Joe Barton

Mr. BARTON of Texas

Mr. BARTON of Texas. I yield to the gentleman from Michigan.

Mr. BARTON of Texas. Reserving the right to object, Mr. Speaker, could I inquire of the distinguished ranking member of the Committee on Commerce if that means that the debate on the Conyers amendment would not be tonight, but would be tomorrow? Is that the intent of the gentleman's unanimous-consent request?

Mr. BARTON of Texas. I yield to the gentleman from Michigan.

Mr. BARTON of Texas. Further reserving the right to object, I yield to the gentleman from Michigan.

Mr. BARTON of Texas. Mr. Speaker, I am not sure of the parliamentary procedure, but, if I have the right, I would ask that the Dingell unanimous-consent request be amended so that the Stupak amendment will also be rolled until tomorrow.

Mr. BARTON of Texas. Mr. Speaker, I withdraw my reservation of objection.

Mr. BARTON of Texas. If we could get agreement that the Stupak amendment, which is only 10 minutes of debate, could be tomorrow, then I will withdraw my reservation of objection.

Mr. BARTON of Texas

Mr. BARTON of Texas. Mr. Speaker, I want to rise in support of the rule. I think this is a good rule. Mr. Speaker, I want to point out to my colleagues that if this were a software package that would be version 5 or 6. We have been working on this issue for the last 5 years in the Congress. We had a bill pass the House; we never went to conference with the Senate last year. There is one amendment that has been made in order, a bipartisan amendment, the Stupak-Barton amendment, that deals directly with local access, local control of rights-of-way for the cities that is very bipartisan in nature, and I would urge support of that amendment if we can reach agreement on it, which we are still working on that. So this is a good rule, I want to thank the Committee on Rules for making Stupak-Barton in order, and I would urge Members to vote for the rule.

Mr. BARTON of Texas

Mr. BARTON of Texas. Mr. Chairman and members, I rise in support of the bill. I think this is a very far-reaching telecommunications bill, the most far-reaching in the last 50 years. It will provide more competition for more industries for more consumers around this country. It will allow local telephone companies to get in long distance service. It will allow long distance telephone companies to get into local service. It will allow cable television providers to get into long distance and local service and vice versa. We will not have telephone companies, cable companies. We will have communications providers. The consumers will be the ultimate driver. They will have more choice. I think it is a good bill. I think we should move it out of this body this week, move it to conference with the Senate so that we can have a modified version early this fall to pass and put on the President's desk. Mr. Chairman, I want to speak specifically on the Stupak-Barton amendment that deals with local access for cities and counties to guarantee that they control the access in their streets and in their communities. The bill, as written, did not provide that guarantee. The Chairman's amendment does provide, I think, probably 75 percent, maybe 80 percent of that guarantee. We are in negotiations this evening and will continue in the morning with the gentleman from Michigan [Mr. Stupak] and the gentleman from Colorado [Mr. Schaefer] and myself, so that we should have an agreement that solves the issue to all parties' satisfaction, but we simply must give the cities and the counties the right to control the access, to control right-of-way, to receive fair compensation for that right-of- way, while not allowing them to prohibit the telecommunications revolution on their doorstep. Mr. Chairman, the Stupak-Barton amendment will do that, and I am confident that we can reach an agreement with the gentleman from Virginia [Mr. Bliley], the gentleman from Texas [Mr. Fields], and the gentleman from Colorado [Mr. Schaefer] tomorrow so that we can present a unanimous-consent agreement to the Members of the body later tomorrow afternoon. I would support the amendment and support the bill and ask that the Members do likewise.

Mr. BARTON of Texas

Mr. BARTON of Texas. I yield to the gentleman from Texas.

Mr. BARTON of Texas. Mr. Chairman, the gentleman is correct.

Mr. BARTON of Texas. That is exactly right.

Mr. BARTON of Texas. Mr. Chairman, that is because they are operating under interim regulations. As soon as the EPA certifies the permanent regulations, they will get those permits. That is my information.

