June 10, 1977
Page 18498
Mr. HATCH. Mr. President, before I offer my unprinted amendment, I would like to ask the distinguished managers of this bill, the Senator from Maine (Mr. MUSKIE) , and the Senator from Colorado (Mr. HART) as well, on the Jackson "technical amendment" that was passed a while ago by voice vote, am I correct in understanding that the effect of that "technical amendment"
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. I yield myself such time as I may require.
The PRESIDING OFFICER. Unless the Senator is offering his amendment, he does not have any time.
Mr. HATCH. Will the Senator from Maine yield some time for me to ask this question? Then I would like to go into my amendment.
Mr. MUSKIE. How much time?
Mr. HATCH. Two minutes.
Mr. MUSKIE. Ten minutes?
Mr. HATCH. Two minutes.
Mr. MUSKIE. I yield the Senator 2 minutes.
The PRESIDING OFFICER. The Senator from Utah is recognized for 2 minutes.
Mr. HATCH On the Jackson technical amendment, am I correct in understanding that the effect of this technical amendment is to exempt some power plants that are going to use the coal from certain coal-stripping operations, notably in Montana, from the significant deterioration provisions of this bill by grandfathering them? Is that correct ?
Mr. MUSKIE. I am afraid I do not know what amendment the Senator is referring to.
Mr. HATCH. The one passed by voice vote that Senator Jackson offered on the floor today, about an hour ago.
Mr. MUSKIE. That is not my understanding of it; no.
Mr. HATCH. That is my understanding. It is what I have been told.
Then let me ask the Senator this question: Is not the purpose of the coal-strip operations to feed the power plants that serve the State of Washington?
Mr. MUSKIE. Will the Senator repeat his question?
Mr. HATCH. Is not the purpose of the Montana coal-strip operations to feed power plants which will serve the State of Washington?
Mr. MUSKIE. I think the Senator ought to direct his question to the distinguished Senator from Washington, whose amendment it was, and who knows more about the background of the situation than I do. I would have to refer the question to him.
Mr. HATCH. Let me ask Mr. HART the question.
Mr. HART. No; I do not have the answer. I think the Senator from Maine is correct, that the question should be addressed to the Senator from Washington.
Mr. HATCH. Would it surprise the Senator if they were?
Let me ask Senator McCLURE. May I have the attention of the Senator from Idaho? May I ask the Senator the question, as one of the leaders on the bill? I would just like to ask, on the Jackson technical amendments, am I correct in understanding that the effect of this, as I said before, technical amendment is to exempt certain plants which use coal from coal-stripping operations, notably in Montana, from the significant deterioration provisions of the bill by grandfathering the plants?
The PRESIDING OFFICER. The Senator's 2 minutes have expired.
Mr. McCLURE. Mr. President, will the Senator from Vermont yield me enough time that I might be able to answer the question?
Mr. STAFFORD. The Senator from Vermont will be glad to yield the Senator time on the bill.
Mr. MUSKIE. Mr. President, may I interject at this point—
The PRESIDING OFFICER. How much time does the Senator yield?
Mr. MUSKIE. I yield myself such time as I may require to interject a remark on the issue as it was presented to me in connection with the technical amendment. Then the Senator can take it as far as he wishes with Senators who know more about the technical background.
But as I understand, as staff has presented it to me, the question that was involved was whether or not the term "commenced construction" as defined in the bill had an effect on certain judicial proceedings that are now underway in a procedure in the State of Washington or Montana. The effect, as explained to me, was to neutralize the bill's effect on that judicial proceeding.
Other than that, I know nothing about the background of Montana coal, how it is being utilized, or what markets it is serving. I take it that is, in part, an issue in the judicial proceeding, and if it is, I assume there is a complicated factual situation to which I have not been exposed. The one issue to which I was exposed was to insure that the words "commenced construction" were neutral to that judicial proceeding. But the Senator from Idaho knows more about it than I do in terms of the circumstances, and maybe he can put that in context.
Mr. McCLURE. I would like to answer the question, and then make a few comments.
Mr. MUSKIE. I yield the Senator from Idaho 2 minutes.
Mr. McCLURE. I thank the Senator from Maine.
If the Senator will recall, at the time the amendment was about to be adopted, I did reserve the right to object long enough to get an explanation. I am not certain I understand all the relevant facts of that amendment, either, but my understanding of the amendment is that it is not simply a question of being neutral in the legal proceedings. It does not override the legal proceeding, but it does amend the bill enough to make certain that in the event the legal proceedings come out in one way, the EPA could not then raise the question of whether or not this statute would then require a permit procedure which was not required at the beginning of their process.
