection Agency should be singled out in this way, and we were able to persuade the House conferees to agree with us. Thus, the conference bill continues the usual standard — the "arbitrary and capricious" test — for review of the agency's actions.
I think it is important to emphasize this action of the conference because some continue to suggest that for some reason EPA's actions should be scrutinized more carefully than those of other agencies. I fail to see the logic of this, and I think I speak for the majority of the members of the conference committees. I am not suggesting that the courts should not discharge their duties with respect to EPA as they do with other agencies; at the same time, I want to emphasize the intent of most members of the two committees that nothing in the bill or its legislative history was meant to single out EPA for special scrutiny either.
What disturbs me is the thought that the real issue here may not be procedure, but rather substance. To the extent that this may be true, I must strongly reiterate my objection to it.
Mr. STAFFORD. Mr. President, the Senate, the Congress and the country have waited a long time for this conference report. It is my hope that the wait will soon be over.
The conference agreement just passed by the House is a compromise. I am sure no one who participated in the conference is completely satisfied. I am sure that no one who is familiar with the issues supports every section of the bill.
But it does represent a reasonable middle ground between the positions of the two Houses on the major issues.
I am not completely happy with the schedule established for auto emissions. Nor were all other Senate conferees.
But the numbers do promise progress in automobile exhaust clean up. Those of us who wanted the final standards in place in 1980 were forced to give up 1 more year. But those who wanted to delay final standards until 1982 and then set more relaxed emissions levels also gave in.
The conference sets the final levels as they were in the Senate bill, with the possibility of only a 2-year waiver for carbon monoxide emissions from 3.4 up to 7.0 grams per mile.
Perhaps more important than the final numbers are provisions to reduce the likelihood that emissions controls in use will deteriorate drastically. Two factors contribute to better in-use results: greater care in the design and production of new cars and better maintenance by car owners.
Here again, the conference bill is not all some of us wanted, but it does promise some improvement in both factors. Dealers are required to certify that new cars will meet emissions standards. If a car fails an inspection test before the expiration of 24 months or 24,000 miles, the manufacturer must pay to bring it into compliance if the owner has performed routine maintenance.
Because areas with auto-related air problems are required by the bill to have inspection and maintenance programs, the warranty program which has been part of the law since 1970 may finally begin to have some bite.
I cannot overstate the emphasis the conferees place on the need for EPA to develop a short emissions test which correlates with certification testing. Such a test is needed to improve testing of automobiles coming off the assembly line and to make effective State I and M programs.
The need will grow as States begin to implement I and M requirements and consumers demand a test which gives them recourse against the manufacturer for deficiencies in auto design or assembly. While the conferees did not mandate it, I would say that a crash program to develop such a test should be among the agency's highest priorities. The payoff in improved air quality would be tremendous.
The differences between the House and Senate over autos gained the bulk of public attention, but several other issues are also of significance for clean air in this country.
The conferees adopted a program to prevent significant deterioration in clean air areas. While the provision differs from the one carefully developed by the Senate Environment and Public Works Committee, I believe it strikes an acceptable balance between air quality values and economic growth.
The major responsibility for case-by-case decisions on new facilities rests with the States. The determination of which areas to designate as most deserving of protection rests to a great extent with the States. The conferees rejected House provisions vastly expanding the territory required to be included in class I areas.
The Senate bill's flexibility to vary — up or down — from specified ceilings for emission increases in class I areas was retained.
In addition, a modification of the so-called Breaux amendment — the Stevens amendment in the Senate — was adopted. This would allow the President to approve a permit for a new facility where a Governor and the Federal land manager disagree on its adverse effects on a park or wilderness area.
As the Senator from Maine has pointed out, the significant deterioration scheme contains a great deal of flexibility. Its most important function may be to require thorough analysis of the effects of proposed facilities on valuable national lands before irrevocable decisions are made.
The third major issue confronting the conferees was how to deal with proposed new sources of pollution in dirty air areas. The House.and Senate had dealt with this issue in similar ways, and the conference agreement, as ably described by the Senator from Maine, is a combination of the two provisions.
I would only like to note that the so-called "nonattainment" issue, which was not the subject of much controversy in conference, embodies one of the most difficult questions in our quest for clean air.
We will continue to be faced with the problem of how to strike a balance between health and growth. The resolution in this year's bill is not the resolution for all time. But it is, in this Senator's view, reasonable at this time.
The conferees did modify a provision in which I have special interest. The Senate bill included a requirement that the Administrator of EPA arrange for warnings of unhealthy air at access points to metropolitan areas. The provision contemplated highway signs and notices at major transportation terminals.
