Muskie Congressional Record: CAA History

CONGRESSIONAL RECORD -- SENATE

June 15, 1966

Page 13197

THE CLEAN AIR ACT

Mr. MUSKIE. Mr. President, the May issue of the Journal of the Air Pollution Control Association includes an authoritative article on the development of the Clean Air Act of 1963 and its amendments last year. The author is Mr. William H. Megonnell, deputy chief of the Abatement Branch, Division of Air Pollution, Public Health Service.

Mr. Megonnell records the history of Federal air pollution control legislation, beginning in 1955 when dirty air was viewed simply as a technical challenge.

He traces the changes in social and political philosophy toward air pollution, describing how the Clean Air Act reflects a growing national concern about the problem and a stronger national will to abate it.

Mr. Megonnell outlines the development of the abatement policies established in the Clean Air Act, and reports in layman's language how the policies are to be implemented.

Mr. President, my Subcommittee on Air and Water Pollution is now conducting hearings on air pollution control proposals, and exploring new pollution problems. When the subcommittee makes its report, Mr. Megonnell's article will be an excellent source for orientation on what we have done, are doing, and hope to do to prevent and control air pollution. I ask unanimous consent that the article appear in the RECORD at this time.

There being no objection, the article was ordered to be printed in the RECORD, as follows:

[From the Journal of the Air Pollution Control Association, May 1966]

DEVELOPING ABATEMENT POLICIES UNDER THE CLEAN AIR ACT

(By William H. Megonnell, Deputy Chief, Abatement Branch, Division of Air Pollution, Public Health Service, Department of Health, Education, and Welfare)

(NOTE. Presented October 26, 1965, at the Fourth Conference on Air Pollution Control, Purdue University, Lafayette, Indiana.)

At the beginning of the federal program in 1955, air pollution was viewed as a technical challenge. While technical problems remain, emphasis is shifting toward the social challenge.

The degree of federal assistance now available to states and municipalities, under the Clean Air Act, is of broadened scope and higher order of magnitude; it is not confined to technical considerations, but has been expanded to take cognizance of political and economic obstacles that often block the path toward better air pollution control.

Although I have been asked specifically to speak of abatement policies under the Clean Air Act, it would be difficult and misleading to consider the abatement provisions apart from the rest of the Act. The Clean Air Act delineates a comprehensive Federal program, which is part of an overall national effort to solve the air pollution problem. Therefore, I should like to present, very briefly, the Federal policy in relation to the general subject of air pollution and its control.

This policy is not contained in any single document, pronouncement or set of principles; instead, it has evolved over the years as the result of statements and actions involving the executive, legislative and judicial branches of the federal government. Far from being stable and firmly established, it is and must be dynamic; changes can be expected in response to and anticipation of new problems. Fundamentally, however, one thing is clear: the federal government is firmly committed to performing significant functions in the necessary air pollution control effort.

The Clean Air Act, like any law, is a manifestation of public policy. It is based not on suppositions, but on these documented and irrefutable facts: (1) air pollution has grown, through neglect, to become a national problem which seriously threatens health and welfare; (2) predictions indicate that the problem will increase alarmingly; (3) prevention and control knowledge, while far from perfect, is adequate to cope with most air pollution problems; (4) efforts to deal with air pollution have not kept pace with its proliferation; and (5) there are appropriate roles for all levels of government and all segments of society in solving the problem.

In 1955, the first federal air pollution act established the important congressional policy that primary responsibility for prevention and control rests with state and local agencies; and the federal program was limited to research, technical assistance, and training. Activities under that law brought into sharp focus many technical aspects of the air pollution problem. The inadequacy of state and local enforcement efforts was revealed, particularly in cases of inter-jurisdictional pollution. There were few regional programs and no interstate ones. These findings heightened public and official concern and led to increased demands for enforcement action.

Congress responded with positive and resolute legislation and President Johnson approved the Clean Air Act on December 17, 1963.

Careful reading of the Act suggests that its framers sought ways to promote the development and expansion of strong and capable state, regional and local control agencies. One can see in the Act no intent that the federal government would assume responsibility either for underwriting the cost of air pollution control throughout the nation or for rectifying all the deficiencies caused by long neglect of the problem. It is noteworthy that the 1963 Act retains congressional policy that responsibility for air pollution prevention and control rests primarily with state and local agencies. Essentiality of federal assistance and leadership is acknowledged in the preamble, however, and the means for implementation were broadened and strengthened. Research, training, and technical assistance responsibilities were expanded; grants-in-aid were authorized for local, regional, and state air pollution control programs; additional attention specifically was directed to the major problems of motor vehicle exhaust and sulfurous fuels; the policy of exemplary air pollution control at federal installations was reiterated; and, for the first time, legal authority was included for federal abatement of specific air pollution problems.

At first glance, the abatement provisions may appear to go counter to the declaration of policy which encourages state, local, and regional control programs. A more penetrating analysis, however, will show that a by-product of federal abatement authority will be to stimulate and supplement, rather than to discourage or supplant, state and local action. Anybody who considers the abatement provisions in the Clean Air Act a bold attempt improperly to interject the federal government into matters of state and local concern simply has not taken time to study the law.