I do not think, in my understanding of it, it would be fair to characterize it as an exemption from significant deterioration. It would have to do with the technical, procedural aspects of the application in that instance. It was intended to further the committee's intention that those that had at least a substantial movement toward completion already underway would not now be caught in a new procedure required under this bill.
Mr. HATCH. Will the Senator yield to me for additional questions? Will the Senator yield such time as I need, not to exceed 3 minutes, to ask additional questions?
Mr. MUSKIE. I am happy to yield time.
Mr. HATCH. I thank the Senator.
The PRESIDING OFFICER. The Senator is recognized for 3 minutes.
Mr. HATCH. What the Senator seems to be saying is that assuming the law is written a certain way, this would grandfather certain plants which would possibly benefit the State of Washington.
Mr. McCLURE. Let me respond to the Senator from Utah in this way: If, as a matter of fact, the lawsuit were to result adversely to the applicant in that instance, the EPA could not then, under this amendment, go back and require a permit which is required under this bill, which was not required under law at the time they commenced their operations and before they got involved in the court litigation.
Mr. HATCH. That is a concession which would directly benefit not only Montana but also Washington?
Mr. McCLURE. It would benefit the operation in Montana that affects four operating utilities in the Northwest, primarily in the States of Oregon and Washington.
Mr. HATCH. It would not only benefit them but alleviate the plants from the requisites required by this act over everybody else?
Mr. McCLURE. This act would require a permit application for those plants not underway at the present time. The question is whether it will have retroactive effect and where that retroactive effect is cut off. As I understand the amendment offered by the Senator from Washington, it is to make certain that the retroactive effects do not apply in that particular case.
Mr. HATCH. In other words, this particular bill we are voting upon today will not apply to that particular situation which benefits Montana and Washington, among others?
Mr. McCLURE. So far as the permit required referred to in the legislation.
Mr. HATCH. And that is the permit to go ahead and develop coal and deliver it to Washington.
Mr. McCLURE. There are other requirements of the act. I did not want the Senator to understand that would exempt them from all provisions of the act. It would only make certain that they were not required to go back and get the permit which is required under the act for all new operations but not for those underway already.
Mr. HATCH. Of course, that is something that may or may not apply to other States which had not had this special technical amendment assistance. Is that correct?
Mr. McCLURE. If there are other operations in other States similarly affected, they would have the same benefit of the amendment. If they are not, they would not have the same benefit.
Mr. MUSKIE. Mr. President, I yield myself another minute.
This amendment does not decide whether or not the project is in motion. This or any other project in any other part of the country. It is not the intent of this bill to try to write law applicable retroactively to projects already underway. That is always the problem when one is in the process of writing new policy, the question of how far back it is made applicable, to what extent are people caught up under a new set of rules when they were already underway under a different set of rules. I suppose we could have made this retroactive to 1970 or 1960, but we did not and I doubt that the Congress would buy it.
We are going to have marginal situations from time to time where judgments will differ as to whether or not the project ought to be deemed as being underway. As to that, I am no expert as to the facts. The Senator from Idaho is an expert, and I think he has pretty well described how the project, which is a Montana project, relates to this bill.
Mr. HATCH. I am delighted to have that information in the RECORD. In the consideration of this technical amendment, what other projects did those who agreed to this amendment consider besides the one in Montana? Were there other projects given consideration?
Mr. MUSKIE. Did we screen the country to find out if there were others in like circumstances?
Mr. HATCH. Yes.
Mr. MUSKIE. No; will the Senator suggest by what means I can scan the country when an amendment is brought to me?
Mr. HATCH. I just wanted to—
Mr. MUSKIE. The Senator asked a question. Let me answer it. The Senator is asking whether or not I scanned the country to see whether or not, in my infinite vision and wisdom, there was some way I could identify other projects in like circumstances to which I could apply the amendment.
No, I had no means of doing so, may I say to the Senator.
I would also say to the Senator if he has a project in his State which he thinks should also be considered as being underway in the same sense, I would be glad to look at it. But to attribute to me the kind of countrywide vision which would enable me to identify other similar problems is not very realistic.
Mr. HATCH. All I want to attribute to the Senate is fairness in this. The Senator is a fair and, I believe, a very eminent and decent man, one of the people I respect a great deal. But all of a sudden we have one project out of all of them over this country which seems to be given special consideration.