The purpose for the provision, which I introduced, was to bring to public attention the need to do better in cleaning up our air. Until the public is generally aware that air in many areas is unhealthy, there will be resistance to some of the tough measures needed to control emissions.
The conference report modified the Senate provision to require States to implement measures which effectively notify the public of unhealthy air episodes and areas. The report goes further and requires that the public be warned of the hazards associated with pollution and informed of measures which may improve air quality.
It was clear from the discussion that the conferees did not consider weather reports containing air quality information as fulfilling the bill's requirements.
States are intended to have wide latitude in devising their notification and education campaigns but they must propose measures substantially more effective than current practices in order to have their plans approved.
Mr. President, I began by saying the country has waited a long time for this bill. In order not to contribute to further delay, I will conclude by urging all my colleagues to support the conference agreement in the interest of cleaner air.
Mr. MUSKIE. Mr. President, I am sure all my colleagues are aware of the controversy underlying this issue on the occasion of our consideration of it in the Senate, the controversies underlying the deliberations of the conference committee, and the questions that have been raised about the conference result.
I want to say that we have made every effort to clarify the meaning of the conference result in a way that reassures all those who have raised questions of which we are aware. As a result, it is not my intention to call for a roll call vote. If there are those in the Chamber who would like to have a roll call vote, I would suggest that they indicate that at this point in order that Senators may make their plans for the rest of the evening.
It is my understanding that that will be the last item of business for the evening. We will spend a decent amount of time explaining what we did in conference so that the record will reflect what we did, but I see no need at this point for a roll call vote to resolve any outstanding issues of which I am aware.
The conference result and our explanation of it seems to have reassured those who had questions that the Senate conferees effectively represented the point of view of the Senate and resolved the outstanding issues in a way which is consistent with the action taken by the Senate.
So that unless any other Senator at this point indicates the desire for a roll call vote, there will be no more roll call votes this evening, if I may speak for the majority leader on that point.
I would like Senators to advise on that question.
I yield to the Senator from Idaho.
Mr. McCLURE. Did I understand that the Senator is not talking about just of this conference report, but other votes throughout?
Mr. MUSKIE. There will be absolutely no roll call votes this evening.
Mr. McCLURE. I thank the Senator.
Mr. MUSKIE. I have an understanding that no roll call votes will be requested on the clean air conference report and we will pass that by voice vote.
Mr. SCOTT. Will the Senator yield?
Mr. MUSKIE. Yes, I yield to my good friend from Virginia.
Mr. SCOTT. A unanimous consent that there would not be a vote on final passage of the conference report?
Mr. ROBERT C. BYRD. Mr. President, I think the Senators can be taken on their word. The Senator who is managing the conference report has indicated that there will be no roll call vote if nobody at this time asks for it.
So if no one asks for it now, the Senators understand there will be no more roll call votes.
Mr. STEVENS. Will the Senator yield to me on this?
Mr. MUSKIE. Yes.
Mr. STEVENS. I want to say to the Senator from Maine, what he has said is correct. We have spent a great part of the afternoon and evening working on these understandings. To my knowledge, there are none left on this side, none of the misunderstandings are left on this side, and I make no request for a roll call vote.
I must express my admiration for the way the Senator from Maine has handled the afternoon and evening and has eliminated the cause of the misunderstandings.
Mr. MUSKIE. Let me make this clear to my colleagues, I am not one to shrink from an interesting contest on the floor of the Senate, as Senators understand. But, on the other hand, I am interested in effective legislation, and I think this clean air conference report represents effective legislation in the sense that it is reflective of the reasonable kinds of accommodations necessary to make it possible for Senators of widely differing points of view to reach agreement on a national policy.
Mr. STEVENS. I shall not ask for a roll call vote, but I would like the record to show, if there were one, I would vote for this bill, notwithstanding the fact I voted against it when it left the Senate before as it went to conference.
Mr. MUSKIE. I thank my good friend from Alaska.
I yield to the distinguished chairman of the committee.
Mr. RANDOLPH. Mr. President, I commend Senator MUSKIE.
The record, of course, indicates, as Senators know, that he was the chairman of the conference of the Senate and House on this very complex but important measure.
The Senate certainly does not necessarily follow any action taken at a prior time by the House of Representatives, but I think it is important to Senators to know that this conference report was agreed to in the House earlier today without a roll call vote on final passage.
