October 18, 1972
Page 37733
REPORT ON SUBCOMMITTEE ON AIR AND WATER POLLUTION ACTIVITY IN THE 92D CONGRESS
HON. EDMUND S. MUSKIE OF MAINE IN THE SENATE OF THE UNITED STATES Wednesday, October 18, 1972
Mr. MUSKIE. Mr. President, the Subcommittee on Air and Water Pollution, which I chair, is responsible for legislation and oversight in the Committee on Public Works relating to air and water pollution, solid waste management and resource recovery, control of noise and other matters affecting the environment. During the 92d Congress, the subcommittee produced major new laws in the areas of water and noise pollution and devoted considerable time to oversight of Federal efforts to control air pollution and solid waste which were undertaken pursuant to laws passed in 1970.
In 1972, the subcommittee held 24 days of public hearings and participated in 10 executive sessions relating to subcommittee matters. Members also participated in 39 conference committee sessions with Members of the House of Representatives. In 1971, the subcommittee held 25 days of public hearings and participated in 46 executive sessions relating to subcommittee matters.
It is clear from both the oversight hearings and the resistance encountered with respect to new laws – particularly the President's veto of the new water pollution control legislation – that the environmental honeymoon has long since passed. Entrenched opposition to the kind of public regulation, enforcement and investment that is necessary for meaningful environmental protection and improvement has surfaced in both the public and the private sectors, and continued vigilance is vital if we are to insure continued progress.
CLEAN AIR ACT OVERSIGHT
The necessity of this vigilance became evident during the subcommittee's oversight hearings on air pollution.
The oversight activity began February 16, 1972, and included 12 days of hearings in Washington, one field hearing in Los Angeles, Calif., on March 25, and an executive session on June 2 at which representatives of the Environmental Protection Agency discussed potential criminal violations by the auto companies in implementing the Clean Air Act.
The hearings were divided into two stages. The first stage examined implementation of title I, which requires the development of State implementation plans to assure that primary air quality standards are met by 1975 – guaranteeing air quality which will protect the public health – and that secondary air quality standards – guaranteeing air quality that will protect the public welfare – are met by a reasonable time thereafter. Title I also establishes uniform national standards for performance of new stationary sources of air pollution and for air pollution from hazardous substances. In regard to title I, testimony at the hearings and staff investigations indicated that:
First. Officials at the White House, the Office of Management and Budget, and the Department of Commerce – working through its National Industrial Pollution Control Council – assumed a major role in developing and revising key guidelines relating to the Clean Air Act. The hearings produced a flow chart – repudiated by EPA – which showed that OMB, rather than EPA would be responsible for final review of State implementation plans. In addition, testimony indicated
that the NIPCC reviewed EPA guidelines before they were made public, that members of NIPCC commented on EPA guidelines during the public review stages, and that NIPCC had a third opportunity to review, comment on, and revise EPA guidelines after the public review period had closed. Subsequent investigations indicate that OMB has delayed issuance of guidelines relating to hazardous substances since the spring of 1972, with the result that, nearly 2 years after enactment of the Clean Air Act, no action has been taken to control air pollution from such dangerous substances as asbestos. The final publication of standards relating to lead in gasoline, originally proposed in February 1972, also has been delayed.
Second. The specific requirement of the Clean Air Act that emission limitations be imposed on industrial polluters as an element of the control strategy of State plans was ignored. Instead, EPA was allowing a "closed loop" control strategy favored by industrial polluters. This strategy, State and local witnesses testified, was one which made it very difficult to monitor performance and enforce clean air standards. During the hearings, a smelter in El Paso, Tex., was singled out by industry witnesses as the most successful "closed loop" system. Subsequently, it was revealed that air pollution from this El Paso smelter was causing very serious lead pollution problems in the El Paso community. As of this date, EPA has not published guidelines relating to "closed loop" emission control systems.