Mr. BARTON of Texas. My sources are from the EPA, and I just read them, and I can quote you page numbers, dates, chapter, and verse.

Mr. BARTON of Texas. Mr. Chairman, I know there is confusion, and the body hates to see Texans confused among each other. We are all from Texas, and I know it is discombobulating, but I want to try to clarify this one more time: The standard that cement kilns are currently regulated under is an interim standard under RCRA, promulgated by EPA, and it is a tough standard. The distinguished gentleman from Lufkin did not like me using the EPA [[Page H 7960]] as a source. Well, I am chastised by that. I am now going to use the Congressional Research Service, which should have more repute in this body. This is CRS environmental policy analyst, Linda Schreio, S-C-H-R-E-I- O. She has found that the BIF rule under RCRA includes identical standards to the incinerator rule in terms of the efficiency required for pollution removal. She says, The BIF rule is more protective than the incinerator rule in 3 key areas: Total hydrocarbon emissions, specific emission standards for 12 metals of concern, and additional dioxin requirements including the requirement to conduct site-specific risk assessments for dioxin. She further states, The commercial incinerator rules contain no similar standards, even for dioxin. And then she says, The interim status under the BIF rule is a tough standard. Now, I hope that puts to rest that cement kilns are not regulated. And if they are, they are regulated less stringently. I am quoting in this case the Congressional Research Service.

Mr. BARTON of Texas. Mr. Chairman, I would like to ask the gentleman from Illinois a question about his amendment, and I would like the gentleman's attention, the gentleman from Illinois. In the amendment, as I read it, it says that any limitation set forth under this heading on the use of funds shall not apply when it is made known to the Federal official having authority to obligate or expend such funds that the limitation would restrict the ability of the EPA to protect humans against exposure to arsenic, benzene, dioxin, lead, or any known carcinogen. My question is: When it is made known, who makes it known? How do they make it known? At what level do they have to make it known? If my 13-year-old daughter, Kristin, sends a letter to the administrator of the EPA, does that give them authority to violate existing Federal law? This sets no standards. If I read this correctly, if we pass this amendment, the EPA, if anybody on the street says they have got a concern, they can violate the existing standards in existence and go out and regulate to the nth degree. Would the gentleman from Illinois answer that question?

Mr. BARTON of Texas. Because there is no need for it. There is absolutely no need for it. It is very counterproductive. I see my good friend, the gentleman from Texas [Mr. Wilson], smiling like the cat that ate the canary, so I am sure he is going to take issue with that.

Mr. BARTON of Texas. Under current regulations they are all being regulated today.

