June 12, 1974
Page 18956
Mr. MUSKIE. Mr. President, the conference report on H.R. 14368, the Energy Supply and Coordination Act, is pending before the Senate. This legislation has been before the Senate in differing forms since last fall. It began as a part of the effort of Congress to respond to the energy crisis by enacting short term energy conservation and environmental modification proposals.
Mr. President, the conference report on H.R. 14368 is a complex but limited measure. It is not, like the House bill, a crisis measure. It is not as general in its terms as the Senate bill. The conference report on this legislation is both a compromise and an improvement. It improves on both the House and Senate bill in that it makes more specific the requirements of each. It is a compromise between the House and the Senate bill because it accepts, in the short term – the period between now and June 30, 1975 – much of the approach embodied in the House legislation and it adheres, in the long term – the period between now and January 1, 1979 – to the limitations of the Senate amendment.
I think it is important to identify, for the purpose of adequate legislative history, the very significant differences between the House and the Senate approach to the issue of coal conversion.
As I indicated earlier, the House legislation was crisis-related. It was virtually identical to the previously adopted conference report on this issue – a conference report which was written during the period of severe energy shortage and oil embargo.
The Senate bill, on the other hand, recognized that the public's perception of the crisis had changed – that the energy crisis subsided with the termination of the Arab embargo – and that legislation of this kind must necessarily be within the framework of existing environmental constraints, rather than outside of those constraints.
The House bill was mandatory in the near term and voluntary in the long term. But in both short and long term, the House bill abandoned the existing statutory base for clean, air regulations – public health-related primary ambient air quality standards.
The Senate bill in the near term permitted compromise of statutory clean air programs only on the basis of a demonstrated unavailability of fuel. In the long term, the Senate bill mandated coal conversions but insisted on maintaining minimum health-related air quality.
Under the House bill, the existing basis for clean air controls was suspended in favor of a new test to respond to crisis. The House bill would have permitted coal conversions to be required or to continue whenever no significant risk to health could be demonstrated.
The Senate bill proposed that energy self-sufficiency should be a function of our ability to maintain our clean air goals while reducing our reliance on foreign fuels. The Senate bill completely barred coal conversions in areas where any primary ambient air quality standard was being exceeded and specifically barred any conversions which would cause the primary standard to be exceeded.
Mr. President, while the bills appeared similar, the intent of each body was sufficiently different that the conferees were confronted with an almost impossible task of putting together a conference report which was acceptable in purpose and in scope to the membership of both bodies. I think we have done this.
In terms of the Senate position, there is adequate protection against any long term coal conversion causing an unacceptable environmental impact. On the other hand, the House has achieved the short term goal of their proposal. And the House has achieved two significant modifications of the Clean Air Act relating to transportation controls – provisions which were in earlier conference reports – provisions which my colleagues in the conference would have preferred to defer to a later time after a more complete review but provisions on which the House insisted.
The Senate also prevailed in two important respects unrelated to coal conversions. We have House agreement to extend the authorizations of the Clean Air Act for 1 year which will provide time to review carefully the implications of the Clean Air Act. And we have obtained House acceptance of a Senate provision which clarified the relationship between the National Environmental Policy Act and the Clean Air Act.
Without exception, the Clean Air Act actions will not be subject to the National Environmental Policy Act. This provision should reduce the potential for litigation and delay associated with the development and implementation of clean air regulations. It should improve the certainty and finality which the Congress sought in 1970 when it wrote the Clean Air Act. And, most importantly, it should end the effort of those who would use NEPA as a mechanism to compromise the statutory mandate for clean air.
My colleagues should note that the provisions of both the House and the Senate bill regarding auto emissions standards for 1976 vehicles were identical and remain so.
Mr. President, I would like to expand the history of this legislation in terms of coal conversions and the Clean Air Act amendments. I have discussed in general the differences between the two bills. I have outlined the agreement. I have discussed Clean Air Act authorizations, the application of NEPA to the Clean Air Act, the auto emissions questions, and I have referred to the issue of transportation controls. I do not intend to discuss these matters in detail; the conference report and the statement of managers provide an adequate description of each.
The bill provides for a legislative basis to deal with three energy-related problems
First, the conference report provides a statutory basis for the granting of variances for the period between enactment and June 30, 1975, whenever the Administrator of the Environmental Protection Agency determines that clean air compliance is not possible solely because of
the unavailability of fuels necessary to meet the act's requirements. This is a very limited provision. It is intended to respond to embargo type situations. If compliance with the Clean Air Act is dependent on fuels of certain pollution characteristics, and if fuels of those pollution characteristics – or improved pollution characteristics – are not available, then and only then the Administrator can suspend for the period of the unavailability of such fuels between now and June 30, 1975, the applicability of Federal, State or local clean air requirements. This is unilateral authority. It is intended to provide a quick response mechanism in the event another crisis occurs.
It is not a method to grant variances where fuel is available but the price is high, nor is it a method to grant variances where fuel burning stationary sources have dragged their feet on installing necessary pollution control equipment.