Third. Clear legislative history and the administration's own guidelines under the 1967 Clean Air Act, which prohibited degradation of air quality in areas with air cleaner than the standards, were being ignored and degradation was being permitted. In effect the Clean Air Act, which Congress intended as a device to achieve cleaner air, was being interpreted as a license to make clean air dirtier up to certain maximum levels. Though EPA defended this interpretation, a U.S. district court and a court of appeals have ruled that EPA was wrong and that the Clean Air Act did prohibit degradation of clean air.
Fourth. At the direction of the office of Management and Budget and the National Industrial Pollution Control Council, EPA had revised its guidelines to allow consideration of cost effectiveness by States in developing regulations to protect public health, despite clear legislative history that public health not be sacrificed to short term cost considerations. Several witnesses testified that this changed interpretation resulted in heavy pressure by industries against States which desired to adopt strict control regulations.
Fifth. Major Federal leadership was urgently needed in developing new technology to control air pollution from stationary sources – particularly sulfur oxide pollution from coal-burning electric powerplants. However, this Federal leadership appeared to be lacking because the administration planned to spend only about one-fourth of the amount authorized by Congress for research.
Research efforts in some areas, including sulfur oxide control, were actually being curtailed, although there was no evidence that techniques had been developed and perfected to the point where they could be readily marketed to solve the air pollution problems.
Subsequent to the hearings, the Environmental Protection Agency reviewed and approved most of the State plans for achieving primary air quality standards in the five air pollutant categories for which EPA had published standards. In most instances where the States, as allowed by the law, requested extensions of the 1975 deadline for achieving primary air quality standards, the extensions were granted despite the fact that most States requesting the extensions appeared to have made little effort to achieve desired levels of air quality through land use or transportation controls. These controls were suggested in the Clean Air Act as devices to improve air quality where controls of individual emissions, by themselves, were not adequate.
The second phase of the hearings concerned title II, the provisions of the Clean Air Act establishing emission control standards for motor vehicles, including requirements for a 90 percent reduction of carbon monoxide and hydrocarbon emissions by 1975 and a 90 percent reduction of nitrogen oxide emissions by 1976. While the hearings were in progress, EPA denied the automakers' request for a 1-year extension of the 1975 emission control standards. The hearings and staff investigations indicated that:
First. Technology appeared to be available to meet the 1975 air quality standards despite a study by the National Academy of Sciences which indicated to the contrary. During testimony, witnesses from the NAS admitted that their study was based primarily on data supplied from the auto industry. Subsequent to the hearing, manufacturers of three automobiles, Mercedes Benz, Mazda, and Honda, have indicated that their cars will meet the 1975 standards.
Second. EPA had determined that they would not allow the auto industry to gain certification of cars as meeting the standards through "averaging" of vehicles, allowing some to be produced that were below the standards and if replacement of elements of the emission control system was required before the end of the useful life of the car, these replacements would be made at no additional cost to the auto owners – that is the cost would have to be included in the purchase price of the car. Auto industry executives had termed these two points "major concessions" which if granted would make it much easier for them to meet the 1975 standards.
Third. Many of the cost figures for meeting the 1975 standards which were being discussed were grossly inflated over actual cost and represented "sticker price" or "retail price" which included sizable markups in price over the actual cost to the manufacturer or the real cost at which cars would be sold to consumers.
Fourth. Emission control devices currently receiving most attention by American manufacturers might result in less efficient use of gasoline and some reduction in performance over current models. One study of catalytic converters discussed at the hearing, however, had indicated no substantial reductions in performance or fuel mileage.
Fifth. The Ford Motor Co. announced that it had performed unauthorized maintenance in testing of its 1972 and 1973 model year prototypes and that this maintenance had not been reported to EPA with vehicle certification requests, thus violating provisions of the Clean Air Act. As of this date no civil or criminal action has been taken against the Ford Motor Co. or any Ford employees in connection with the violations of the act.
Sixth. A study by the General Accounting Office, done at the request of the subcommittee, indicated that EPA procedures for overseeing certification of new motor vehicles were woefully inadequate and that, principally because of inadequate funding, the EPA test facility was only utilized to one-third of capacity, there were no in-plant inspections of manufacturers' testing activities, and only 17 EPA employees were assigned to monitor testing and certification relating to 52 auto companies and hundreds of different models of cars.