Mr. BARTON of Texas. Mr. Chairman, I am the chairman of the Subcommittee on Oversight and Investigations of the Committee on Commerce. I have held 8 hearings in my subcommittee this year alone on the Clean Air Act amendments of 1991. That is an average of over one hearing a month on that one act which has six titles. There is one title in that act that has, in one section, over 27 subsections that we are holding hearings on. All of the amendments that are in the appropriation language that the gentleman from Ohio, [Mr. Stokes] and the gentleman from New York [Mr. Boehlert] are attempting to strike have been reviewed at staff level by the Committee on Commerce staff and we do support that these amendments be in this bill. We know that the authorizing committee needs to act, and we fully intend to act, but we simply yet have not had time to go through the complete record on just for example the Clean Air Act alone. Mr. Chairman, my colleagues might be interested to know that one of the things that the language in the bill of the gentleman from California [Mr. Lewis] is attempting to delay implementation of is a maximum achievable control technology standard for refineries that the EPA is under court order to have ready to release today, July 28, 1995. Mr. Chairman, they have to release it today, because they got a 60- day extension back in May. They are not going to be ready. They have said they are not going to be ready. My colleagues may be interested to know that there is an arsenic and a radon standard that EPA is supposed to implement this year that they are not going to be able to implement. This language simply gives us time to review the act to make these changes possible. Vote ``no'' on this amendment. Mr. Chairman, I rise in opposition to the amendment. The Oversight and Investigations Subcommittee of the House Commerce Committee, which I chair, has held a series of hearings on EPA's implementation of the Clean Air Act amendments. In our examination of the act, we have covered many of the issues that are the subject of discussion today. For instance, on March 16 of this year, a hearing was held on employee commute options. On March 23 and 24, hearings were held on inspection and maintenance programs. A hearing was held on the operating permits program on May 18. And hearings on the hazardous air pollution program were held on June 29 and July 21. In every one of these cases, witnesses testied that either changes were needed to the Clean Air Act itself, or changes were needed in the implementation of the act by EPA. For instance, in the area of inspection and maintenance, the subcommittee heard scientific evidence questioning the validity of the so-called 50-percent discount for decentralized programs. In addition, State representatives from Texas, Georgia, Pennsylvania, and Virginia criticized EPA's heavy handed approach in pushing centralized testing. A State representative from Georgia testified that for States, it is EPA's way, or the highway, that is, no highway transportation funds if States do not adopt centralized testing. Likewise, a hearing on hazardous air pollutants, indicated overstepping by EPA in the development of the hazardous waste combustion MACT. In that hearing, EPA testified before the subcommittee that maximum achievable control technologies are to be established based on control technologies from existing sources. Yet testimony established that EPA is not developing MACT standards for hazardous waste combustion from existing sources. At other hearings, testimony was heard concerning how inflexible the act and EPA has been in regards to the operating permit program, employee commute options, refinery MACT and other issues. Therefore, I believe a solid record has been established that these changes need to made. Unfortunately, because of deadlines imposed both by the Clean Air Act and by EPA, some of which are even now beginning to fall, we do not have the luxury of year-long deliberations over legislation. Let me add that I intend to address these issues and others that are just as important but not as time sensitive in legislation this fall. However, because the MACT for refineries has a court ordered deadline of July 28, action later this year may not be timely. Similarly, the MACT for hazardous waste combustion is scheduled to be proposed in September of this year. Companies may begin to comply with these standards before changes can be made. As for inspection and maintenance, even today, many States are potentially subject to sanctions. In the next several months, many will be forced to make decisions on the types of inspection and maintenance programs they intend to implement. The proposed provision in the bill will help clear up confusion States have over what type of inspection and maintenance program they can propose, and allow States to begin to move forward. For these reasons, I urge my colleagues to oppose the amendment. I also provide the following additional comments. Explanation of Riders and Legislative Language Affecting Commerce Committee Jurisdiction in VA, HUD, Independent Agencies Appropriations Bill i. radon and arsenic in drinking water The appropriations language provides that none of the funds appropriated under this heading may be used by the Administrator or the Administrator's designee for signing and publishing a national primary drinking water regulation for radon and other radionuclei: Provided further, That none of the funds appropriated under this heading may be used by the Administrator or the Administrator's designee for signing and publishing any proposed national primary drinking water regulation for arsenic. Background Under the Safe Drinking Water Act Amendments of 1986, EPA was required to regulate 83 specific contaminants in drinking water, including radon and arsenic, by June 1989. EPA has issued regulations for nearly all of the specified contaminants, but not for radon or arsenic. As described below, these contaminants have presented particular problems for the regulators. Radon.