This provision specifically and precisely permits the Administrator of EPA to suspend for not more than the period between now and June 30, 1975, the application of any stationary source fuel or emission limitation solely on the basis of the unavailability of fuels necessary to comply with that stationary source fuel or emission limitation.
Second, there is authority for the Administrator of the Environmental Protection Agency to suspend temporarily certain stationary source fuel or emission limitations if, as a result of an order by the Federal Energy Administration Administrator which prohibits a power plant or other fuel burning stationary source from burning oil or natural gas, that source converts to coal. This means that the Administrator of EPA can grant a suspension from certain clean air requirements in limited instances where facilities are now burning oil and coal, have the necessary capability and plant equipment to burn coal, and either began conversion to coal between September15 and March 15 or converted to coal as a result of an order subsequent to enactment of this act. Unlike the situation which occurs when there is an unavailability of fuel, however, the Administrator of the Environmental Protection Agency cannot grant a variance from the clean air requirements unless he determines that to do so would not cause or contribute to emissions of air pollutants which would result in levels of such pollutants in excess of national primary ambient air quality standards.
Moreover, in order to assure that any such conversion does not itself cause primary standards to be exceeded, the Administrator must establish emission limitations, determine the pollution characteristics of coal to be used, or require other enforceable emission control measures as a condition of the suspension.
Third, and perhaps the most significant provision of the coal conversion aspect of this bill is the provision which requires the Administrator of the Federal Energy Administration to issue orders prohibiting the use of petroleum products or natural gas to facilities which have on date of enactment of this act the capability and necessary plant equipment to burn coal for the period beyond June 30, 1975. This provision is mandatory with respect to power plants and permissive with respect to other major fuel burning stationary sources. As with the temporary suspension, authority, the FEA Administrator must make his determination on a unit-by-unit basis. And, a power plant which has several units subject to such prohibitions would have to obtain a separate suspension or extension from the EPA Administrator for each unit.
This provision to the extent achieveable within the basic constraints of the Clean Air Act, is intended to reduce the burden and the reliance on foreign oil by increasing utilization of domestic coal. This provision requires that powerplants and other sources which are prohibited from using natural gas and petroleum products and which actually convert to coal comply with the existing implementation emission limitations or other requirements of implementation plans by no later than January 1, 1979. In the interim, these sources must assure compliance with primary ambient air quality standards and in areas where standards are exceeded, with applicable emission limitations.
This is the provision with which the conferees had the most difficulty because it was in the context of this provision that the conferees were treading on the most uncertain ground.
Not only were the conferees confronted with the basic policy question of mandating the use of a certain fuel in the long term but the conferees were also confronted with the need to cause the use of that fuel in a manner consistent with environmental objectives.
The House allowed an extension of the deadline for compliance with all applicable air pollution control requirements to not later than January 1, 1979, if a revised compliance schedule were approved and if no significant health risk would occur in the period of the extended compliance schedule.
The Senate bill required a similar extension of deadline to not later than January 1, 1979, only if a revised compliance plan were approved and primary ambient air quality were not exceeded during the extended compliance period. In addition, under the Senate bill, conversions were barred in air quality regions in which primary ambient air quality standards are now being exceeded.
The conference agreement permits an extension of compliance schedule to not later than January 1, 1979, only if, first, emission limits or other enforceable measures to maintain primary standards will be complied with; second, in any region in which primary standards are now being exceeded, requirements of the implementation plan applicable to any pollutant for which the national primary ambient air quality standard is now being exceeded are complied with; and third, the Administrator has approved a compliance plan.
An approved compliance plan must include adequate assurance that the plant or installation will obtain approval of a revised schedule for and means of compliance with all applicable pre-conversion implementation plan requirements no later than January 1, 1979. If the source fails to obtain an approved schedule, the compliance extension ceases, and the source is in violation of the Clean Air Act and subject to enforcement action.
The Administrator is required to promulgate regulations within 90 days requiring any source to which a compliance date extension applies to submit and obtain approval of its revised measures for and schedule of compliance.
Such regulations should set forth deadlines for submittal and approval of the revised compliance schedule in order to assure earliest possible achievement of the emission limitations in the applicable implementation plans. Failure to set deadlines in these regulations could result in unnecessary delay in achieving clear air goals. Also, early submittal and approval of revised compliance schedules is necessary to assure achievement of applicable emission limitations no later than January 1, 1979.
As noted above, long term mandatory conversion can only occur where national primary ambient air quality standards will not be exceeded. While the conference report narrows the scope of the Senate prohibition on such conversions in air quality regions where the primary standard is presently being exceeded, it maintains the thrust of the Senate position by prohibiting any conversion from taking place in any region where the primary standard for a particular pollutant is being exceeded if the effect of the conversion would be to cause emissions of that particular pollutant to exceed the limits specified in the applicable implementation plans.
Mr. President, this means that if a region has not achieved the primary standard for oxides of sulfur and a conversion would cause sulfur oxide emissions to exceed limitations applicable to the plant in question, a conversion would be barred until the implementation plan limitations could be achieved. This is the so-called regional limitation.