Seventh. The 1-year limit on vehicle certifications imposed by the Clean Air Act had been ignored by 10 auto companies with the consent of the Environmental Protection Agency.
Eighth. Because of the inadequacy of EPA test procedures, auto manufacturers had been able to rig their automobile emission control devices to pass the tests but at the same time fail to work under many normal driving conditions.
RESOURCE RECOVERY ACT OVERSIGHT
The subcommittee also held oversight hearings during the 92d Congress on the Government's response to the Resource Recovery Act and found that inaction and misdirection have forestalled any significant progress in the area of solid Waste management and resource recovery.
A field hearing in San Diego on August 23 and other investigations by the subcommittee staff indicated that major changes in the current solid waste program appear to be necessary if the Federal programs dealing with the solid waste management problem are to have any degree of success. The hearings and investigations indicated the following:
First. The mandate of the 1970 Resource Recovery Act that Federal policy change direction from emphasizing disposal to emphasizing recycling and resource recovery has been almost entirely ignored in implementation of the act.
Second. Sites for future land disposal of solid waste are increasingly difficult to find.
Third. Current Federal policies relating to taxes, freight rates, public lands management, and other economic influences strongly favor disposal after first use of raw materials rather than recycling and reuse of once-used materials.
Fourth. Federal regulation of products to reduce the volume of solid waste before the point of disposal is probably necessary, particularly in the area of packaging.
Fifth. There is significant citizen awareness of the need to engage in better solid waste management practices, but this is accompanied by frustration at limitations on the availability of recyclable and reusable products and potential markets for goods and materials which can be recycled.
WATER POLLUTION LEGISLATION
Final enactment of the Federal Water Pollution Control Act Amendments of 1972 was the subcommittee's most important achievement. During 1972, subcommittee members met in 39 conference committee sessions with representatives of the House Committee on Public Works.
This was preceded in 1971 by 33 days of public hearings and 45 executive sessions of the subcommittee and the committee on the water bill. Thus, subcommittee members met a total of 117 times in developing the most comprehensive water-pollution legislation even enacted.
On September 14, 1972, the conferees reached agreement. Both Houses of Congress agreed to the conference report on October 5-the Senate by a margin of 74 to 0.
The water pollution bill was vetoed by the President on October 17, but the veto was overridden by a 52-to-12 margin in the Senate and a 247-to-23 margin in the House, and the water pollution bill was enacted into law as Public Law 92-500.
Key provisions of the new law relate to:
POLLUTION DILUTION
The law specifically bans pollution dilution as an alternative to waste treatment, although stream flow augmentation is recognized as a useful means of reducing the environmental impact of runoff from nonpoint sources.
IN-PLACE POLLUTANTS
Because of the rigorous nature of the test to be applied to any application for a permit for the disposal of dredged soil, the law provides for a program to assure that the economic base of Great Lakes harbors would not be disrupted by environmental requirements. The law intends that a major effort be put forth to remove in-place pollutants, especially toxic pollutants, from harbors in the Great Lakes and that material be disposed of in a manner which shall assure minimal environmental impact.
CONSTRUCTION GRANTS
The law authorizes $18 billion for fiscal years 1973 to 1975 for 75-percent Federal grants to communities through contract authority for construction of sewage treatment facilities. This provision also authorizes grants for the reconstruction of existing sewage collection systems and the installation of new collection systems in existing communities but not new communities.
Priority on the distribution of funds made available is to be given to the construction of needed waste treatment facilities.
The removal of a requirement in the previous law that a State participate in each project in order to receive a higher level of Federal assistance should provide the States with more flexibility in the distribution of limited funds.
The new law changes the financing method to a contract authority approach with contract obligations later fulfilled by appropriations. This way the States and communities are assured an orderly flow of Federal payments. This should in turn result in substantial savings and efficiency.
The law provides for reimbursement to those agencies – including States, municipalities and inter-municipal agencies – which have continued with their water pollution control construction program but which did not receive the full amount of Federal contributions.