--While radon can enter a home through drinking water, most radon in homes comes from the soil beneath the foundation of the dwelling. Nonetheless, the Safe Drinking Water Act requires EPA to regulate radon in drinking water. The costs of controlling radon in drinking water are high; each source of groundwater must be equipped with an aeration device that separates the radon from the drinking water. The benefits, however, are usually considerably lower than the costs because most radon in homes comes from sources other than drinking water. Congress has adopted appropriations language prohibiting EPA from issuing a radon regulation for the past three years. It is appropriate to continue this prohibition for another year while the Commerce Committee takes a careful look at this issue in the context of reauthorization of the Safe Drinking Water Act. Arsenic.--EPA's existing standard for arsenic in drinking water is 50 parts per billion. However, EPA is required by the Safe Drinking Water Act Amendments of 1986 to revise this standard. In fact, EPA is under a [[Page H 7951]] November 1995 court-ordered deadline to issue such a proposed standard. There are, however, a number of uncertainties in our understanding of the health effects of arsenic. EPA has concluded that there is a need for additional time to gather additional information on the potential health benefits of regulating arsenic and on potential treatment technologies before proceeding further with these regulations. Indeed, in the bill to reauthorize the Safe Drinking Water Act which passed the House last year, both Republicans and Democrats agreed to extend the statutory deadline for revisions to EPA's arsenic standard to give EPA more time to understand the health effects of arsenic. Therefore, it is appropriate to use the VA, HUD appropriations bill to prohibit EPA from revising its arsenic standard until the Commerce Committee has had an opportunity to review this issue in the context of reauthorization of the Safe Drinking Water Act. ii. employee trip reduction The appropriations bill provides that: none of the funds appropriated under this heading may be used by the Environmental Protection Agency to impose or enforce any requirement that a State implement trip reduction measures to reduce vehicular emissions. Section 304 of the Clean Air Act, as amended, shall not apply with respect to any such requirement. background The Employee Trip Reduction Program (ETRP or ECO (``employee commute option'')) is required by the 1990 Clean Air Act Amendments. The law applies to the nine smoggiest cities in the United States and requires employers with more than 100 employees in those areas to develop plans that will reduce employee's average vehicle occupancy (AVO) during commuting time by 25 percent. On March 18, 1995, the Oversight and Investigations Subcommittee held a hearing on ECO. The Subcommittee received testimony from employers and States which are subject to the requirement. Most of the testimony was critical of the requirement; several witnesses testified that the costs of developing and maintaining such programs far exceeded the benefits, i.e., reduced air pollution. EPA defended the program as necessary to reduce total ``vehicle miles traveled'' (and hence, air pollution) but said that it would require States and employers to make only a ``good faith effort'' for compliance. EPA's commitment to use prosecutorial discretion, however, would not protect a State or employer from a citizens' suit under Section 304 of the Clean Air Act. Chairman Barton asked EPA to consider whether legislative changes to the ECO program are required. As a direct result of the March 18, 1995, hearing, EPA convened a ``working Group'' to assess ECO. This group met twice and then issued a report to the Clean Air Act Advisory Committee (CAAAC). The report was largely accepted by the CAAAC and then referred to EPA for action. The report called for several efforts to increase the ``flexibility'' of the ECO program but did not address whether the ECO program requires legislative changes. On July 11, 1995, EPA wrote to Chairman Barton to announce its implementation of the CAAAC recommendations. EPA agreed to allow ``regionalization'' of the program at the behest of a State, to only require good faith efforts for compliance, to allow more flexible credits and too allow seasonal rather than full year ECO plans. Additionally, EPA accepted an ``emission equivalency'' proposal (albeit with some important distinctions discussed below). Appropriations bill language.--The FY96 VA, HUD appropriations bill contains language that prohibits EPA from spending any money to ``impose or enforce any requirement'' that a State implement ECO. The appropriations bill also provides that Section 304--which authorizes citizens' suits-- shall not apply to the ECO program. Thus, the language seeks to bar EPA from enforcing trip reduction requirements against a state (through an applicable State Implementation Plan or through the sanctions afforded under the CAA) and against an employer (for violation of an employer's duties to implement the program under the CAA). Additionally, the language seeks to insulate States or employers form being sued for non- compliance with ECO requirements under the citizen suit provisions of the CAA. The citizen suit provisions allow ``any person'' to bring a civil action against ``any person'' in violation of an emission standard or limitation under the Act. Explanation of the appropriations bill language.