The PRESIDING OFFICER. The time of the Senator has once again expired.
Mr. MUSKIE. Mr. President, I yield myself another 2 minutes. I remind the Senator that we can discuss this ad infinitum. We have two other amendments to consider and Senators are pressing me every time I turn around with, "When are we going to get through?"
The Senator casually says that we picked one project out of a great many projects across the country. By what kind of magic does the Senator finally determine that there are a great many other projects in these circumstances to which we should have addressed attention, may I ask?
Mr. HATCH. That is in the last 3 or 4 days. Senator McCLURE backs it up pretty well. Here is one project that has an exception and all kinds of benefits unless others, in the Senator's words, are in exactly the same circumstances.
Mr. MUSKIE. I say to the Senator if there are projects underway in this country—
Mr. HATCH. But I want to—
Mr. MUSKIE. Let me finish.
Under the definitions of this bill, which involve the words "commenced construction," the terms of the bill provide administrative opportunity to exclude them from the application of this bill.
Unfortunately, as the Senator will learn when he has been here long enough, there is no magic way to write legislative language that is so precise that it anticipates every potential inequity or every potential unusual situation. I do not have any way to do it. If I am going to desist from legislating or writing laws until I find such a way, then one great hoped-for objective will be achieved: We will stop writing laws. That may be a good thing.
Mr. HATCH. If the Senator will yield, I want to get to my amendment. I have agreed to cut down my time. I do not mean to hold up this great body.
Did the Senator give consideration to the six or seven projects which have been raised during this week during the consideration of this "technical amendment"? Did the Senator give any consideration to the six or seven projects in the Intermountain West?
Mr. MUSKIE. Which projects?
Mr. HATCH. Intermountain power project, the Pacific Gas & Electric, and others, which are in special circumstances, which need similar special consideration.
Mr. MUSKIE. Has the Senator brought technical amendments?
Mr. HATCH. Yes. We had technical amendments and were shut down.
Mr. MUSKIE. Has the Senator brought them to me?
Mr. HATCH. Yes.
Mr. MUSKIE. When?
Mr. HATCH. On the floor of the Senate.
Mr. MUSKIE. Which one?
Mr. HATCH. The Garn-Hatch amendment of yesterday.
Mr. MUSKIE. The Intermountain power project, is that what the Senator is talking about?
Mr. HATCH. Yes.
Mr. MUSKIE. I commented on that and I put into the RECORD a letter by the Secretary of the Interior which commented on that. Both he and I agree in our judgment. I have not had the chance to examine that project — it has been under consideration by experts for months and years. It is in a remote part of the country. It was conceivable to me that the people who wanted to build it would reconsider their site location decision—
The PRESIDING OFFICER. The Senator's time has expired.
Mr. MUSKIE I yield myself another 2 minutes.
And reconsider the technology they would try to develop and apply to cleaning up emissions. It is conceivable that such a project could be built on another location.
But the Senator, apparently, is so stubborn in his insistence that what he wants should be approved exactly as it is, that he admits of no permissible administrative flexibility and no permissible legislative flexibility.
This morning, in discussing the Scott amendment, I pointed out that under a study made, I think by Russell Train, and in a letter to Senator STAFFORD which I put in the RECORD, that it is conceivable, given the right terrain, the use of the right technology, that even a 5,000 megawatt power plant could be built in the right areas of this country.
That does not mean it can be built in every area.
We did not in this bill create the mountains, we did not create the plains. But the fact is that the mountains impose restrictions from an air quality point of view upon economic activity that the plains do not.
That is a fact of life, whether we pass this bill or any other bill.
Then to ask me in some casual questions intended to suggest that I have somehow deliberately been unfair about one project, that I should have treated another project located somewhere else in another part of the country in exactly the same way—
Mr. HATCH. Will the Senator yield?
Mr. MUSKIE. The Senator raises the point and the challenge and I will finish what I have to say about it.
I reject that. That does not mean my judgment is always infallible. It is not. But I am asked here to consider not only by Senator JACKSON, but by Senator HATCH, three amendments.
Mr. HATCH. That is right.
Mr. MUSKIE. The Senator brings them up to me and in 30 seconds asks me to react to them.
Other Senators do the same and I do my best to make fair judgments.
I described what I did in the Jackson case. There may conceivably be other projects across this country that should be given similar consideration. If there are, I will consider them. But I am not going to try to make the kind of judgments the Senator seems to be asking me to make in the interests of promoting his view of the general policy of the bill. That is an entirely different question.