Further, Mr. President, even if there is no "regional limitation" on the conversion, if the result were to cause emissions which would cause or contribute to concentrations of pollutants in excess of the primary standard – the "primary standard condition" – the conversion would be delayed until the plant was capable of achieving emission limitations or other enforceable measures which would assure compliance with the primary standard condition.
It is important to note that this policy does not prohibit conversions – it only prohibits those conversions limited by the "primary standard condition" or the "regional limitation" until the power plant or other major installation has installed the necessary pollution control capacity – or obtained clean coal – which permits the unit in question to meet applicable emission limitations.
In other words our purpose is to give the Federal Energy Administration Administrator authority to put plants with the capability and necessary plant equipment on notice that they will be required to convert to coal by a date certain with legal requirement that the plant or installation acquire the necessary pollution control capability to assure compliance with the Clean Air Act at the time conversion occurs. Failure of the plant to acquire the control equipment or clean coal would not be a defense against the FEA prohibition. If the capability to comply were not acquired, the plant or installation would be in violation of Clean Air Act emission limitations and subject to statutory and criminal penalties.
The inclusion of the non-criteria pollutant requirement in no way relieves the administrator from his nondiscretionary duty to develop and publish criteria for such pollutants in order to trigger national standards as required under the Clean Air Act. This provision is included in recognition that some pollutants may need to be regulated before that process can be completed. It recognizes that the air quality standards process entails a time lag. We deemed it unwise to wait for the completion of that entire process before providing some protection from these pollutants.
Mr. President, this bill is special legislation to deal with a special situation. It is not intended to set precedents. The bill is temporary in time and limited in application.
The auto emissions question is resolved for 2 years. The statutory standards will take effect in 1978 which should provide more than ample time to achieve them.
The transportation control limitations are only temporary. Congress must determine whether parking surcharges, parking management regulations and other transportation control measures are necessary and appropriate aspects of urban pollution control strategies.
The variance authority both as a result of unavailability of fuels and short-term coal conversions is temporary. This authorization is for 1 year. While the NEPA-EPA clarification is not time limited, this issue was intended to be resolved in 1969 and therefore is neither new or precedent- setting.
There are significant limitations on the authority of FEA to prohibit the burning of petroleum products or natural gas.
Only those units of power plants and other major fuel burning stationary sources with the "capability and necessary plant equipment" on the date of enactment of this act may be subject to an FEA order and only those which actually convert to coal – as opposed to facilities which meet the capability and equipment test but presently burn coal – can receive either a short-term suspension or long-term extension under the Clean Air Act.
The test of "capability and necessary plant equipment" is important. As the conference report indicates, each plant or installation would have to have had the capability to burn coal at one time. Also the addition of components necessary to renew that capability would have to be simple and inexpensive.
The conferees were aware of the proposed administration amendment to require that necessary plant equipment only be reasonably available. This amendment was rejected by both House and Senate because it suggested a broader application of the FEA authority to effect conversion than intended by either body.
One example of the kind of modification necessary to facilitate conversion is discussed in a copy of a letter from Charles E. Monty, vice president of Central Maine Power Co. to Mr. Clark Grover, Director, Coal Switching Task Force, Federal Energy Office. I ask unanimous consent to include the text of Mr. Monty's letter at this point in the RECORD.
This plant and others like it would simply not meet the test of necessary plant equipment and capability required by the act, even though such equipment might be reasonably available as proposed by FEA and rejected by the Congress.
Finally, the necessary plant equipment has to be available to the unit for which conversion is required on date of enactment, not at some later date.
An important clarification in the conference report relates to enforcement of interim procedures to assure compliance. Senate conferees insisted that the Environmental Protection Agency's determination that emissions from coal converters would not cause primary standards to be exceeded must be articulated in emission limitations or other precise, enforceable measures for regulating what comes out of the stack. The conference report on this bill underscores the fact that it is not ambient standards which are enforced but emission limitations or other stack related emission control measures. Ambient standards are only a guide to the levels of emission controls which must be achieved by specific sources. In 1970, we recognized that a control strategy based on a determination of ambient air pollutant levels in relation to each individual source would be unenforceable. Existing clean air implementation relies specifically on the application of enforceable controls against specific sources. We have continued that procedure in this law.
To the extent intermittent control strategies are permitted as an interim measure applicable to coal conversion, they too must be enforceable. The bill specifically and precisely sets forth that such strategies must be enforceable. They must be enforceable by the Administrator of EPA, not the States – not the local governments – not polluters – but by the Administrator of EPA who will have the responsibility for imposing such strategies if they are to be allowed at all.
It may be a non sequitur to suggest that intermittent control strategies are enforceable by EPA. An analysis of EPA's monitoring capability suggests that monitoring is severely limited. Budgetary constraints have meant that necessary monitoring equipment and personnel have not been available and in fact the situation has gotten worse in certain regions where EPA has entirely abandoned the monitoring effort to the States. An EPA memo states:
As a result of decentralization of the national air monitoring networks, required information to define levels of non-criteria pollutants is not available to the scientific community. Specifically, data on sulfates, nitrates, ammonia, aerosols, fine particulates and other non-criteria pollutants is not being obtained on a scientifically defensible basis nor in a timely fashion.