--This language is based on several considerations: (1) EPA's efforts to ``reform'' the program administratively have come up short. Despite EPA's proposed reforms, affected States and employers will still be required to develop the required plans, or risk lawsuits by citizens groups. (2) It appears unlikely that EPA will use its administrative authority to make the program workable. Indeed, EPA remains committed to the statutory language of ECO. In a June 29, 1995, memorandum, EPA stated ``we want to emphasize our continued support for the numerous trip reduction strategies that are currently available within the program. We believe it is important to preserve the overall trip reduction focus of ECO programs.'' (3) EPA has shown no interest at all in statutory reforms of the ECO program. During its ``Working Group'' effort to define alternatives to ECO, the Agency tried to rule out any statutory approaches. Although several members of the Working Group supported such changes, these recommendations were not accepted by the Clean Air Act Advisory Committee. Additionally, EPA Assistant Administrator for Air and Radiation, Mary Nichols, has been quoted recently as opposing any attempts to reopen the Clean Air Act, including even minor revisions. Thus, even though EPA does not have sufficient legal authority to fix the program administratively, it continues to oppose efforts by Congress to give it that authority. (4) Time is of the essence. States were required to file ECO revisions to their State Implementation Plans (SIPs) in 1992. Some States now have approved ECO SIPs;, some are pending EPA approval. In either event, the program continues to be mandatory and States and employers are subject to citizens suits. The appropriations rider--a 12-month fix-- will give the Commerce Committee time to consider whether legislative changes to the program are needed, and if so, how best to obtain those changes. iii. enhanced inspection and maintenance The appropriations bill provides that: ``none of the funds appropriated under this heading may be used to assign less than full credit for automobile emissions inspection programs required under 182 (c), (d), or (e) of the Clean Air Act, as amended, on the basis of network design equipment unless the Administrator determines, based on data collected from at least two full cycles of the program, that less than full credit is appropriate''. The Clean Air Act Amendments of 1990 require ozone nonattainment areas designated as ``serious,'' ``severe,'' and ``extreme'' to implement a program of ``enhanced'' inspection and maintenance (I&M). A number of such nonattainment areas have attempted to comply with the law by ``enhancing'' their existing decentralized ``test and repair'' programs. A ``test and repair'' program is one in which a car can be tested and repaired at the same location, typically at a service station. However, EPA has concluded that such ``test and repair'' programs are not as effective as ``centralized'' programs, i.e., programs in which cars are tested at one facility and repaired at another facility. In its regulations implementing the enhanced I&M program, EPA has said that it will give ``test and repair'' programs only 50 percent of the credit that ``centralized'' programs receive. Appropriations language.--The FY96 VA, HUD appropriations bill contains language that prohibits EPA from using funds to assign less than full credit for automobile emissions inspection programs unless EPA determines, based on data collected from at least two full cycles of the program, that less than full credit is appropriate. Explanation of the appropriations language.--In testimony before the Commerce Committee, GAO has questioned the quantitive basis for EPA's assumption that ``test and repair'' I&M programs should receive only 50 percent of the credit awarded to centralized programs. The appropriations language would prohibit EPA from assigning less than full credit unless less than full credit is justified by actual data from the operation of a ``test and repair'' system. IV. refinery mact The appropriations bill provides that ``none of the funds appropriated under this heading may be used to develop, propose, promulgate, issue, enforce, or to set or enforce compliance deadlines or issuance schedules for maximum achievable control technology standards pursuant to section 112(d) of the Clean Air Act, as amended, for the category proposed to be regulated at Vol. 59, Federal Register, No. 135, page 36130, dated July 15, 1994, and for purposes of this provision, section 304 of the Clean Air Act shall not apply''. The Clean Air Act requires EPA to identify and enforce ``maximum achievable control technology'' (MACT) standards for a number of industries, including refineries. MACT standards are designed to limit the emission of Hazardous Air Pollutants (HAPs). For existing sources, the standards are to be no less stringent than ``the average emission limitation achieved by the best performing 12 percent of existing sources.'' For new sources, the MACT standards are based on ``best controlled similar source.'' EPA is under a court-ordered deadline to issue MACT for refineries by July 28, 1995. EPA is preparing to adopt a definition of MACT for refineries which would, according to the National Petroleum Refiners Association (NPRA), result in the shutdown of seven small refineries. This language would prevent EPA from finalizing a MACT standard for refineries for one year, thereby giving the Commerce Committee time to assess whether EPA is exercising its authority properly and whether there are statutory problems with Title III of the 