Mr. President, the conference report on the Clean Air Act Amendments represents more than 3 years of effort by the members of the Committee on Environment and Public Works. Work on this subject was initiated early in the 94th Congress, continued for 2 years and has been completed after 7 months of the 95th Congress. It is a thorough and careful revision of the basic statute which is intended to reduce pollution of the air from all sources in the United States.
Legislation of this type was last enacted in 1970. At that time we established a broad program to achieve steady reduction of pollutants from both stationary and mobile sources. Progress has been made but the job is incomplete. The repeated pollution alerts in Washington, D.C. this summer are just one indication that we must continue with a vigorous yet reasonable air pollution control program.
The measure before the Senate continues that program but it recognizes that the goal of enhanced environmental quality must be sought in the context of other national objectives. Some of the most extensively discussed portions of this measure, in fact, are those providing a mechanism to continue economic growth at the same time we reduce pollution levels. I believe we have succeeded in providing this balance so that pollution can be abated while orderly economic growth is sustained.
Mr. President, the conference with the House of Representatives on this legislation began in July. The conference committee met on eight occasions. Approximately 90 points of disagreement existed between the Senate and House bills. I believe it is an indication of the determination of both Senate and House conferees that these differences have been resolved and the report is before the Senate for final approvement. We moved to expedite our consideration of the issues but did not rush into hasty, ill-conceived solutions. The product of these deliberations is a measure that accommodates the approaches of both the Senate and House of Representatives and continues the basic thrust of the clean air program.
While the general objective of the Clean Air Act is the continued reduction of pollution, this bill recognizes that industrial and commercial activity cannot be and should not be stopped to achieve this purpose. The bill, therefore, enumerates conditions under which commercial and industrial expansion can take place in areas where air quality standards have not been achieved as well as in areas that are clean. The heaviest concentrations of pollution are generally found in industrialized urban areas. Most of the need for continued expansion is likely to occur in those areas. The conference report, therefore, establishes procedures under which carefully controlled growth will be permitted. The price of this expansion, however, is continued progress toward pollution abatement.
At the same time, the Members of the Senate and House recognized that there would need to be development in areas that are now relatively free of air pollution. Although this issue is of primary concern to western States, it is applicable throughout the country. The present policy of sharply restricted growth in clean air areas is, therefore, modified by the bill so that development can take place in these portions of the country. Such activities must take place under carefully controlled conditions to assure that air quality is not severely affected.
The other general area of major concern is the reduction of pollution from motor vehicles. The revision of those portions of the act relating to mobile sources was one of the most difficult tasks faced by both the Senate Committee on Environment and Public Works and by the conference committee. The standards set in the 1970 act have not been achieved and cannot for various reasons be achieved at this time. An extension was necessary. The Senate conferees felt that the extension should not be so lengthy as to result in a relaxation in efforts to achieve the goal of automobiles which emit minimum amounts of pollution. The extra time desired by the industry is provided in this bill, but the general thrust of the pollution reduction program is maintained. I hope, Mr. President, that this is the last time that the Congress will be called upon to act on this subject. I believe that the conference agreement establishes realistic emission standards and a realistic timetable for their achievement.
Mr. President, during development of this legislation I was particularly concerned with the issues that relate to the production of energy in our country.
Specifically, I gave attention to those portions of the bill which relate to the utilization of coal in meeting these energy needs. I have long believed that a clean environment and energy independence are compatible. We must expand our utilization of domestic coal to meet energy needs and I am convinced that this can be done without reducing our commitment to improved environmental quality.
If we are to use more coal, adjustments must be made in the pollution program. The amendments to the Clean Air Act, therefore, do not envision any relaxation of air quality standards but provide mechanisms to facilitate the continued substitution of domestic coal for oil and natural gas. In cases when conversion of coal is taking place, compliance deadlines can be adjusted. Elsewhere in the conference report are requirements that advanced technology be used on coal burning facilities to assure the lowest possible level of emissions.
Yet another coal related provision is one I sponsored with the Senator from Ohio, Mr. METZENBAUM. This section provides that sources burning coal or those ordered to convert to coal can be directed to use locally available supplies rather than importing their fuel from other areas. Recognizing that in some instances this may involve the burning of high sulfur coal, the provision also requires the use of pollution control technology to keep emissions at the lowest levels.
Mr. President, I have discussed briefly some of the major points of this conference report. Like the program it modifies, this legislation is broad and comprehensive. It affects individuals and businesses throughout the United States. To achieve the clean air goals we established in 1970, a substantial effort will continue to be required but I do not believe the requirements of this legislation will impose intolerable burdens on any individual or segment of our society. The conferees were fair and balanced in their approach to this bill. I believe it to be a well-reasoned response to a complex and difficult problem. Mr. President, I urge the Senate to approve the conference report.