The existing sites of the former National Air Sampling Network (NASN) are not suitable to serve as a foundation of an experimental network. They are generally incorporated into the States' Implementation Plans and are operated as such. Lacking direct control of these stations, because of decentralization to the Regions, EPA has to rely on voluntary cooperation. The net result is an ill-defined program; changing sampling schemes, not being able to demand additional quality control and non-uniform operation of the network. EPA simply cannot expect State and local agencies to conduct such a program over and above their present monitoring requirements.
While this information was requested in relation to so-called noncriteria pollutants, I am advised that it is generally applicable to pollutants for which standards have been set.
Even if the State monitoring efforts were adequate, we cannot rely on the States to enforce the requirements which result from this legislation. Most States would prefer to make the decisions on coal conversions themselves. They would prefer to determine the extent to which their clean air requirements are modified without Federal interference. They would prefer to enforce emission limitations of their own implementation plans to meet the standards which they have determined they want to meet and not just the primary standards as required by this act.
And certainly the polluters themselves cannot be depended upon either now or in the future as a source of information as to the adequacy of the intermittent control strategy. An April 1973, EPA paper states:
An intermittent control system is a very tenuous mechanism to protect air quality. At TVA, a utility with a reputation for concern for maintaining "acceptable" air quality, the decision to take control action is made by persons whose performance is judged by their capability to produce power at a minimum cost. Their concern for the environment rarely, if ever, is a significant factor in evaluating their "efficiency." The operation at Paradise may at times severely circumscribe the implementation of controls. The outlook for a truly effective use of an intermittent control system by smelters and private utilities is not encouraging.
EPA will have the responsibility and therefore must have the capacity to enforce these strategies.
And the information developed on compliance with intermittent controls must be readily available so that citizens can act under the citizen suit procedure. This would not be possible if EPA relied on the private monitoring efforts of the polluters.
Yet another reason for caution in considering alternative or intermittent control strategies is identified in a statement presented by Mr. Christopher P. Quigley, head, mechanical and structural design division, engineering and construction department, at the American Power Conference.
He said:
Finally, before committing such large investments – to scrubbers – we must assess the probability that utilities may be allowed to institute alternative and more economical methods for achieving SO2 control such as the use of a fuel switching program based on meteorological conditions.
Endorsement of inadequate or unenforceable interim control measures as continuous control strategies could negate ongoing developmental activities.
Our efforts to force technology would be further eroded.
Mr. President, as I have amply indicated, I have serious doubts about the viability of intermittent control strategies, whether or not EPA has the capacity to monitor the ambient impact of emissions from coal conversions. These doubts are summarized in the hearings of the Subcommittee on Environmental Pollution. I ask unanimous consent that annotated excerpts from the subcommittee hearings and files be included in the RECORD at the close of my statement.
It is these doubts that lead me to underscore the fact that no one should view limited application of enforceable strategies related to this legislation as a precedent for future legislation or as a reinterpretation of the requirements of the existing law which bar the application of intermittent control strategies as a substitute for emission limitations.
Mr. President this legislation points out both the significance of the Clean Air Act as well as the frailties of our efforts to protect and improve our environment. The primary reason that we are talking about coal conversion today is because the users of fuel in this country chose the cheap and convenient way to meet clean air requirements. Rather than develop the technology which would make each fuel burning stationary source capable of using domestic fuels, the power industry and others switched to low sulfur foreign fuel.
Most utilities and others have steadfastly refused to participate in any major effort to develop the technology of stack gas control. To the extent that anyone has come forward to demonstrate stack gas control technology, these same utilities have led the effort to discredit that technology and the credibility of those who would propose it.
I do not know whether effective stack gas control technology for major powerplants is available or not. But I do know that unless power plants and other major fuel burning stationary sources are required by law to achieve a high degree of emission reduction from their stacks without regard to the fuel to be used, we will never know whether or not technology is or can be made available.
Our dilemma simply put is as it always has been those who pollute also control the technology of pollution control. For more than 10 years I have participated in the development of legislation to impose an environmental ethic on these polluters. To encourage them to develop the technology of pollution control, I have opposed efforts to determine, by legislative fiat, the choice of technology.
Both the Clean Air Act and the Federal Water Pollution Control Act articulate pollution control requirements as performance standards rather than technological standards. EPA, too, is expected to articulate regulations in terms of performance rather than technology. Those laws demand only that the pollution controls be enforceable on a continuous basis against precisely defined criteria, so that both regulators and the public will know that the performance test is being met.
Thus far, our reliance on performance standards has been only partially adequate. The automobile companies refused to change their technology and so we have catalysts. The utilities refused to develop new technology and so, when foreign oil disappears, we have an energy crisis.
We have come only a small part of the way in developing an environmental ethic. We have not even begun to press our technological capability. We have only stirred the innovative instincts of those in the private sector who profit from pollution control equipment. We have moved only a little toward the best and the cheapest ways to transfer pollution to a recovered resource rather than a discharged waste.
This legislation is but one example of the failure of industry to move aggressively. But the fact that it does not abandon the clean air goals that we set in 1970 and earlier years is an expression of the national commitment of the goals of the Clean Air Act.