1990 Clean Air Act Amendments which need to be corrected. At a June 29, 1995 hearing of the Oversight and Investigations Subcommittee, the NPRA argued that the Refinery MACT standard was flawed because: EPA relied on data from the early 1980's, instead of available 1993 data on industry equipment leaks. This data was used to estimate the benefits that would be expected from the regulation. In designing its regulation, EPA used a ``worst case scenario'' which assumed that some population lives within 150 feet from the center of every refinery in the country. [[Page H 7952]] This assumption served to skew risk assessments. Even with flawed data and risk assessments, NPRA argued that EPA's own analysis of the rule demonstrated that up to 7 refineries would close due to the regulation and that the regulation would cost $800 million over five years while reducing baseline cancer incidence by 0.33 persons per year. NPRA argued that such a risk approached zero and was not cost effective as compared to other risks facing society ($31,000/ yr cost effectiveness for death averted for improved traffic signs, $101,000/yr. For upgraded guard rails versus $333,300,000/yr for the Refinery MACT rule). v. risk management plans for the oil and gas industry The appropriations bill provides that: none of the funds appropriated under this heading shall be obligated or expended to take any action to extend the risk management plan requirements under section 112(r) of the Clean Air Act, as amended, to the domestic oil and gas exploration and production and natural gas processing industry. Section 112(r) of the Clean Air Act requires certain sources of toxic air emissions to prepare a risk management plan to prevent accidental releases of such emissions. This section of the Clean Air Act was added by the 1990 Clean Air Act Amendments and was intended to address ``Bhopal-type'' releases where human health and the environment are threatened. EPA issued a list of substances subject to 112(r) regulations in January, 1994. On March 13, 1995, EPA issued a supplemental notice to the regulation which discussed several different approaches, including a ``tiered'' regulation of sources which essentially varies the level of effort depending on the level of risk. At present, these regulations have not been issued in final form. EPA is interpreting certain provisions to require risk management plans for separate oil and gas wells, instead of for groups of oil and gas wells. Oil and gas producers contend that this could result in costly equipment being mandated for remote exploration and production facilities. Oil and gas producers estimate that 112(r) requirements could cost the oil and gas exploration industry $7 to $12 billion in the first year. Effect of Appropriations Language The language is intended to prevent any application of risk management plan requirements to the oil and gas exploration, processing and natural gas production industry. The key element of this amendment is the definition of ``oil and gas exploration and production and natural gas processing industry.'' This language was altered between the subcommittee and full Appropriations Committee consideration. At the subcommittee level, the language read, ``oil and gas exploration, processing and production industry.'' Mr. Lewis offered an amendment at the full Appropriations Committee to alter the language to its current form. ``Oil and gas exploration and production'' involves such things as rigs and test equipment, usually found in remote locations. The definition also appears to cover the ``Christmas tree'' constructed to remove oil and gas for production. While there is some uncertainty, field plants for production may additionally fall under the definition; while major production plants may not. With the specification of ``gas processing industry,'' however, some have argued that refineries now may be included within the prohibition on funds. That is, some may argue that the appropriations language prevents requiring 112(r) plans not only for remotely located exploration and production activities, but larger plants which can be located in industrial and more populated areas. According to the Appropriations Committee report, this language is necessary ``so that Congress will have the opportunity to determine if the Agency has overstepped their regulatory bounds with respect to this action.'' vi. hazardous waste combustion mact The appropriations language provides that: ``none of the funds appropriated under this heading may be used to issue or enforce any requirement not otherwise authorized under existing law or regulation with respect to combustion of hazardous waste prior to promulgation of final regulations pursuant to a rulemaking proceeding under the Administrative Procedure Act or to impose or enforce any requirement or condition of a permit, including the use of an indirect risk assessment, or to deny a permit pursuant to section 3005(c)(3) of the Resource Conservation and Recovery Act, as amended, unless the Environmental Protection Agency follows the procedures governing the use of authority under such section which it has set forth at 56 Fed. Reg. 7154, note 8, February 21, 1991: Provide further, That none of the funds appropriated under this heading may be used to issue or enforce any regulatory standard for maximum achievable control technology (MACT) for hazardous waste combustion under any statute other than the Clean Air Act, as amended, issue any such standard without first determining that in calculating the MACT floor emission levels for existing sources under section 112(d)(3) of the Clean Air Act, as amended, one-half of the currently operating facilities in the group of sources that make up the