We have always tried, when we write these environmental bills, to write them in such a way as to not catch people in mid-passage—
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. MUSKIE. Two more minutes.
The PRESIDING OFFICER. The Senator is recognized for 2 additional minutes.
Mr. MUSKIE (continuing). From the beginning of a project until its end.
We try to do that. We do not always succeed. So, occasionally, we get these amendments that are offered for the purpose of insuring that that general policy objective is implemented in particular cases.
The Senator from Tennessee, the minority leader, had such a proposal today. We considered it a long time and we forced him to narrow his amendment until it clearly applied to only the one situation so that it would not be interpreted as being of general application.
I do not know how many amendments today we have been asked to consider.
Mr. HATCH. Will the Senator yield for a compliment?
Mr. MUSKIE. In a minute, then the Senator can belabor me as long as he wishes.
But I have been accepting amendments of that kind since 10:20 this morning and I have done my best to be fair, to be responsive, and to be accommodating within the limits of what I thought was fair and what I thought was right and what I thought was consistent with the bill.
Mr. HATCH. May I say to the Senator that I am not suggesting or imputing to him any impropriety. I would certainly not like to do that, except for one thing, the point I am making.
If it seems to me significant deterioration does not constrain development, then why did we need this significant technical amendment which now opens up development and significant deterioration for special interests out in one area?
That is the only question I have.
I am willing to withdraw any other comments. I will go right to my amendment to try to save time.
Mr. FORD. Mr. President, a point of information.
The PRESIDING OFFICER. The Senator will state it.
Mr. FORD. Mr. President, what is before the Senate?
The PRESIDING OFFICER. A general debate, yielding time on the bill itself.
The Senator from Utah is now prepared to offer his amendment.
Mr. FORD. I thank the Chair.
UP AMENDMENT NO. 398
Mr. HATCH. Mr. President, I call up my unprinted amendment.
The PRESIDING OFFICER. The amendment will be stated.
The second assistant legislative clerk read as follows:
The Senator from Utah (Mr. HATCH) proposes an unprinted amendment numbered 398.
Mr. HATCH. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Page 104, strike out line 14 and all that follows down through line 22 and renumber the following sections accordingly.
Mr. HATCH. Mr. President, the issue of insuring that emission control systems on new cars meet federally mandated standards and that they continue to do so through the useful life of the car is extremely important to the national effort to reduce auto-related pollution.
To achieve this end, the committee bill contains a series of tests and maintenance procedures to be carried out throughout the life of the car. One of those tests, contained in section 34, would require testing of new vehicles at the dealership prior to their initial sale. Any vehicle which failed to meet emission standards could not be offered for sale.
The "pre-sale" testing provision would result in franchised dealers — who have already paid the manufacturer for the vehicle — being precluded from selling cars which they are paying finance costs on. Dealers must finance their inventories in order to pay the manufacturers. For imports, payment is due upon delivery to the dealer; for domestics, payment is due within 15 days.
Section 34 could require a dealer to hold some vehicles in inventory for much longer periods of time in order for any deficiencies or malfunctions in the emission system to be remedied. It is unclear whether the dealer would ever be allowed to perform these corrections since doing so might make him liable to antitampering prosecution. In some cases, the vehicle might have to be returned to the factory, thus causing inconvenience for consumers and creating additional costs to be borne by them.
The fact that section 34 is absolutely unnecessary is clearly seen when one looks at the entirety of the bill. Engines are already being tested at. the production line. The committee bill strengthens the authority of EPA to establish further test procedures for a test to be conducted at the assembly plant. Between the time that this test is conducted and the proposed "pre-sale" test would be conducted, the car would not even have been driven. To mandate a second stage of costly testing — an expense which, I might add, will ultimately be paid for by consumers — is an outrageous example of regulatory overkill.
The forced recertification of new vehicles prior to sale represents a fundamental shifting of responsibility from that which is mandated in the Clean Air Act. The sole responsibility for producing a vehicle which meets Federal standards has always been and must remain with the auto manufacturers. To shift this burden upon small businessmen who are prevented by law from correcting any deficiencies and who have in good faith already purchased the car from the manufacturers defies all sense of equity and fairness.
Mr. President, I strongly urge my colleagues to support this amendment which would strike the pre-sale testing requirement of the bill.
I could say a lot more, but in the interests of time and the needs of my colleagues, I will let it go at that.
Mr. HART addressed the Chair.
The PRESIDING OFFICER (Mr. DECONCINl) The Senator from Colorado.