Mr. GARN. The bill requires analysis of "areas which may be affected by the proposed redesignation."
Do you mean local area "directly"affected, or areas where coal is mined a long way away, or exactly what?
Mr. MUSKIE. The term used in the bill is "of the area so redesignated." So only governments representing people in the area must give approval. This means the area within the boundary of the proposed area.
Mr. GARN. If a plant is sited near a mountainous area and modeling indicates that violation would occur on a few days a year, could the State redesignate only that small area class III.
Mr. MUSKIE. Yes, but it must be within the context of the class III designation process set forth; a State could so redesignate if the criteria in the approved implementation plan were followed.
Mr. GARN. Mr. President, I would liketo ask the gentleman from Maine some questions.about the intent of the conferees on a matter pertaining to class II.
It is my understanding that in the conference a consideration for the differences between high and low terrain was taken into consideration with respect to class I areas, is that correct?
Mr. MUSKIE. That is correct.
Mr. GARN. I understand that the conferees made no allowance for any kind of a variance in class II because the conferees agreed to increase a key pollution increment by 50 percent, and also provided three classes. Such problems can be solved, therefore, by the ability of the Governor to redesignate lands from class II to class III. Does this mean that the bill is somewhat flexible to meet these kinds of special problems in local areas?
Mr. MUSKIE. Yes, to the extent that it does not violate the purposes, procedures or requirements of this part and allow a deterioration of air quality in those areas. If it is necessary to accommodate an industrial facility in a class II area, the bill does provide for the means by which the Governor could redesignate the areas class III.
Mr. GARN. One of the major problems in establishing the effect of pollutants is the difficulty in establishing modeling techniques which fit the circumstances. Is it the intent of the conferees that the EPA require use of modeling techniques which will take into account and accurately predict air quality when siting plants in high terrain?
Mr. MUSKIE. The conferees recognize the problems related to modeling and siting in areas of elevated terrain. It is intended that those areas can be redesignated if necessary, and that appropriate and accurate modeling techniques be developed by the EPA through an air quality modeling conference, including models which apply in cases of plants proposing to site in areas where impact on high terrain occurs.
Mr. GARN. Is the analysis reviewable in the courts for adequacy?
Can any citizen bring the suit, or only EPA?
Mr. MUSKIE. The analysis would be reviewable in court under existing legal procedures. Either side would have access to the courts. Citizens have the right to sue in court to enforce certain specific requirements of the State plan set forth by the State.
Citizen suits are limited against a source to certain requirements of the act and the administrator for failure to perform a nondiscretionary function.
Mr. GARN. Can land currently under study as part of a "roadless area review," or for possible wilderness, be redesignated class III?
Mr. MUSKIE. Yes, as long as it has not been established as a wilderness area. Once it has been made a wilderness area, it is a class II area. It can be redesignated class I by the State, but not class III.
Mr. GARN. Is it your opinion that this entire redesignation process would take months, rather than years?
Mr. MUSKIE. Yes, if the full procedures set forth in the State plan have been fulfilled. On the other hand, if the redesignation were for a specific county, and that county had not approved the redesignation, then it might take years for the county to give its approval, or it might never give such approval.
If no air quality data had been gathered in the area, then a few months might not develop adequate data. As long as a variety of weather conditions and other such factors are considered, the analysis will be deemed adequate.
Mr. GARN. Who is the Federal land manager?
Mr. MUSKIE. The Federal land manager is the Secretary of the Department with jurisdiction over the land involved. He makes the decisions involved.
Mr. GARN. One of the major problems in establishing the effect of pollutants is the difficulty in establishing modeling techniques which fit the circumstances. Is it the intent of the conferees that the EPA be directed to use modeling techniques which will accurately reflect the differences between high terrain as compared to ordinary terrain?
Mr. MUSKIE. The conferees recognize the problems related to modeling and siting in areas of elevated terrain. And that modeling techniques should be developed by the EPA to more accurately reflect the condition in high terrain areas and do not discriminate by applying inappropriate techniques in high terrain areas.
Mr. GARN. The act requires the State to provide an analysis of the impacts of the proposed redesignation. The effects specified in the act are health, environmental, economic, social and energy.
How extensive must this analysis be?
How long would it take to prepare such a document?
If the area in question is fairly small, can this process be shortened?
How long must the analysis be available prior to the public hearing?