floor pool for that category or subcategory actually achieve the MACT floor levels for all of the hazardous air pollutants to be regulated''. After the Love Canal crisis, Congress made the determination to discourage the further land disposal of certain kinds of hazardous waste. EPA made the determination that combustion of hazardous waste was the best alternative for the disposal of most organic hazardous waste. Hazardous waste combustion occurs by two basic methods: (1) as input to hazardous waste incinerators; and (2) as fuel substitutes for boilers and industrial furnaces, including cement kilns. Hazardous waste combustion units are already stringently regulated by two different but similar sets of regulations under RCRA. (Subpart O regulates incinerators: boilers and industrial furnaces (BIFs) are regulated under the BIF rule. Both sets of rules impose stringent emission limitations and other requirements ``as necessary to protect human health and the environment.'' In addition, hazardous waste combustion units are subject to regulation under Section 112 of the Clean Air Act dealing with Hazardous Air Pollutants. That section requires EPA to propose a Maximum Achievable Control Technology (MACT) for major sources of certain hazardous air pollutants. EPA is required to make its RCRA and Air Act limits for these units consistent to the extent practicable. This has been generally referred to as the ``combustion strategy''. Problem Congress was very specific about how EPA was to determine the floor for MACT standards. EPA was to set the floor at the average of the top twelve percent of existing source facilities. EPA appears to be setting a standard that is not based on existing sources, even though in recent testimony before the Oversight and Investigations Subcommittee, Ms. Nichols stated that such standards were to be based on existing facilities. EPA also appears to be setting a MACT standard for hazardous waste combustion that improperly commingles authority between Clean Air Act and RCRA authority. In addition, EPA has been conditioning RCRA permits on requirements that have not been subject to the full notice and rulemaking under the terms of the Administrative Procedure Act. Thus, EPA has used its permitting authority to achieve what it refuses to subject to actual regulatory development. Appropriations language Arguably, the language requires that EPA do only what it is already required to do. The language prohibits EPA from: (1) the use of permit conditions without site specific findings; (2) the setting of MACT standards under any authority other than the Clean Air Act; (3) the setting of a MACT standard without making the required finding that certain facilities are achieving the standard. vii. operating permits The appropriations bill provides that ``none of the funds appropriated under this heading may be used to promulgate, implement, or enforce sections 502(d)(2), 502(d)(3), or 502(i)(4) of the Clean Air Act, as amended, against a State which is involved in litigation regarding provisions of Title V of the Clean Air Act, as amended.'' This language would prohibit EPA from promulgating, implementing or enforcing the operating permits requirements against any State which is involved in litigation regarding provisions of operating permits title. This prohibition in intended to apply in Virginia--and in any other State--where deadlines have not been met for submittal of an operating permits program, approval of a state operating permits program by EPA, or imposition of a federal operating permits program (upon failure of a state to submit or gain approval of its own program). The Commonwealth of Virginia submitted its operating permits program to EPA for approval on November 19, 1993. EPA disapproved the Commonwealth's proposed program on December 5, 1994 because of one alleged deficiency: EPA said the Commonwealth's ``citizen suit'' provision was not broad enough. Virginia has sued EPA over this assertion. Because Virginia does not have an approved operating permits program, the Commonwealth will become subject to sanctions (withholding of highway funds and offsets) on November 15, 1995. In addition, EPA would be required to implement an operating permits program for Virginia by November 15, 1995. This means that after November 15, 1995, Virginia businesses could be required to apply for permits from EPA's Regional Office in Philadelphia. The appropriations language prohibits EPA from imposing sanctions on Virginia and from promulgating, implementing or enforcing a federal operating permits program in Virginia and in any other State which is currently involved in litigation with EPA on operating permits issues. Currently, 14 States (and 30 localities) have operating permit programs which have been approved by EPA. Thus, a number of States are still subject to uncertainties concerning what should be in their operating permits program. In addition, EPA is presently proposing significant changes to the Title V program. Although the Agency issued a final rule to implement Title V in July, 1992, challenges to the rule forced proposed modifications in August, 1994. These modifications themselves were heavily criticized and resulted in a January 25, 1995 decision to work a new proposal. Most recently, the Agency issued a ``White Paper'' on Title V (issued 7/10/95) which proposed further reforms. Thus, some have referred to Title V as a regulatory ``moving target.'' Although the general intent of revisions is to correct past deficiencies, states [[Page H 7953]] and the regulated community are uncertain as to what the final elements of the Title V permits program will be, especially with regard to modifications made to a source subject to a permit.