The $2.75 billion authorized for this purpose is intended to place all States and cities on an equal basis and to redress any discrimination that may have existed in prior programs against those larger municipal agencies which were unable to take full advantage of the Federal sharing programs in effect at various times since the inception of the program.
AREA WASTE TREATMENT MANAGEMENT
The law requires the development of areawide waste management plans with statewide planning, either through a regional process in a designated area or by the State for areas outside of designated regions. There must be a waste management planning process within 1 year after enactment, and initial plans must be filed with the Administrator within 2 years after that process is initiated. Waste management agencies must be designated covering the entire area of the State.
More than one management agency may be designated in any planning region, and existing entities, including local governments or the State itself, are to be utilized where appropriate.
EFFLUENT LIMITATIONS
A two-phase program is established for the application and enforcement of effluent limitations.
The first phase requires point sources to achieve that level of effluent reduction identified as "best practicable control technology" no later than July 1, 1977; the second phase requires the application of "best available control technology" by July 1, 1983.
In defining "best practicable" for any given industrial category, the Environmental Protection Agency is expected to take a number of factors into account. These factors should include the age of the plants, their size, the unit processes involved, and the cost of applying such controls.
The EPA may interpret "best practicable" to require higher levels of control than any currently in place if it determines that the technology to achieve those higher levels can be practicably applied.
The law requires that implementation plans and compliance schedules in existing water quality standards be adhered to, to the extent that those plans and schedules require compliance no later than July 1, 1977, and to the extent that they call for a degree of pollution control no less stringent than that defined by "best practicable control technology."
A different test is applied to the Environmental Protection Agency's determination of "best available demonstrated technology." In determining the degree of effluent reduction to be achieved for a category or class of sources by 1983, the EPA may consider a broader range of technological alternatives and should, at a minimum, review capabilities which exist in operation or which can be applied as a result of public and private research efforts.
In making the determination of "best available" for a category or class, the EPA is expected to apply the same principles involved in making the determination of "best practicable" – outlined above – except as to cost-benefit analysis. As to the cost of “best available" technology, the law intends that, while cost should be a factor in the Environmental Protection Agency's judgment, no balancing test will be required. Also, rather than establishing the range of levels in reference to the average of the best performers in an industrial category, the range should, at a minimum, be established with reference to the best performer in any industrial category.
The distinction between "best practicable" and "best available" is intended to reflect the need to press toward increasingly higher levels of control in 6-year stages. Through the research and development of new processes, modifications, replacement of obsolete plans and processes, and other improvements in technology, it is anticipated that it should be possible, taking into account the cost of controls, to achieve by 1983 levels of control with approach and achieve the elimination of the discharge of pollutants.
INFORMATION AND GUIDELINES
The Environmental Protection Agency must publish guidelines for the establishment of the effluent limitations to be achieved by categories and classes of point sources – other than publicly owned treatment works.
EPA is expected to be precise in the guidelines so as to assure that similar point sources with similar characteristics, regardless of their location or the nature of the water into which the discharge is made, will meet similar effluent limitations.
However, EPA may modify any effluent limitation based on "best available technology" to be achieved by July 1, 1983, with respect to any individual point source, upon a showing by the owner or operator of such point source that an effluent limitation so modified will represent the maximum use of technology within the economic capability of the operator and will result in reasonable further progress toward the goal of the elimination of the discharge of pollutants.
The law clearly contemplates that the decision making responsibility, as in the Clean Air Act, on guidelines and regulations to be published under this act rests, unless otherwise specified, with the Administrator of EPA and not such other agencies as the Office of Management and Budget and the National Industrial Pollution Control Council. EPA regulations and guidelines are not to be reviewed by these and other agencies prior to their promulgation except on the same basis as review and comment by members of the public. OMB comment and review should thus come in the form of comments available to the public, made during the period for public comment.
NATIONAL STANDARDS OF PERFORMANCE
In order to assure that a reasonable cost test is met, the Administrator must take into account the cost of compliance with any new source performance standards as applied to any category or class of new sources. The law expects that this cost test would be considerably more restrictive than the test which would be applied to "best available technology" because pollution control alternatives are available to a new source which are not available to existing sources.