Federal abatement powers are intended to fill two important enforcement gaps by providing (1) a means for dealing with interstate problems that are difficult and sometimes impossible to solve by remedies available to a single state, and (2) a means for dealing with intrastate problems that may be beyond the resources available to state and local authorities. The federal government can become involved in intrastate pollution problems only on the request or concurrence of state officials, as designated in the Act. In cases of interstate pollution, federal action may be initiated directly by the Secretary of Health, Education, and Welfare or on request. Abatement procedures include four major steps: (1) consultation with states, (2) conference with all affected air pollution control agencies, (3) public hearings, and (4) court action. Minimum time periods are specified between each step. At any point in the procedure, federal action may be terminated if it is found that the problem has been corrected or that effective abatement progress is being made.

The Clean Air Act has 14 sections, but more than one-third of its text is devoted to spelling out clearly and distinctly in Section 5 when and how the federal government can become involved in abatement and the procedures that must be followed. When viewed on a flow chart, it presents a tortuous path indeed from recognition to solution of a problem. This great involvement of the Congress in administrative detail probably was quite intentional. The abatement provisions may go as far toward stimulating state and local action as the research, technical assistance and financial provisions of the Act. The Department of Health, Education, and Welfare's abatement authority cannot hinder, but certainly can help, those state and local agencies that desire to do a conscientious and effective control job.

The Division of Air Pollution always has held the view, generally accepted by all interests, that air pollution control is best accomplished at the lowest level of government capable of coping with the problems in its entirety. We believe it was Congress' hope that state, local, and regional agencies, aided by the Clean Air Act's other incentives, would accept this responsibility and preclude the necessity of federal action. Based on past performance, however, we would be less than realistic if we failed to prepare for full implementation of the abatement authority; although it has taken time to staff and equip the Abatement Branch, I assure you we do intend to carry out this responsibility as effectively as possible. Mr. S. Smith Griswold, who for more than a decade directed the world's most dynamic air pollution control program in Los Angeles County, California, assumed the position as Chief of the Abatement Branch on October 4, 1965.

We have no way of foreseeing exactly where or when federal abatement action may become necessary, but locations of major potential interstate air pollution situations are not difficult to predict. Examination of a United States map will disclose that there are some 70 large metropolitan areas that cross or abut states lines; the 63,000,000 Americans living in these areas – one-third of the country's population – have no direct legal control over air pollution reaching them from another state and are literally powerless to protect themselves.

For varying reasons, the ballot box, mandamus power, and private suits have not been practicable or adequate for this purpose.

It should come as no surprise that we have been gathering pertinent background information from available sources on each of these areas. Such information sources include, for example: censuses of population, housing, manufacturing, business and government; industrial and utility directories; fuel use surveys; climatological and meteorological summaries; air sampling results and air pollution studies; news clips and complaint files; and reports on state and local air pollution control laws, staffs, budgets and enforcement activities.

Such preliminary screening is of value in assessing the relative potential need for interstate abatement action, but it is by no means adequate to supply the information necessary to substantiate federal involvement. At some point prior to initiation of formal abatement action, it is necessary to gather onsite intelligence to establish that air pollution is moving interstate and is endangering health or welfare.

Hence, as resources permit, we are beginning to undertake field work in selected areas. We are doing it openly, with the full knowledge of the states and municipalities concerned in each case and, whenever they are willing and able, with their cooperation. But with or without state cooperation or sanction, there is a federal responsibility under the Clean Air Act to maintain surveillance in those areas which potentially might have interstate air pollution problems.

It is necessary, of course, to establish priorities and schedules for such work so that it can be done in an orderly fashion compatible with our staff and facilities. This is not to say that priorities cannot be upset and schedules disrupted. The government, in fact, has little control over the location, timing, and number of possible abatement actions. When requested by proper state authorities, the law makes it mandatory that the secretary proceed to the conference stage. Thus, a requested action takes priority over other planned activities, and scheduling of personnel and facilities must be flexible.

Before the Secretary of Health, Education, and Welfare may initiate abatement action, he must have reason to believe that pollution originating in one state is endangering the health or welfare of persons in another state. Hence, our surveys and studies are aimed directly at investigation of these aspects.

Presence of pollutants in an atmosphere, interstate movement of pollutants, esthetic effects and economic impact on vegetation and materials can be demonstrated conclusively, and relatively easily, by carefully conducted field studies and data analysis. Much of our initial investigatory work, therefore, consists of aerometric and meteorological sampling, photography, examination of property and indigenous vegetation, and experimental exposure of various materials to the atmosphere.

Danger to human health can be demonstrated by methods, such as these: comparison of detected pollution levels with research findings regarding adverse health effects; epidemiological studies to investigate morbidity and mortality rates for certain diseases; interviews with local physicians, medical societies and health agencies; and opinion surveys to establish the public's state of mind regarding their reactions to pollution. Properly conducted public opinion surveys have been accepted by the courts, and they are particularly useful in air pollution problems such as those involving subjective response to odors.