Mr. MUSKIE. The State will revise its State plan to establish the appropriate procedures. So the initiative and the basic decision rests with the State. EPA then approves the State plan. Those procedures then govern all redesignations in a similar fashion. Only if EPA found some significant flaws in the State procedures proposed would EPA disapprove those, and then EPA would only disapprove the portion of the plan that was flawed. EPA would then promulgate that portion of the plan, and it would provide the certainty desired in redesignating class II to class III.
The length of the documents, the time the analysis would be available for public examination, and other such important details would be set forth in the State plan.
Mr. GARN. EPA has the right to disapprove the redesignation on procedural grounds. Can you give me some examples of some procedural error which might trigger a disapproval?
Mr. MUSKIE. Yes. If the State held a hearing without having the analysis available prior to the hearing, then that would violate the procedural requirements and might trigger disapproval.
If the redesignation had not been approved by the appropriate local governments — principally by resolution — the redesignation could be disapproved.
If no notice had been given regarding the hearing, the redesignation could be disapproved.
Mr. STEVENS. Mr. President, I would like to engage the manager of this conference report in a colloquy regarding the status of certain Federal lands located in Alaska. My understanding is that the national resource lands, as designated by the Federal Land Policy and Management Act of 1976, which were formerly referred to as the public domain are class 2 lands under this conference report and subject to redesignation as class 3 under appropriate authority outlined in the report.
Alaska has nearly one-half of the country's public lands and the great majority of the national resource lands.
However, virtually all the national resource lands in Alaska are withdrawn under specific public land order or by legislation pursuant to a particular Federal purpose. My question is what the status of these withdrawn lands are under the conference report.
There are three separate withdrawals that act upon the national resource lands in Alaska. All are related to the implementation of the Alaska Native Claims Settlement Act which was passed in 1971. The first of these withdrawals is a statutory withdrawal under section 11 of the Alaska Native Claims Settlement Act for selection by Alaska Natives pursuant to the entitlement granted them under the legislation. Additionally, other lands are withdrawn for selection by public land order for Native selection pursuant to the Claims Act.
The second type of withdrawal is what we call a d-2 withdrawal. This withdrawal extends to approximately 80 million acres of the national resource lands which are currently under study as potential additions to the national parks, wildlife refuges, wild and scenic rivers, and forest systems pursuant to section 17(d) (2) of the Alaska Native Claim Settlement Act. The third type of withdrawal extends to the remaining national resource lands in Alaska and the d-2 withdrawals and those lands withdrawn for native selection.
The Secretary, under section 17(d) (1) of the Alaska Native Claims Settlement Act has withdrawn the remainder of the national resource lands and these other lands under what we call a d-1 underlay pursuant to the development of regulations for classification for specific land uses on these lands.
I would ask the manager of this report what the status of these lands are. I presume they are class 2 lands subject to redesignation as class 3, but it is very important that such definition be made clear. The fact that these lands are withdrawn for potential study as areas that may eventually be designated as class 1 or class 2 lands not subject to redesignation leaves this matter unclear. Please clarify this for me.
Mr. MUSKIE. There is no question that these lands are all class 2 lands subject to redesignation as class 3. The specific Federal withdrawal pursuant to a public land order does not affect their status under the Clean Air Act. All national resource lands, so long as they remain national resource lands, are class 2 lands subject to redesignation under the act to class 3. The only class 2 lands not subject to redesignation to class 3 are listed in the statute. The national resource lands, withdrawn or otherwise, are not among these and therefore are subject to redesignation.
If these lands are ever established as one of the land categories that cannot be designated class III — such as national monuments or national wildlife refuges — then the class III redesignation would no longer be available for that specific area unless specifically provided by statute.
Mr. STEVENS. I am thankful for my good friend Senator MUSKIE's clarification of this matter. His explanation of the conference report’s treatment of the air quality classification for the lands in question eliminate any confusion as to their status.
Mr. McCLURE. Mr. President, to provide an explicit understanding of the requirements of section 128, regarding visibility protection for Federal class I areas, I would like to ask the distinguished floor manager several questions. First, are the provisions of this section limited to only existing major stationary sources which cause or contribute to visibility impairment in Federal class I areas?
Mr. MUSKIE. Yes, the Federal interest is limited to existing sources, which have been in existence 15 years or less. Visibility restrictions with regard to new sources would result under the provisionsof section 127, concerning prevention of significant deterioration.
Mr: McCLURE. Once a promise has been granted to a new source and the question of visibility has been considered as a part of air quality values under the significant deterioration provisions, could the source be subjected later to the requirements of section 128?
Mr. MUSKIE. It is my understanding that that was not the intent of the conferees.