Mr. HART. Mr. President, I intend to respond to the amendment offered by the distinguished Senator from Utah, but I want him to know, in the interests of expediting the bill, that I intend to offer a substitute amendment, which can only be offered upon the expiration of the time on his amendment. We will then have another half hour to debate that substitute. We may proceed as the Senator wishes.
Mr. HATCH. We can proceed with that right now.
I yield back the remainder of my time, but I should like an equal amount of time.
The PRESIDING OFFICER. Is all time yielded back?
Mr. HART. I yield back my time.
Mr. HATCH. Mr. President, I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
Mr. HART. Mr. President, a parliamentary inquiry. If we have the yeas and nays on an amendment and the substitute is offered and the substitute is adopted, what then will be the parliamentary situation?
The PRESIDING OFFICER. There will be a yea and nay vote on the amendment as amended.
UP AMENDMENT NO. 399
Mr. HART. Mr. President, I send to the desk a substitute amendment.
The PRESIDING OFFICER. The amendment will be stated.
The legislative clerk read as follows:
The Senator from Colorado (Mr. HART), for himself and Mr. MUSKIE, proposes an unprinted amendment numbered 399 to the unprinted amendment of Mr. HATCH numbered 398.
Mr. HART. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
In lieu of the amendment proposed to be stricken by Mr. Hatch, substitute the following:
"Page 104, strike out line 14 and all that follows down through line 22, and insert the following:
Sec. 34. Section 209(a) of the Clean Air Act is amended by adding the following: "Notwithstanding any provisions of this subsection, any State which has adopted a program for light duty motor vehicle emission inspection, testing, and maintenance as part of a State implementation plan approved or promulgated under section 110 of this Act may apply such program as a condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle. Any cost obligation of any dealer incurred as a result of any requirement imposed under the preceding sentence shall be borne by the manufacturer. The transfer of any such cost obligation from a manufacturer to any dealer through franchise or other agreement is prohibited.".
Mr. HATCH. Mr. President, a parliamentary inquiry. Did I obtain the yeas and nays on my amendment?
The PRESIDING OFFICER. Yes.
Mr. HART. Mr. President, I ask for the yeas and nays on the substitute amendment.
The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
Mr. HART. Mr. President, for the benefit of Senators who are in the Chamber, I will explain where we stand.
The Senator from Utah has offered an amendment on an inspection and maintenance provision of the bill. We have yielded time on that amendment; and, for the committee, I have offered a substitute amendment on which we have a half hour, equally divided. I think we probably can reduce that time. We will then have a vote on the substitute amendment and, if necessary, a vote on the amendment itself.
The issue is this—
The PRESIDING OFFICER. Will the Senator withhold fora moment?
The amendment by the Senator from Utah is an amendment to strike. If the amendment of the Senator from Colorado is adopted, it will cause the amendment of the Senator from Utah to fall, and there would be no vote on it.
Mr. HART. That was the nature of my parliamentary inquiry earlier. That is what I thought the situation would be. I appreciate the clarification.
Mr. BAKER. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Who yields time?
Mr. BAKER. I put a parliamentary inquiry to the Chair.
The PRESIDING OFFICER. On whose time?
Mr. HART. I yield 1 minute for the inquiry.
Mr. BAKER. Will the Chair repeat the ruling?
The PRESIDING OFFICER. When a motion to strike is pending and a substitute is offered for the language which is proposed to be stricken, if the substitute is agreed to, the motion to strike fails and is never voted upon.
Mr. BAKER. Mr. President, a further parliamentary inquiry: Does that occur if, in fact, it does not strike all the amendment, and does this substitute, in fact, propose to strike all the amendment?
Mr. HATCH. That was not my understanding.
The PRESIDING OFFICER. This proposal substitutes new language for all the language proposed to be stricken.
Mr. HATCH. What the Chair is saying is that if it is agreed to, there never will be a vote on my amendment.
The PRESIDING OFFICER. The Senator is correct.
Mr. HATCH. That is not what I understood, and Senator HART said that is not what he understood. If that is so, then I ask that we be given back the time, I will finish mine, and we will have a vote on mine, and then the Senator can present his.
Mr. HART. When time is used on the amendment, it will be in order to offer a substitute and I can offer the substitute. We will have time to debate the issue. The question is, if my substitute prevails, is it necessary to have a vote on the amendment? That is the question. We could have back-to-back votes, and it would come out the same way.