Mr. President, there is a typographical error in the conference report. Section 119(c) (1) refers to "expanding substantial sums to permit such source to burn coal;". The word "expanding" should have been "expending".
I move the adoption of the conference report.
Mr. President, I want to commend all the members of the conference committee for the constructive and cooperative roles they played in developing this legislation. I particularly want to say how much I appreciate the efforts of the chairman of the Senate Public Works Committee, the gentleman from West Virginia (Mr. JENNINGS RANDOLPH). He was always there to help bring us to a common ground, to help find the solution to issues that would allow a breakthrough and resolution of problems. His unfailing efforts made this legislation possible. His decades of efforts to make this country aware of the energy problems this Nation faces gave him an unusual ability to merge the need for energy with the need for clean air.
I also want to point out the assistance given by the ranking Republican of the Senate Public Works Committee, the gentleman from Tennessee (Mr. HOWARD BAKER). He has never lost sight of the environmental goals this Nation should pursue, and his efforts in balancing those goals with the energy needs of the country were crucial in achieving the agreements laid out in this legislation. The Nation should know of his constructive role.
This legislation could never have been completed without the masterful guidance of the gentleman from West Virginia (Mr. HARLEY STAGGERS), chairman of the House Commerce Committee. When others might have abandoned the cause he continued to press this legislation along, meeting the arguments of all sides, and adjusting and improving the bill in light of those arguments. In fact, this was the approach of all of the House conferees, as well as those of the Senate. The mutual cooperation of all concerned deserves commendation, and brought about the agreement now before the Senate.
Mr. President, I do not think there is any need to discuss this matter at length. It has been before the Senate in differing forms since last fall, previously as a part of a broader so-called emergency energy bill. It has been agreed to by the Senate basically in legislative form. The conferees have reached agreement, as they did twice previously.
I ask unanimous consent to have material in connection with this matter printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C., March 2, 1973.
Subject, Intermittent Control Systems (ICS).
To, Bernard J. Steigerwald, Director, Office of Air Quality Planning and Standards.
The 53 page Staff Report on Intermittent Control Systems (ICS) submitted to our Division by OAQPS is a lengthy and complex description of a relatively simple process. Major sources of sulfur dioxide emissions are attempting to exploit this process in order to avoid the cost of responsible environmental management based on reduction of emissions through conventional methods of permanent emission control. We are particularly perplexed as to the reasons that the OAQPS report was submitted to our office on February 27, 1973, with a request for comments on or before March 2. Although the concept of ICS is simple, enforcement of ICS is not.
Nevertheless, in the limited time available for review, we have determined that ICS is unacceptable from an enforcement standpoint.
We cannot comment on the report without drawing attention to several basic errors detected in our review. The report states "The effectiveness of ICS is intuitively obvious for short term standards" and "ICS is a superior approach to achieving annual standards as well." Experience tells a different story. ICS was attempted in Washington and Montana with sufficient lack of success to encourage the Puget Sound Agency in Washington, and the State of Montana to adopt direct emission standards, what the OAQPS report calls permanent emission controls (PEC). The failures were attributed chiefly to (1) insufficient curtailment of operations due to inability to forecast adverse meteorological conditions, and (2) information to prove a violation was completely dependent on self-monitoring by the source without an effective means of policing the monitoring stations. Similar experiences have been recorded in New Jersey, Kentucky, and Pennsylvania. Congress recognized the inherent problems of enforcing ambient air quality standards and deleted from the 1970 Clean Air Act any requirements that enforcement of emission regulations be conditioned on violations of ambient standards. That the OAQPS report would claim ICS is superior to PEC for achieving annual standards is indeed surprising. ICS simply is not designed or needed to achieve long term air quality standards.
We feel the OAQPS report misinterpreted the philosophy of the Clean Air Act and its
legislative history with respect to the importance of cost of controls to meet standards. Since national standards must be attained, the cost of a necessary control system is irrelevant to the acceptability of the control technique or regulatory approach utilized to attain the standard, although cost is of course important to the polluter.
New source performance standards (NSPS) provisions within Section 111 of the Clean Air Act did reference cost by defining a standard of performance as "a standard for emissions of air pollutant which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated." (Emphasis added.)
An ICS system such as the one operated by TVA at its Paradise Power Plant obviously is not what Congress had in mind as "the best system of emission reduction", since the Paradise Plant achieved only a 0.13% reduction in annual SO2 emissions in 1972. In addition, since the factors described on page 36 vary from plant to plant, there would be no way to set a national standard uniformly applicable to all new sources in the class, which is the intent of Section 111.
The OAQPS report describes two requirements as necessary and essential prior to approval of any ICS for sulfur dioxide emissions. These are that (1) reasonably available control (of the PEC-type) be applied to limit emissions of other pollutants, and (2) good faith efforts (presumably PEC) must be made to augment ICS leading to a reduction in annual emissions. The report says monitors similar to those employed in an SO2 ICS are not available for particulate matter. This appears to be only a technicality, since continuous tape samplers are available for particulate matter and continuous monitors for other pollutants also are available. If ICS is legally and technically acceptable for SO2, it should be equally acceptable for particulate matter and all other pollutants. Thus, this prerequisite of applicability of ICS exclusively to SO2 cannot be met. The other prerequisite, that of requiring PEC along with ICS, is impractical from a legal standpoint. If ICS is an acceptable method for achieving emission reductions to meet national standards, it would appear that no other type of control legally could be required within the authority of the Clean Air Act. Hence both necessary prerequisites are legally impractical.