In our advanced society, it should not be necessary to drag a dead body through the streets to demonstrate danger to health. There already is enough evidence to convince reasonable people that long-term exposure to low levels of air pollution contributes to and aggravates certain disease conditions; but it may be several generations before science will produce conclusive knowledge which shows, to everyone's satisfaction, that lower than lethal levels of pollution produce adverse health effects. The knowledge then would be of little use, for the damage will have been done.

Conditions which infringe on the maximum attainment of physical, emotional, and mental well-being rightly should be considered detrimental to health and welfare. Thus, air pollution which interferes with sleep, food consumption, water intake, relaxation, recreation, comfort, enjoyment and other sensibilities, even purely esthetic ones, endangers health and welfare.

Definition of an interstate air pollution problem does not, by any means, delineate the measures required for its control. Responsible sources must be located and their relative contribution to the problem determined before adequate remedial measures can be recommended. In large urban areas, which are densely populated, highly commercialized, heavily industrialized, this can be a complex undertaking.

Fortunately, Congress included in the Clean Air Act a method to facilitate the gathering of information on source contributions. In connection with any abatement conference, the Secretary of Health, Education, and Welfare may require a report of emissions and controls, based on existing data, from any person whose activities cause or contribute to the air pollution.

Effectiveness of this provision is being tested in connection with two pending abatement actions. If experience shows that the report requirement does not yield desired information, alternate methods undoubtedly will be sought, such as right of entry to private property for purposes of inspection and testing.

As you who follow Congressional activities must realize, the Clean Air Act of 1963 was not considered the ultimate tool or weapon, if you prefer, for helping to clear the air; rather, as Senator MUSKIE, Chairman of the Special Subcommittee on Air and Water Pollution, so aptly said at the time of the Act's passage: "It is a fresh beginning." Congress has not relaxed its surveillance, but it continues to seek ways to make the federal effort more comprehensive and effective.

On October 20, President Johnson approved Public Law 89-272, which amends the Clean Air Act in several important ways. It extends the present abatement responsibilities to cases of international air pollution and adds certain preventive authorities to the federal program.

In passing these amendments, the Congress was responding to the President's 1965 State of the Union message in which he said:

"We will seek legal power to prevent pollution of our air and water before it happens."

Prevention is the keynote of air pollution control. After the fact correction of air pollution makes no more sense than relying solely on treatment of illness as a public health measure. Controls always can be built into a process or system more cheaply than they can be added later. The main obstacles frequently are tradition and resignation, based on nothing more logical than a belief that nothing can or should be done simply because it has not been done in the past.

Public Law 89-272 provides for federal standards applicable to motor vehicle emissions. Surely, if there is a ubiquitous source of air pollution calling logically for federal control, it is the motor vehicle. Photochemical smog, first noted in California, is a growing problem throughout the nation; but individual requirements of different states and localities would create havoc in the mass production automobile industry.

Although the law specifies no effective date, the Department of Health, Education, and Welfare has stated that it will promulgate regulations to become applicable to gasoline powered vehicles no later than September 1, 1967 (the 1968 model year), which date was specified in the original Senate version of the bill.

The new law also requires the Department to accelerate research relating to (1) the control of hydrocarbons lost through evaporation of gasoline from carburetors and fuel tanks, (2) the control of oxides of nitrogen and aldehydes from both gasoline and diesel powered vehicles, and (3) the development of improved low cost techniques to reduce emission of sulfur oxides from fuels.

Another provision of the new Act permits the Secretary to call a conference if, in his judgment, a potential problem of substantial significance may result from discharges to the atmosphere.

Findings and recommendations resulting from such conferences, although advisory in nature, shall be admissible into the record of any abatement proceedings subsequently deemed necessary.

It is not our intention to employ this authority in areas where existing programs devote sufficient and effective attention to prevention of air pollution. There are, however, three types of situations in which it could logically and profitably be invoked: (1) when a large source is to be built in an area with no, or an inadequate, air pollution control agency; (2) when an interstate air pollution problem is likely to result if preventive measures are not taken; and (3) when a new technological development may alter, on a large scale, traditional production methods and air pollution emissions from a certain industry.

In summary, it can be seen that the Clean Air Act is having profound effects on many of us who are directly concerned with the air pollution problem. Not so obvious, perhaps, is the influence that others concerned with air pollution, in both public and private sectors of society, are having and will have on the future course of federal activity in this field. The federal program is changing because the public, through their congressional representatives, are expressing a desire for changes such as reflected in the recent amendments to the Clean Air Act.

At the beginning of the federal program in 1955, air pollution was viewed as a technical challenge. While technical problems remain, emphasis is shifting toward the social challenge.

Although implementation of the air pollution abatement authority has been gradual because of delay in appropriations, recruiting and training staff, obtaining facilities and equipment, and gathering necessary background information a vigorous and aggressive program is beginning.

The problem of air pollution has grown through apathy and neglect. Its correction demands dynamic and forceful action. The Clean Air Act and its recent amendments are designed not only to halt the growth of this social evil, but to restore, to the extent possible, the quality of air which existed in the early days of this nation. The Division of Air Pollution is preparing to carry out its abatement and prevention responsibilities as part of that corrective effort.