It may be that in most instances, the technology for elimination of discharge of pollutants from new sources can be achieved on a considerably more reasonable basis than for existing sources.
The law intends that this alternative be examined carefully and each determination of standards applicable to any category of new sources be periodically reexamined by the Administrator to insure that any new source constructed does the best that can be done in terms of performance.
TOXIC AND PRETREATMENT EFFLUENT STANDARDS
Each municipal waste treatment plant must, as a condition of a permit for discharge, identify any industrial users of that plant and pretreatment requirements applicable to each industrial user. A violation by the industrial user of pretreatment requirements would be enforceable directly against that user by the EPA.
FEDERAL ENFORCEMENT
EPA is required to issue abatement orders where it finds that any person is in violation of enumerated regulatory requirements of the act.
It is expected, of course, that upon receipt of information giving the EPA reason to believe that a violation has occurred, it has an affirmative duty to take the steps necessary to determine whether a violation has occurred, including such investigation as may be necessary, and to make a finding as expeditiously as practicable.
It is intended that enforcement actions be initiated against both continuous and intermittent violations of effluent limitations as well as against violations of compliance schedules. Because permits are expected to include precise compliance schedules, the Administrator must initiate enforcement action whenever there are delays in such actions as completion of plans and design, letting of contracts, initiation of construction, or the meeting of construction deadlines.
OIL AND HAZARDOUS SUBSTANCE LIABILITY
The law provides that during the first 2 years following enactment, a penalty procedure establishing a liability limit of $50,000 for nonremovable discharges of oil and hazardous substances from vessels and onshore and offshore facilities shall apply. At the expiration of this 2year period, a modified liability-penalty provision will be implemented. The 2year period should provide the Administrator with ample opportunity to designate those substances which are hazardous and cannot be removed, and to establish a penalty level for each.
During the initial 2-year period, the Administrator and affected parties will examine any problems associated with administrative establishment of liability limits. This period will also permit examination of the need for legislation to improve the existing methods of storing, shipping, and handling hazardous substances which cannot be removed from the water.
Prior to the expiration of the 2-year period under which the penalty is operative, and after the maritime industry, the insurance industry, the chemical industry, and appropriate Federal agencies have examined the implications of the modified liability-penalty provision, legislative recommendations should be made to the appropriate committees of Congress as to the needs to improve the capability of vessels to avoid hazardous substance spills. Should new legislation be considered any liability provisions imposed will be reviewed and necessary changes proposed by the Committees on Public Works.
NATIONAL STUDY COMMISSION
The law provides for a study to provide Congress with an independent evaluation of the economic, social, and environmental implications of the regulatory aspects of the legislation.
THERMAL DISCHARGES
Thermal pollutants will be regulated as any other pollutant unless an owner or operator of a point source can prove that a modified thermal limitation can be applied which will assure "protection and propagation of a balanced indigenous population of fish, shellfish, and wildlife."
CERTIFICATION
The certification provision provides that a State water pollution control agency will have an opportunity to determine whether or not effluent limitations established for discharges subject to a section 402 permit will be at least as stringent as any applicable requirements of existing State program. Secondly, a State may attach to any federally issued license or permit such conditions as may be necessary to assure compliance with water quality standards in that State.
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
The law provides that the Administrator may review any permit issued pursuant to this act. as to its consistency with the guidelines and requirements of the act.. Should the Administrator find that a proposed permit does not conform to the guidelines issued pursuant to this act, he shall notify the State of his determination, and the permit cannot issue until the Administrator determines that the necessary changes have been made to assure compliance with such guidelines and requirements. The Administrator is permitted to waive entirely his authority to review permits for certain categories and classes of pollution sources to all States which receive a delegation. The Administrator is also permitted to specify categories and classes for which he will not review for specific States on the basis of the programs which are in existence in those States.
No enforcement action should be taken for failure to have a permit until December 31, 1974. This will provide an adequate opportunity for the Administrator to review and issue or not issue permits for the application pending on the date of enactment or pending as a result of expansion of the program.