Mr. McCLURE. When a new source satisfies the requirements of significant deterioration increments but is determined by the Federal Land Manager to conflict with the air quality values of a class I area would the Governor's decision to grant a permit be final for the purposes of visibility as well as for significant deterioration.
Mr. MUSKIE. Yes, it is my understanding that the conferees intended to provide no additional basis for any person to seek further regulation under section 128.
Mr. McCLURE. And while those existing sources are limited to the 28 major sources contained in the Senate bill's definition of major emitting facilities, exempting any such source which has the maximum potential to emit less than 250 tons per year, Federal guidelines apply only to fossil fuel fired generating plants in excess of 750 megawatts?
Mr. MUSKIE. That is correct.
Mr. McCLURE. Under the conference agreement, does the State retain sole authority for identification of sources for the purpose of visibility issues under this section?
Mr. MUSKIE. Yes; the State, not the Administrator, identifies a source that may impair visibility and thereby falls within the requirement of section 128.
Mr. McCLURE. And does this also hold true for determination of "Best Available Retrofit Technology"?
Mr. MUSKIE. Yes; here again it is the State which determines what constitutes "Best Available Retrofit Technology," as defined in section 128. The Federal guidelines apply only to the large power plants we have described.
Mr. McCLURE. And, in making such determinations, the State must take into consideration the costs of compliance, the energy and non-air quality environmental impacts of compliance, any existing pollution control technology in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result?
Mr. MUSKIE. That is specified in the act.
Mr. McCLURE. With regard to citizen suits, the House bill prohibited such suits in order to compel attainment of the national goal by a specific date. Is my understanding correct that this provision was accepted by the Senate conference?
Mr. MUSKIE. Yes; your understanding is correct. And, the prohibition is specifically discussed in the statement of managers. In addition, the Senate accepted the House prohibition against the Administrator imposing any mandatory or uniform buffer zone around a Federal class I area, in order to accomplish the purpose of section 128.
Mr. McCLURE. I thank the distinguished floor manager.
Mr. HART. The Senate bill contained a provision to remove the preemption which is in existing law, preempting States from "requiring certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as a condition precedent to the initial retail sale, titling (if any) , or registration of such motor vehicle, motor vehicle engine, or equipment." The Senate bill would have allowed States with an emission inspection and maintenance program to require autos to pass a State inspection test prior to sale, with the cost to be borne by the manufacturer. Does that mean that States are preempted from emission inspection tests under the act, as amended by the conference agreement?
Mr. MUSKIE. No. States may conduct such testing, and may include it as a transportation control measure in the State implementation plan, if they wish. However, the testing must be conducted at a time consistent with the requirement of section 209 of the act which you have just cited.
Mr. HART. I understand that four States: Arizona, Colorado, New Jersey, and Oregon already have acted to provide for presale testing of new vehicles, but their plans are in abeyance because of the statutory restriction under section 209. Do these States have any recourse? Apparently they feel that this is a necessary part of a clean air strategy.
Mr. MUSKIE. Yes, those States do have recourse. They may test automobiles at any time after initial retail sale, titling, or registration. That opportunity is not preempted under section 209 for those States or for any other State for that matter.
Mr. HART. How could such a procedure work to insure that the purchaser of a new car is getting a car which does meet the required emission standards?
Mr. MUSKIE. It would be presumptuous of me to suggest how any individual State might choose to accomplish its goals in an inspection and maintenance program. However, some possibilities come to mind. There could be a postsale, predelivery test required by State law, and passage of that test could be a requirement for driving the newly purchased vehicle on the highways of the State. Or, it could be made a requirement for obtaining a sticker similar to a safety inspection sticker, which would have to be obtained within a period of a few days after initial purchase and perhaps renewed from time thereafter. Or, a temporary registration could be issued at the time of purchase, with the emissions test made a requirement for re-registration after the temporary period had expired. These are just some ideas that would be permissible under the law, and I am sure that the States in their wisdom can develop many others. Therefore, I believe the States you have mentioned, including your own State of Colorado, can establish and enforce a meaningful inspection and maintenance program that will assure that new cars being driven on the roads of Colorado and other States do meet the emission standards.
Mr. HART. Thank you, Mr. Chairman.
Mr. RANDOLPH. I wish to clarify the effect of the conference report with respect to coal conversion. It is my understanding that the conference agreement follows the Senate bill in providing greater flexibility for sources converting to coal from other fuels. Under the provisions I sponsored in the Senate bill, the ability to convert to coal would be facilitated.