The OAQPS report advocates an ICS based on enforcement of ambient standards with fines used as "incentives" to operate the system conscientiously. The large sources for which ICS is recommended can well afford to pay many fines rather than install alternative permanent emission controls. The nature of ICS encourages violations of ambient standards and hardly qualifies as maintenance of the standard. Consider the case of a source which has obtained EPA approval of its operations curtailment procedures and has apparently made good faith efforts not to exceed ambient air quality standards. Assume this source exceeds a standard anyway, and reports this violation to EPA. We do not anticipate the fine a judge would impose for such infraction would be large enough to offer an incentive for control, particularly since the curtailment procedures followed were approved by EPA. (One can afford to pay a lot of $25,000 fines rather than install control systems costing millions.)
The OAQPS report suggests various combinations of PEC and ICS. One alternative (number 8) is to "Require RACT for attaining primary standards but allow ICS for attaining secondary standards." Any type of control acceptable for attaining secondary standards would be acceptable for attaining primary standards. Therefore, option 8 probably is illegal; in any event, it seriously weakens any arguments EPA may have for requiring permanent controls.
It was noted that all air quality monitors about the Paradise Power Plant were in a sector which the plume passed over only 10% of the time. Perhaps it is inappropriate to claim an ICS is effective when 90% of the time the plume impacts in an area where no monitors are placed. By careful placement of monitors, it should be possible to demonstrate that practically any ICS scheme "works".
Enforcement of ICS, as the report admits, can be complex. Fines levied pursuant to violations of ambient air quality standards cannot be used to prevent these standards from being exceeded in the future, as the Act requires. This is an established Agency policy initially presented by DSSE, OEGC, in a 1972 position paper (copy attached). The only alternative is an ICS operated on a daily variance basis, with provisions for revoking the variance should changing meteorological conditions warrant such revocation. This would require the control agency, whether State or Federal, to provide meteorologists on a 24-hour/day basis. Any source using ICS must be required to reduce emissions at the direction of an authorized Agency meteorologist, whether or not the source's meteorologist orders a reduction. There is a distinct legal problem involved in granting daily variances, but it is felt this problem can be resolved.
Additional conditions must be met for ICS to be enforceable. A plume can be extremely narrow (less than 15º) and can cause maximum ground level concentrations at distances exceeding 5 miles. Simply to guarantee that the plume would pass over a monitor would require a "circle" of 24 monitors (assuming a plume angle of 15). To cover a downwind range of 5 miles at 1/2 mile intervals would require 240 monitors. With this enormous number, illegal 1-hour concentrations from "looping" plumes could avoid detection, but such a system probably would serve to validate meteorological predictions. In combination with a suitable air quality display model, the number of monitors could be reduced to perhaps 50, with a substantial percentage of these operated by the Agency to ensure "accuracy" of the remainder. For terrain where models cannot be developed, the full complement of monitors will be required. Any enforceable ICS must provide for extensive record keeping, for both ambient and emission data.
An enforceable ICS could include no overriding factors which would serve to prevent emissions reduction when environmental considerations indicated the necessity of such reduction. For example, TVA stated that electrical load requirements could make curtailment impossible, even though environmental considerations required the curtailment. ASARCO said protection of equipment might necessitate continuing operation to some extent when atmospheric conditions required total shutdown. Production demands could not influence operation of the system as ASARCO implied was the case. At ASARCO the plant manager could, and did, override the meteorologist's determination to curtail operation.
We feel that the economic advantages of ICS will make the system, even with its enforcement requirements, acceptable to large sources. It may be necessary for sources wishing to exploit the advantages of ICS to reimburse a control agency for the additional cost of administering such a system.
It should be noted that our comments relate to a permanent ICS, rather than an interim ICS. If ICS is adopted as an interim measure to be employed until permanent emission controls (acid plants, etc.) can be installed, the Act allows greater discretion by the Administrator with respect to enforceability. Since an interim measure can be whatever "the Administrator determines to
be reasonable", an interim ICS could be designed which would closely approximate the system OAQPS recommends. Additionally, such an interim system would have little impact on State or Federal environmental programs, and would not conscience a fundamental change in Agency policy. We do not wish to appear to advocate such a system, but we do feel the option of an interim ICS differs markedly from permanent ICS in enforceability requirements and may be a workable solution to the problem of control. Essential elements for such an interim system include:
1. Sources must assume liability for any violation of NAAQS. Where there is more than one source, each must be held accountable for any violation. Apportioning of blame is relevant only in a Court's consideration of the amount of a fine, not in the determination of a violation. Sources should be precluded from showing the violation was the fault of others; i.e., there should be some form of absolute liability;
2. Failure to follow the approved operations manual must constitute a violation;
3. Sources must agree that any violation after the first is a continuation of the first and thus no new notice of violation is required and criminal penalties are immediately applicable;
4. Extensive record keeping requirements must provide for retention of data reflecting both air quality measurements and stack emissions.