Concern has been expressed that the "immunity" provision will cause dismissal of pending enforcement actions under the Refuse Act of 1899. Section 4, the savings provision, provides the following relevant words pertaining to the Refuse Act:
No suit, action, or other proceeding lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity ... shall abate by reason of the taking effect of the amendment made by section 2 of this Act.
Without question, it is intended that this provision includes enforcement actions brought under the Refuse Act, the Federal Water Pollution Control Act, and any other acts of Congress.
Additionally, it should be noted that the Administrator may immediately act on pending permit applications. Should he deny a permit to an applicant, enforcement provisions would also be available immediately.
OCEAN DUMPING
The law provides for the Administrator to review any proposed discharge into the oceans prior to the issuance of guidelines under this section and to make a determination whether or not such discharges are in the public interest.
This section regulates the discharge of any pollutants subject to this act from any outfall sewer regardless of where that sewer ends and from any vessel within the 3-mile limit, any other legislation to the contrary notwithstanding. Should the Administrator find that criteria regulating discharges into the territorial sea from vessels established by other legislation are in conflict with this legislation, this legislation prevails.
PERMITS FOR DREDGED OR FILL MATERIAL
The law intends that the Secretary of the Army have the permit-issuing authority with respect to the disposal of dredged spoil. However, the Administrator of the Environmental Protection Agency has three clear responsibilities and authorities.
First, the Administrator has both responsibility and authority for failure to obtain a permit for disposal of dredged spoil or failure to comply with the condition thereon. Enforcement authority is available because discharge of the "pollutant" dredged spoil without a permit or in violation of a permit would violate effluent limitations established by the act.
Second, the Environmental Protection Agency must determine whether or not a site to be used for the disposal of dredged spoil is acceptable when judged against the criteria established for fresh and ocean waters similar to that required under the ocean dumping section of the law.
Third, prior to the issuance of any permit to dispose of spoil, the Administrator must determine that the material to be disposed of will not adversely affect municipal water supplies, shellfish beds and fishery areas – including spawning and breeding areas – wildlife or recreational areas in the specified site. Should the Administrator so determine, no permit may issue.
DISPOSAL OF SEWAGE SLUDGE
The law includes a provision which relates to the disposal of sewage sludge from waste treatment plants. Disposition of sewage sludge – either by dumping sludge on land in such a fashion as to run off into waters or dumping in the ocean in such a manner as would have it returned into territorial waters – in any manner which might affect the inland or coastal navigable waters is prohibited. This provision should, in conjunction with the provision which regulates any ocean dumping inside the 3mile limit, provide adequate safeguards against immediate threats to the shorelines, beaches and fish, shellfish and wildlife and recreational resources in coastal areas.
EMERGENCY POWERS
Under the law, the Administrator may seek an injunction against any discharge which presents an imminent substantial endangerment to the health of persons, to their economic well-being, or to fish and wildlife. This provision is intended to be a supplement to and not a substitute for the regulatory provisions of the bill.
CITIZEN SUITS
For purposes of the citizen suit section of the law, a citizen is defined as a "person or persons having an interest which is or may be adversely affected." Thus, under the language of the law, a citizen suit may be brought only by those persons or groups which are among those whose interest-whether environmental or economic-is or may be injured by the violation of the act which is the basis of the suit. Citizens seeking to bring an action are required to give appropriate notice and wait 60 days before filing suit to give the appropriate administrative agencies a chance to act.
OTHER AFFECTED AUTHORITY
The law intends to clarify the relationship between the Federal Water Pollution Control Act – FWPCA – and the National Environmental Policy Act – NEPA – and to extend the provisions of NEPA to two activities of the Administrator: the making of grants for the construction of publicly owned waste treatment works and the issuance of permits under section 402 of the FWPCA to "new sources" as defined in the law.