Is it the understanding of the able floor manager who chaired the Senate-House conference, that by adopting these provisions the greater use of coal will be encouraged?
Mr. MUSKIE. The Senator from West Virginia has been diligent in encouraging the expanded use of coal in environmentally sound ways. He is correct in his interpretation of the conference report in this respect.
TRANSFERENCE OF AUTHORITY ON RADIOACTIVE MATERIAL FROM NRC TO EPA
Mr. JOHNSTON. Mr. President, the Clean Air Act amendments currently being considered include a provision whereby responsibility for establishing emission standards for radioactive materials will be transferred from the Nuclear Regulatory Commission to the Environmental Protection Agency (EPA) . In addition to transferring these currently regulated authorities, the Act would establish for the first time EPA authority over unregulated radiological emissions. The original provision was included in the House version of the Clean Air Act amendments and during Conference was agreed to by the Senate. During the House deliberations; there were no public hearings on this provision and, in my opinion, at no time were the potential impacts on the Nation's energy program adequately considered or investigated. It is my understanding that, during the conference deliberations, the administration expressed some concern over this provision but their concerns were not incorporated into the final agreement. In expressing their concerns, the administration did not present specific energy impacts or possible interferences with the President's national energy plan. I have significant reservations over the fact that delegating this authority to EPA, which by the provisions of the Clean Air Act provide for additional delegation to States and localities, will adversely affect the necessary development of energy facilities. In addition, I believe that there is a need in this area for national standards and only in extreme circumstances where local conditions require, should higher standards be established. I hope that the administration will take a close look at this provision and report back to the Congress at the earliest possible time the potential adverse effects of this change and recommend as necessary legislative changes to this amendment.
Mr. GRAVEL. Mr. President, this is indeed a momentous day. Only a few hours ago we were passing the Clean Water Act of 1977 unanimously. Now we are considering the Clean Air Act, as reported out of conference earlier this week. May I take this time to compliment Senator MUSKIE, Senator RANDOLPH, and Senator STAFFORD for leading a strong group of conferees through a difficult conference to the culmination in what is by and large a very good bill. The people of America owe a great deal to the dedicated conferees who labored to bring about the legislation we are discussing, and hopefully agreeing to today.
Mr. President, the conference bill is a good one, as I said. It is a fair compromise for the auto industry. Finally, the automotive emission standards are established, and the companies will now move to stepping up their progress toward cleaning up unhealthy auto exhaust wastes. The bill ties together the areas of nonattainment, transportation controls, and indirect source controls, as they should be. The bill minimizes variances that can be given under significant deterioration provisions. The bill will allow areas now encumbered with increasingly frequent foul air to begin to filter out the pollutants, with now more than a hope that our cities and heavily industrialized areas may again become healthy places to work and live. Areas with clean air will be assured that the quality of air will not be severely impacted. All in all, this is a fine start toward correcting many of the existing deficiencies under current law.
I support the bill, and the primary concepts behind the bill. But I do not do so completely without reservation. The grave concern I have is that the class III areas are not sufficiently attuned to the industrial growth that we can expect in the future. Actually, the makeup of the class III area may be such that no growth may be the result. For example, a refinery in our port city of Valdez may not be able to locate because the class III designation may be too stringently drawn. I would have preferred that class III areas be defined in the same terms that the Environmental Protection Agency has defined them in their existing regulations. I pushed for this approach in committee when the Senate considered its bill, because I could foresee the problems that are now possible as a result of the conference bill. I laud the goals of tightening up all classes of land so as to protect their respective air quality. Unfortunately, many of us have to work and are dependent on factories that must be constructed in these class III areas. I hope I am wrong, but I am afraid that we will be back shortly to discuss the need to alter the definition of class III.
Perhaps a real culprit in the problem of locating new facilities is the modeling system. It is not a precise tool, but a form of witchcraft or mental gymnastics which can be off by a factor of from 2 to 20. If the model shows violation of the allowable increments, construction will not be allowed as proposed. That is regardless of the actual pollution that would be emitted from the facility were it constructed. A further problem is that the allowables in the class I areas are probably beyond the realm of sensitivity.
With that reservation I gladly support the conference bill, and hope for its immediate implementation so that we can get on with the work of restoring polluted areas and protecting already clean air areas.
Mr. DOMENICI. Mr. President, after 3 years of debate and endless controversy, it is difficult to imagine that a few hundred extra words on the subject of the Clean Air Act amendments of 1977 would make any difference. Nevertheless, there are several points that I feel are worth making at this late date.