These requirements reflect measures this Division considers reasonable to make an interim ICS something more than a license to pollute. They are not adequate to ensure the degree of enforceability necessary for a permanent ICS.
If you wish to further discuss the enforceability of ICS, please feel free to contact me.
WILLIAM H. MEGONNELL,
Director, Division of Stationary Source Enforcement.
Attachment.
ENFORCEABILITY OF INTERMITTENT CONTROL SYSTEMS (ICS)
APRIL 21, 1972.
MR. DON R. GOODWIN: Attached is a paper giving our position on enforceability of an ICS as you requested. After careful analysis it is our conclusion that ICS is unenforceable and its efficiency unknown to achieve and maintain the national standards. Mr. Baum in the Office of General Counsel has reviewed this position paper and gives his concurrence.
I believe our position is nearly the same as OAP with the exception of putting a date-certain on the interim use of ICS. In our opinion, a date-certain for installation of permanent controls is essential and no plan should be approved or promulgated that does not contain such.
WILLIAM H. MEGONNELL,
Director, Division of Stationary Source Enforcement.
DIVISION OF STATIONARY SOURCE ENFORCEMENT
OFFICE OF ENFORCEMENT AND GENERAL COUNSEL
Position paper on the acceptability of intermittent control systems for achieving and maintaining the national ambient air quality standards.,
ISSUE
The Office of Air Programs, EPA, has requested the advice of the Office of Enforcement and General Counsel regarding the acceptability of an intermittent control system for meeting the national standards. An intermittent control system (ICS) is defined as any procedure to temporarily curtail emissions through reduced source operations as may be needed to prevent air quality standards from being exceeded.
There are basically two types of intermittent control systems, one based on enforcement of a violation of an ambient air quality standard monitored by ground-level instruments, and one based on enforcement of predetermined emission rates calculated by meteorological forecasting and monitored by in-stack instruments. In both cases since production is curtailed only on a temporary basis it is not likely that total annual emissions will be noticeably reduced, but only that emissions will be reduced during adverse meteorological conditions and increased during favorable meteorological conditions.
BACKGROUND
Section 110 (a) (2) (B) of the Clean Air Act, as amended, provides that the Administrator shall approve an implementation plan if "it includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, including but not limited to, land use and transportation controls ..." Section 110 of the Act does not provide a definition of the meaning of this requirement for an implementation plan. However, the Senate report (91-1196) of the Committee on Public Works on pages 11 and 12 provides some insight on this matter as evidenced by the following comments:
"The establishment alone of ambient air quality standards has little effect on air quality.
Standards are only the reference point for the analysis of factors contributing to air pollution and the imposition of control strategy and tactics. This program is an implementation plan ... The Committee bill would establish certain tools as potential parts of an implementation plan and would require that emission requirements be established by each State for sources of air pollution agents or combinations of such agents in such region and that these emission requirements be monitored and enforceable. In addition to direct emission control, other potential parts of an implementation plan include land use and surface transportation controls ... " (emphasis added)
The Administrator has elaborated on this requirement, as interpreted by EPA at the recent oversight hearings. He stated:
"The problem is that whenever we adopt a control strategy, the purpose of the strategy is to reduce emissions in that particular air quality region so as to meet the ambient air quality standard and what we mean by emission limitations is really emission reduction so that anything which reduces, including the transportation controls that Senator Randolph was concentrating on, anything that reduces the total emissions in that air quality control region so as to meet the air quality standards, as I read the Act, I have to approve as a control strategy that in fact complies with the Act."
In commenting on a question whether EPA would approve a plan with a "closed loop theory" (another term for an intermittent control system), the Administrator stated:... "only if we can become convinced that such a closed loop theory, or any strategy that is adopted, will in fact achieve the ambient air quality standard and can be enforced."
The acceptability of an intermittent control system was evaluated in terms of the requirements of the Act, the quoted statements above.
Question No.1
Is an intermittent control system that provides for enforcement after violation of an ambient air quality standard approvable by EPA?
Answer No.1
No; the purpose of an implementation plan is to prevent a violation of an ambient air quality standard, by the enforcement of specific measures applicable to sources. A plan which on its face provides for enforcement only after a standard has been exceeded does not provide for the achievement and maintenance of the national standards.
Question No. 2
Is an intermittent control system that provides for enforcement on the basic of predetermined emission rates based on meteorological forecasting techniques and monitored by in-stack instruments, approvable by EPA?
Answer No. 2
Although this type of intermittent control might be legally acceptable, it is unenforceable because it is too complex and unmanageable and places an unreasonable burden on EPA and the States. Moreover, its efficacy is uncertain. This type of control strategy is unacceptable as a permanent means of achieving and maintaining the national standards. It is recommended that ICS be restricted for use in certain limited situations discussed below.
DISCUSSION
The discussion is numbered to correspond to the questions and gives the basis of OFGC's opinion.