Application of sections 102(2) (C) and 102(2) (D) of NEPA to the making of waste treatment grants requires the Administrator to consider "alternative" methods of waste treatment which may have the beneficial effect of decreasing blind reliance on "secondary treatment" and stimulate more innovative methods of waste treatment. Additionally, the Administrator is required to consider the various "alternatives" described in sections 102(2) (C) and 102(2) (D) of NEPA in connection with the proposed issuance of a permit to a new source. Further, this provision addresses itself to the authority of Federal licensing and permitting agencies, other than EPA, as relates to effluent limitations and other requirements established pursuant to the FWPCA. EPA is the sole Federal agency specifically charged with comprehensive responsibility to regulate the discharge of pollutants into the waters of the United States, and section 511 (c) (2) will ensure that no source of discharge which is in lawful compliance with an effluent limitation established pursuant to the FWPCA will be required to meet a different standard as a condition of a license or permit granted by another Federal agency, such as the Atomic Energy Commission. Such agencies shall accept as dispositive the determinations of EPA and the States; however, nothing in section 511 (c) (2) is to be construed to discharge any Federal licensing or permitting agency, other than EPA, from its full range of NEPA to be licensed or permitted.
ENVIRONMENTAL FINANCING AUTHORITY
The law establishes an Environmental Financing Authority – EFA – to assist communities unable to obtain adequate financing to fund the local share of the cost of waste treatment projects assisted by this Act. EFA will cease to exist on July 1, 1975. This termination date was included to permit a complete reevaluation of EPA at any early date.
The law does not intend that EPA come into competition with the private underwriting market, nor should EFA become involved in any circumstances where a community can borrow money on the open market at reasonable rates. EPA is intended only to assist those communities which. after a reasonable attempt to obtain financing in the private market, have been unable to obtain funds needed to construct waste treatment facilities at a reasonable cost.
NOISE CONTROL LEGISLATION
In 1972 the subcommittee also developed the first comprehensive legislation for the control of noise. The subcommittee held public hearings on noise control legislation on March 24 in San Francisco, Calif., and on April 12 and 13 in Washington, D.C. Following the public hearings there were two executive sessions by the subcommittee and six executive sessions by the full committee, culminating in committee's reporting the Environmental Noise Control Act of 1972 on September 19. The noise bill passed the Senate on October 13 and was finally approved by both Houses of Congress on October 18 when the House passed the Senate bill with amendments which the Senate subsequently agreed to.
The version of the act finally approved was a distinct improvement over either the Senate or the House till. This new law should offer the Nation some protection from the growing onslaught of unwanted sounds which threatens to impair the physical and mental well-being of a growing number of Americans.
Key features of this legislation provide for the regulation of manufactured products, aircraft, and interstate carriers. The Administrator of the Environmental Protection Agency is required to identify products which are major sources of noise and which fall into the categories of construction equipment, transportation equipment, any motor or engine, or electrical or electronic equipment, as distinguished from household appliances. He must establish noise emission standards for these products within 24 months after enactment.
Not only must EPA determine the level of noise emissions from a product which will assure that the product's use under varying conditions will not contribute to unacceptable environmental noise levels, EPA must also be assured that noise emission standards for a product will be adequate to protect public health and welfare when that product is used in combination with other products or sources of noise. This will necessitate standards for an individual source of noise which are considerably more stringent than might be required if that product were always to be used alone. In establishing these regulations, the Administrator must take into account the technology which is available to reduce noise.
Additionally, States and local governments retain the right to adopt and enforce controls on environmental noise which are more stringent than Federal product standards, through the licensing, regulation or restriction of the use, operation or movement of any product or combination of products. State and local regulatory agencies will be aided by EPA, which is required to develop and publish information identifying levels of environmental noise at which adverse effects on public health and welfare can be avoided with an adequate margin of safety.
The Environmental Protection Agency is also authorized to initiate a regulatory process to protect public health and welfare from aircraft noise. The Administrator shall conclude within 9 months a study of aircraft noise problems, including the implications and means of achieving levels of cumulative noise around airports, the adequacy of existing noise emission standards and operational controls, and the impact of aircraft noise on public health and welfare. Subsequent to that study the Administrator is required to take the lead on the control of aircraft noise, submitting regulations adequate to protect public health and welfare from aircraft noise and sonic boom. Such regulations must include proposed means of reducing noise in airport environments through the imposition of curfews, the application of noise emission standards on new and existing aircraft and the imposition of flight path alternatives, and controls to increase the load factor on commercial flights or other reductions in the joint use of airports.