Mr. HUMPHREY. Mr. President, I think it is quite obvious that if a substitute is offered, that is the answer. If it is agreed to, no further vote is needed.
Mr. HATCH. All right, let us go ahead that way.
Mr. HART. Mr. President, section 9(a) of the original Clean Air Act contains language which was interpreted by the courts as prohibiting States from requiring any kind of certification inspection or other sort of approval related to emission levels from a new motor vehicle as a precondition to the initial retail sale, titling, or registration of a vehicle.
What the committee attempted to do in section 34 of the bill was to authorize States to enact inspection and maintenance programs which could include inspection of new vehicles as a condition of titling or registering or selling those vehicles in that State. The Senator from Utah said that this requires a pre-sale or sale emission certification. The bill does not do that. The bill authorizes a State to require an inspection and maintenance program — that is a very important distinction.
The problem here is this: The testing of new cars is done at the factory on a random basis — the testing for meeting statutory emission requirements. That is a random sample. It obviously touches only a very small portion of all the cars produced. From the time that automobile leaves the factory, even a tested vehicle that arrives at the dealer's showroom, in transmission, in the conveyance, quite often has the emission control equipment disturbed or in some way damaged.
In addition, the vast majority of the cars produced may arrive, and often do arrive, at the dealer's showroom not in compliance with the Federal law.
There are States, including the State of New Jersey, and communities, such as Portland, Oreg., which have implemented inspection and maintenance programs to reduce emissions. What this provision of the committee bill would do would be to authorize those States to implement those programs at the car sale level.
In the last week or two, the legislature of the State of Colorado has enacted a measure which would implement a strong inspection and maintenance program. But because of the provision in the original act, which we amended this year, they would be prohibited from imposing that on new car sales; so the Colorado legislation applies only to cars 2 years old or older.
What the committee intends to do — and I think it was almost uniformly adopted in the committee — is to authorize any State which wished to do so to establish an inspection and maintenance program which included, as a condition of sale, initial retail sales, titling, or registration of a motor vehicle, an inspection and maintenance system to see whether or not that vehicle conformed with the Federal law.
I think the Senator from Utah has identified what he considers at least to be a potential problem. The substitute amendment addresses itself to that by first reintroducing into the law the committee language permitting States to adopt these programs and then adding the additional sentence, just to make it very clear that automobile dealers are not to be penalized if a car does not conform.
I will read the language which is in the substitute amendment, on which we will be voting first, which clarifies the intent of Congress in the committee amendment:
Any obligation of any dealer incurred as a result of any requirement imposed shall be borne by the manufacturer. The transfer of any such cost obligation from a manufacturer to any dealer through franchise or other agreement is prohibited.
For example, if the State of Colorado adopted an inspection and maintenance program which applied to new car sales, and if the State of Colorado tested a new car for its conformity with Federal standards and found that car to be deficient, the cost of making that car conform to the law would be borne by the manufacturer and not the dealer. That was the clear intent of the committee. The language, which the substitute amendment contains, clarifies that and adds that sentence to the original committee language.
So, Mr. President, this is to authorize States to carry out these programs if they wish. It is our indication that a number of States wish to do so. It is to solve a problem created by the random sampling of new cars at the factory, and the fact that many cars are produced not covered by that random sample which do not conform with the law.
I reserve the remainder of my time.
Mr. HATCH. I think this amendment does not do what needs to be done here. The fact of the matter is we have manufacturers who are responsible for meeting the emission standards on automobiles. I want to put that responsibility where it really should be, and that is with the manufacturers and with the EPA.
The Senator's amendment does not solve that problem. It just creates a lot more, and I realize it is a good faith attempt to try to meet the questions which I have raised here. But I am worried sick about the dealers in this country who are going to have all kinds of difficulties if the old language is passed or if the Senator's amendment language passes.
Let me just say this: Most of them are small, independent dealers who really cannot afford the costs of delay, the costs of inventory, the costs of interest, the costs of floor planning, the costs of negotiating with the manufacturers in those States, if the Hart amendment passes.
In the States which authorize this program of pre-sale testing, the following costs would arise: Various costs would come to the dealers that they do not deserve, and they really should not have to have, and we are going to lose what the real intent of this bill is, which is to ultimately put this burden on the part of the manufacturer and the EPA to see that the emission standards are met.
Now what are some of the costs that the dealers are going to have, even with the Senator's substitute amendment? They are going to have to pay interest to the bank on the floor planning of the cars which they will not be able to sell because the State comes in and says they do not meet the standards.