Mr. BARTON of Texas. I yield to the gentleman from Illinois for a question.

Mr. BARTON of Texas. Mr. Chairman, I think there are some who question the EPA as a source, but in this particular debate, I think they are relevant.

Mr. BARTON of Texas. Mr. Chairman, we have heard a great deal today about what should and should not be in an appropriations bill. We have heard about the necessity for hearings and for slow deliberations and actions. This particular amendment that the gentleman from Texas and the gentleman from Illinois are offering should not be added to this bill. This is really a fight between waste incinerators and cement kilns that burn hazardous waste as part of the cement making process. I have some charts that I would like to show the committee. I want to walk you through very quickly and explain what we are talking about. A cement kiln typically burns at a Fahrenheit of over 3,500 degrees. A typical waste incinerator typically burns at a Fahrenheit of 2,500 degrees. The time that it takes in the cement kiln is 6 to 10 seconds, and in the hazardous waste incinerator approximately 3 seconds. When you look at how much action is generated in the cement kiln, it is an order of magnitude of greater than 100,000 times. In the waste incinerator it is about 10,000 times. The cement kiln is much larger than the waste incinerator. The bottom line is if we put 5 percent of the fuel source as hazardous waste material into a cement kiln and burn it at 3,500 degrees Fahrenheit as opposed to 100 percent of the material being in a waste incinerator at 2,700 degrees Fahrenheit, the cement kiln totally destroys it. Now, let us look at the regulations on the two. Now, these are regulations under RCRA for cement kilns regulated by EPA under RCRA subpart H. Under waste incinerators, under subpart O. There is nothing that is regulated under RCRA for waste incinerators that is not regulated under cement kilns. In fact, cement kilns have more regulations than the waste incinerators do. If you will notice here the row on metals, cement kilns do have regulations on metals. Waste incinerators do not. You can go on down the list. I have in my congressional district a town named Midlothian, TX. This town has three cement kilns, and the State of Texas and the EPA, for the last 10 years, have been constantly in Midlothian, TX, attempting to find that something wrong has been done; that some of these cement kilns, and two of the three do burn hazardous waste, have somehow polluted the air or have polluted the atmosphere. They have held hearings in Midlothian, TX. They have done repeated studies. The State of Texas has done an animal study. EPA is now trying to recreate that animal study. They have yet to find any instance of any harm being done to man, woman, child or animal or the air in Midlothian, TX, because some of the cement kilns are burning this hazardous material. We need to vote ``no'' on this amendment. As you can tell by looking at this chart, there are more than sufficient regulations both on an interim status and, once EPA certifies, on a permanent status. There is no need for this particular amendment.

Mr. BARTON of Texas. I yield to the gentleman from Texas.

Mr. BARTON of Texas. Reclaiming my time, with all due respect to the distinguished authors of the amendment, that is not what it says.

Mr. BARTON of Texas. At what level? I mean, there needs to be a standard. My suggestion would be, and I hope it does not pass, in report language we need to definitely define that because you have got an open-ended standard there.