Within 30 days, the Administrator of the Federal Aviation Administration shall publish the EPA-proposed regulations as its notice of proposed rule-making and, within 60 days he must held a public hearing on the EPA proposal. On the basis of that hearing and after consultation with the EPA, the FAA must publicly accept, modify or reject the regulations contained in the EPA proposal. The FAA Administrator is required, as the result of the hearing process and after consultation with the EPA, to prescribe regulations to implement the proposed or modified recommendations. In summary, both a technological response in the form of emission standards and a regulatory procedure in the form of operational and other airport noise controls must be established.
The Federal Aviation Administration's regulatory responsibility is retained in order to assure technological availability and to ensure air safety. However, the FAA, following the lead of EPA, will be required to promulgate regulations which assure protection of public health and welfare in airport environments even where it is not possible to achieve necessary noise reductions through the application of specific emission controls on engines and aircraft.
The decisions of the Administrator of the Federal Aviation Administration in accepting, modifying, pr rejecting the proposals of the Environmental Protection Agency, or in promulgating aircraft noise standards, are subject to judicial review. In addition, any individual can bring suit against the Administrator of the Federal Aviation Administration for failure to perform a duty which is not discretionary. In such a case, the test of the Administrator's action is not whether it is arbitrary or capricious, but whether it is consistent with the express requirements of the act.
The Administrator of the Environmental Protection Agency is also authorized to establish noise emission standards for interstate carriers, including railroads, trucks, and buses. This preemption provision is designed to reduce the impact of conflicting State and local noise controls on interstate carriers. However, the administration is permitted to waive this provision as necessitated by local conditions, to protect the public health and welfare; $21 million is authorized for fiscal years 1973 through 1975 to implement the noise control program.
NATIONAL ENVIRONMENTAL CENTERS
In March of 1971, several members of the committee introduced the National Environmental Laboratory Act of 1971. The bill was designed to establish a national system of environmental laboratories which would provide the needed research and data on environmental pollution. Ultimately, 34 Senators cosponsored this legislation.
Following 6 days of public hearings, the bill, retitled the National Environmental Centers Act of 1971, was reported to the Senate on November 30, 1971, and passed on December 7, 1971. The House did not act on this bill in the 92d Congress.
INTERSTATE ENVIRONMENTAL COMPACTS LEGISLATION
On January 24, the subcommittee held a hearing on a bill to permit establishment of interstate environmental compacts. The bill had previously been reported from the Judiciary Committee. An executive session was held on this bill on February 15 at which time it was reported to the Senate with amendments. The subcommittee amendments which were accepted by the Senate on March 1, 1972, provided assurances that provisions of interstate compacts affecting the environment could be reviewed by Congress, before final adoption, to avoid any adverse implications for the environment. The House did not act on the interstate compacts bill during the 92d Congress.
OTHER ACTIVITIES
In May and June 1971, the subcommittee held 3 days of public hearings into the possibility of economic dislocation resulting from environmental control orders. Testimony at these hearings and subsequent investigations served as the basis for amendments included in the 1972 economic development legislation to protect employees who might lose jobs because of environmental control orders and require EPA investigations of plant closings justified because of environmental control orders to determine if environmental matters were being used to disguise other reasons for a plant closing.
The 1972 economic development legislation was vetoed in part because of inclusion of these provisions.
New developments in cleaning up automobile exhaust, including alternatives to the internal combustion engine, and their potential impact in meeting standards prescribed by the Clean Air Act were examined at a hearing held by the subcommittee's panel on Environmental Science and Technology in Washington, D.C. on March 14, 1972.
The subcommittee, in conjunction with the Committee on Interior and Insular Affairs held 4 days of oversight hearings on the Impact of the National Environmental Policy Act beginning on March 1, 1972.
An oversight hearing was also held on the environmental problems of the Lake Tahoe Basin and Federal policies affecting those problems on August 21, 1972 at Lake Tahoe.