They are going to lose the cost of the lost sales that occur during the time they have to hold onto the cars or negotiate or fight or sue or whatever else they have to do with the manufacturer to get them to bring the cars back up to standard.
A good percentage of the cars are pre-sold when they arrive at the dealership, so if they cannot be sold, the dealer will lose these sales during that interim time.
He is going to have the cost of the boys who are employed while they are not having any sales, the storage cost of cars while they are brought back into compliance. They are going to have the costs of bringing the cars back into compliance themselves even though allegedly the Senator's substitute would—
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. HATCH. May I finish, then I would be delighted to yield to the Senator.
Mr. MUSKIE. I thought the Senator would like to be accurate.
Mr. HATCH. If the Senator wants to be, I will be happy to yield any time.
Mr. MUSKIE. There is nothing in the committee amendment that puts any burden on the dealer. And the amendment clarifies it, if there is any doubt about it, by putting the burden of the cost directly on the manufacturer.
What the committee bill does, and what this amendment even more sharply does, is to protect the consumer.
Mr. HATCH. Can I have this charged against the Senator's time?
Let me just add this: Frankly, the real question is the question of "costs," and the costs of litigation because this bill does not alleviate that problem. In fact, the matter of costs will have to be defined through litigation, which is very expensive.
The end result is we have the possibility of 28,000 franchisees, for example, suing the manufacturers over what are the costs, which are now covered by the Muskie approach and the approach in this substitute amendment.
Mr. McCLURE. Mr. President, will theSenator yield for a moment?
Mr. HATCH. Yes, I would be glad to yield to the distinguished Senator from Idaho.
Mr. McCLURE. I wish to commend the Senator from Utah for bringing this matter up. The matter was debated at great length in a somewhat slightly different context in the committee hearings this year and last year, and I support the effort, the Senator's effort, to strike this provision from the bill.
The question is what kind of a test will be required to determine whether or not the production line turns out cars that meet the emission tests.
The committee in this bill has strengthened the hand of EPA to require whatever kind of production line test is necessary to make certain that their production line meets reasonable standards of qualification in meeting the emission test, and I do not think we ought to then — let me back up just one moment and say that one of the things we debated was whether they could do it on a sampling technique or whether they had to test every automobile that came off the production line. We specifically rejected that latter condition. We gave EPA the authority to require, if they could work it out, and if it is necessary, but we specifically reserved the opportunity to EPA to use less than an every automobile test on the production line.
It seems to me when we then take that away from Detroit and saddle it on the dealers that we have moved in the wrong direction if that every-car test is necessary and desirable, and it ought to be at the production line in Detroit and not out on all the little dealerships across the land. If it is desirable, we ought to amend it. We ought to require an every-automobile test on the production line, a matter which the committee specifically rejected.
Mr. HART. Mr. President, will the Senator yield?
Mr. HATCH. I just want to add to what Senator McCLURE says, if I may, and that is, that the real burden should be on the manufacturer and on EPA.
The Senator's substitute to my amendment does not alleviate that problem. What it does is muddy the waters. It puts the dealers in all kinds of problems and expenses.
Mr. HART. Mr. President, will the Senator yield?
Mr. HATCH. If I could just finish this thought — all kinds of expenses and all kinds of difficulties, and it really does not do what the Senator's amendment wants to do, and that is, to place the costs in reality where it should be. That is why the Senator's substitute really is not, frankly, any better than the original section 34, which should be stricken.
So I have to respectfully request that my colleagues here vote against the Senator's substitute and for my amendment.
Now, without yielding any more of my time I would be happy to yield.
Mr. GOLDWATER. Mr. President, will the Senator yield for a question?
Mr. HATCH. I would be happy to yield for a question.
Mr. GOLDWATER. I would like to ask the Senator from Colorado to answer this question, and maybe it will help. In my State of Arizona we have mandatory emission testing. Let us say I go downtown and buy a car. Before I can get my license it has to be, the emission has to be, tested at a certain spot. If the emission does not meet the standards I cannot get a license. Who is stuck?
Mr. HART. Well, first, let me clarify the Senator's question. Is he saying that is the law in Arizona now or is he hypothesizing?
Mr. GOLDWATER. No, no, that is the law. In fact, I have a new car and I cannot get it out there to get the emission tested, so I cannot get a license.
Mr. MUSKIE. Mr. President, will the Senator answer a question? Is the Senator asking the question where there is testing before he gets the car?
Mr. GOLDWATER. No, after I buy the car.