In the hurried preparation of the final bill and the statement of managers, there is agreement that there was an oversight in regard to smelter orders. Under the smelter order provision, it is stated that no smelter may get a smelter order and a delayed compliance order at the same time. The generalization is true as far as both orders relate to the same pollutant.
However, since the smelter order provision is limited to sulfur dioxide emissions, obviously a delayed compliance order may be received on another criteria pollutant, or perhaps even a future criteria pollutant such as arsenic.
I would also like to commend the conferees in adopting a waiver from new source standards for innovative technology. I authored such a provision in the Senate bill to help address the problems New Mexico Public Service was having under the inflexible provisions of the present law. I am pleased that this truly innovative company will be given the latitude that it now needs to press ahead with an advanced round of scrubber technology.
In closing, I would like to commend my colleagues on the conference for their dogged persistence and the pride and sense of craftsmanship they have broughtto the job at hand.
Mr. McCLURE. Mr. President, I would like to make several points with respect to the conference report on the Clean Air Act, and also to ask Senator MUSKIE, the chairman of the conference, for clarification on one troubling matter.
As every legislator knows, meshing two opposing bills in conference can be a confusing matter. Moreover, with a bill as detailed as the Clean Air Act, the confusion is exacerbated by the complexity of the issues. Certainly, one of the most complex areas of the bill is the nondegradation provision. The Senate, however, has discussed the issue at great length, and despite its intricacies, had agreed on a procedure to require new facilities in pristine areas of the country to meet a strict set of requirements to protect the quality of the air in clean air regions. Since the House had a similar provision, the two were meshed during Conference into a coherent, although complex, set of requirements for new facilities in clean air regions.
My concerns are not with the actual conference agreement on nondegradation, but rather the relationship of that agreement with respect to an ambiguous and little understood House provision which dealt with the protection of visibility. In the House's presentation on visibility, and in the final conference agreement, the focus of concern was on the impact of existing sources on visibility in class I areas. Since the visibility section was adopted before the nondegradation section was approved, the issue of the relationship of the visibility section to new sources in pristine areas was not discussed at the time the visibility section was adopted.
Mr. DOMENICI. Would the distinguished Senator from Idaho yield for a comment?
Mr. McCLURE. I would be delighted to yield.
Mr. DOMENICI. As one who was heavily involved in the debate on whether the Senate should adopt the House provision, I can say with authority that the debate on the visibility provision centered over whether such a provision was needed to retrofit existing sources. In fact, at my urging, the scope of the visibility section was limited in conference. The Federal Government could only issue guidelines to the States for existing power plants over 750 megawatts. The identification of those existing sources which impair visibility is a State determination which is followed by a subsequent State determination of what constitutes "best available retrofit technology."
During the course of the visibility discussion, the relationship of the section to new sources was not discussed since nondegradation remained unsettled at the time. When the conferees addressed nondegradation, it was agreed that State revisions of their implementation plans to comply with the requirements of nondegradation would satisfy any statutory requirements for new sources with respect to visibility.
Mr. McCLURE. I appreciate the remarks of my colleague. I believe his citations serve a useful purpose in pinpointing the difference between the two sections. Obviously, nondegradation was concerned with imposing stringent requirements on new sources, while the visibility section was aimed at retrofitting those facilities constructed in the recent past which have already impaired the quality of the air over many of our national parks and wilderness areas.
Mr. MUSKIE. Mr. President, I urge the adoption of the conference report.
SEVERAL SENATORS. Vote! Vote! Vote!
The PRESIDING OFFICER. The question is on agreeing to the conference report.
The conference report was agreed to.
Mr. ROBERT C. BYRD. Mr. President, I move to reconsider the vote by which the conference report was agreed to.
Mr. MUSKIE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
CORRECTION IN ENROLLMENT OF H.R. 6161
Mr. MUSKIE. Mr. President, I ask the Chair to lay before the Senate House Concurrent Resolution 327.
The PRESIDING OFFICER. The Chair lays before the Senate a message from the House of Representatives on House Concurrent Resolution 327, which will be stated.
The legislative clerk read as follows:
A concurrent resolution (H. Con. Res. 327) to correct the enrollment of the bill H.R. 6161.
The PRESIDING OFFICER. Without objection, the concurrent resolution is considered and agreed to.
Mr. MUSKIE. Mr. President, I move to reconsider the vote by which the concurrent resolution was agreed to.
Mr. McCLURE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. MUSKIE. Mr. President, I am happy to say that my labors for the day are concluded, and I wish the Chair a pleasant evening. [Laughter.]
The PRESIDING OFFICER. The Chair thanks the distinguished Senator from Maine.