Mr. MUSKIE. That is a different proposition than in this bill. That is the sort of ambiguity this bill is intended to eliminate. In other words, this bill is intended to require the testing before the car is sold, so the consumer is not stuck or left in doubt as to who is stuck.
Mr. GOLDWATER. That would require a change in my State laws.
Mr. MUSKIE. I do not know that it could change the State's laws. The provision is permissive, may I say to the Senator. The State does not have to do it.
Mr. GOLDWATER. We tried to get rid of it.
Mr. MUSKIE. I would agree with the Senator, I think this pre-sale testing, which then gives the dealer a chance to put the burden back on the manufacturer, is the better way to deal with it.
Mr. HART. May I also say to the Senator from Arizona we have been contacted by States, including the State of Colorado, which have interpreted judicial rulings on the legislation enacted in 1970 as prohibiting those States from doing what the Senator says is the law in Arizona now, that is to say, from enacting those kinds of programs. So we have been approached by States that want the authority which this amendment would give them.
This does not require one State to enact this law. It does not require one car to be inspected before it is sold. It does authorize any State to adopt that kind of program.
Mr. GOLDWATER. My question is directed to who gets stuck, the dealer or me?
Mr. HART. Let me explain that, in response to the statements made by the Senator from Idaho because that is in the history of the clean air legislation, the Senator from Idaho says, and I think the sponsor of the original amendment agrees, that if we are going to solve the problem of turning out clean cars it ought to be done at the assembly line. On the other hand, the Senator from Idaho says he would not support that. So we are in a Hobson's choice. We believe in States' rights. Let us authorize the States to do it if they want to. They do not have to. But States want to. They want the authority to do that.
Let me respond to other statements made by the Senator from Utah.
Mr. HATCH. That is on the Senator's time. I understand I can get time against the bill. All right.
Mr. HART. I understand.
The Senator from Utah said certain costs will be covered. I will read the additional line in the substitution.
Any cost obligation of any dealer incurred as a result of any requirement imposed shall be borne by the manufacturer.
Mr. HATCH. Mr. President, will the Senator yield for a question?
Mr. HART. The transfer of any such cost obligation, and so forth, is prohibited. I do not know how we can make it clearer.
Mr. HATCH. Will the Senator yield?
Mr. HART. I yield for a question.
Mr. HATCH. Yes, it would include, would it not, all of these items of cost which could amount to thousands of dollars to dealers that would have to be adjudicated in the courts over long periods of time and sometimes as long as 5 years and maybe even longer. It could ruin and bankrupt dealers all over the country.
Mr. HART. What is to be adjudicated? The language could not be clearer.
Mr. HATCH. It is difficult to define "costs" in your substitution, nor would the word ever be defined except by the courts. The fact of the matter is, and my question goes to this — that is the big question — the thing that brings about litigation is the question about what costs are reimbursable. Are all these costs that I raise reimbursable? There is no definition of cost in the Hart amendment and one cannot take the time to do it.
Mr. HART. When one goes to law school, the first thing they tell you when you walk in the door is you cannot prevent anyone from suing someone else. That is the first thing one learns.
Mr. HATCH. The first thing trial lawyers know is it takes an awful lot of time to try cases. The word "cost" is an indefinable term here in your amendment, to be defined by a jury and judges, which amounts to an immense amount of money.
Mr. HART. I did not yield the floor.
The second thing to learn is that the way to settle harassing lawsuits is to make the law clear. The law cannot be made more clear than it is in this substitute. And if thousands of automobile dealers want to sue the manufacturers or vice versa, which I suspect would be the case if there were any lawsuits at all, and I doubt that, they would be wasting their time. The law is extremely clear.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. HART. I yield to the Senator from Maine.
Mr. MUSKIE. The whole question is where you put the burden of costs. I do not know whether in a particular car they are going to involve tens of dollars or hundreds of dollars or thousands of dollars or tens of thousands of dollars. I do not know what kind of cars the Senator from Utah buys.
But in any case, what we are trying to do in the committee is to avoid imposing the burden of the costs, and the inconveniences associated with driving a car that the manufacturer failed to put in shape in accordance with the requirements of the Clean Air Act, on the manufacturer. That is the whole purpose.
When you permit these cars, many of which do not meet the clean air standards when they arrive at the dealer's showroom, to be sold, which the laws of probability say may not meet the clean air standards, then those cars are in the hands of the consumers who have the burden, the responsibility, and the costs.
The PRESIDING OFFICER. The time of the Senator has expired.