1. Experience with enforcement of an ambient air quality standard on an intermittent basis has been unsatisfactory. The system has validity only for a point source that is sufficiently remote to be unaffected by emissions from other sources. An extensive ambient monitoring network is required – one that is beyond effective policing by a control agency but rather depends more on the "honor system". We are aware of certain experiences with such systems at large point sources in the States of Washington and Montana. Numerous violations occurred during the period when curtailment systems supposedly were in effect. Penalties were assessed but to no avail. Principal reasons for failure of ICS have been that (1) sources did not curtail operations as often and to the degree needed usually through inability to forecast meteorological conditions requiring curtailment; (2) direct cause-effect relationship for violation of an air quality standard has been difficult to prove, and (3) information to prove a violation was completely dependent on self- monitoring by the source without an effective means of policing the monitoring stations.
After this experience with enforcement of ambient air quality standards, the Puget Sound Agency in Washington and the State of Montana adopted direct emission standards. This experience is not limited to these States. The States of New Jersey, Kentucky and Pennsylvania also experimented with dispersion methods for enforcement of air quality standards for many years and eventually all came to renounce such methods. In 1970 the Congress recognized the problem of enforcing an ambient air quality standard and deleted the requirement that enforcement be conditioned on violations of such standards. We do not consider this type of intermittent control system to be enforceable.
2. An intermittent control system can be refined to provide for enforcement of emission limits. Such a system would have to be developed separately for each affected source. Although, probably due to its complexity, to date no such system has been fully developed. It would appear that it is not possible to develop an ICS system that includes emission limitations before July 31, 1975. Therefore, if EPA were to accept this concept, the development of the control strategy would have to take place beyond the statutory deadline.
Although this is a sufficient basis for rejection of an ICS as a permanent control strategy, there are more important technical and enforcement problems leading to the same conclusion. This type of intermittent control system is much like an emergency episode plan which is required by all States as part of the implementation plan. However, ICS is not backed up by the enforcement power that EPA or the States have during an emergency; that is the power to shut down sources prior to even giving the source an opportunity for a hearing. This power is essential since shut down of source operations is the control strategy in an ICS system and this decision cannot be dependent on the source operator who is primarily concerned with meeting production demands.
Lack of this power by EPA or the States would make an intermittent control system difficult to effectively enforce.
TVA pioneered the effort to develop ICS and has documented its experience in several publications. TVA has many reservations about the technical feasibility of the system and considers it to be an interim method to be used only until permanent emission control techniques can be installed. The following comment was made by TVA in a statement presented at a hearing of the New Mexico Environmental Improvement Board on October 19, 1971:
"At the outset we should like to emphasize the 'interim' aspects of this type program, as in most cases, it should serve only as an interim method for maintaining air quality until such time when a satisfactory SO2 removal process can be installed. Also, it should be emphasized that this type of control program may not be feasible for all plants as its application depends on plant design and operation, regional and local meteorology, local terrain effects, power system size and flexibility, and regional air quality goals." (emphasis added by TVA)
TVA comments in the same paper that they have been working with interim operational controls since 1955 at their Kingston steam plant. TVA goes on to describe a highly sophisticated operational control program at their Paradise steam plant. Several years were spent for detailed studies in developing a system for Paradise since each operational control scheme must be tailor-made.
For the Paradise Steam Plant the nine criteria listed below were developed by TVA for the limited mixing layer model which was found to be critical for this large power plant.
(1) Potential temperature gradient between stack top, 180 m. and 900 m.
(2) Potential temperature gradient between stack top, 180 m. and 1500 m.
(3) Difference between daily minimum and maximum surface temperature.
(4) Maximum daily surface temperature.
(5) Maximum mixing height.
(6) Maximum mixing height and plume centerline height.
(7) Time for mixing height to develop from plume centerline to critical mixing height.
(8) Mean wind speed stack top and 900 m.
(9) Cloud cover.
TVA further states that for some plants more than one model may be necessary and that certain physiographic features, e.g., valley ridge configuration may cause frequent occurrences of high surface concentrations involving one or more plume dispersion models, thus making operational control not feasible.
Emission limitations are determined daily for the Paradise plant. A TVA meteorologist takes daily early morning meteorological measurements, including temperature proflle (by instrumented fixed-wing aircraft) and wind profile (by standard pibal) from surface to 7000 feet.
These data along with input from a 15 station ambient monitoring network plus mobile sensing units are processed by a computer for limiting control. The special computer program provides the limiting SO2 emission rate in terms of megawatt load generation. Even so the system failed on 18 percent of the days to forecast the need for control actions.
It is apparent that an ICS is highly complex and its success (limited as it is) depends on the good faith of the source operator. Neither EPA or the States would have sufficient resources to review this system or to police it if put into effect where the emission limit can vary on a daily basis. Therefore, our position is that ICS must be restricted to an interim measure in certain limited situations which EPA will define.
ICS should be used as an interim measure only when reasonably available technology cannot achieve the primary standard by July 31, 1975. "Interim" is defined as until 1977 for achievement of the primary standards inasmuch as this is the latest date allowed by the Act for achievement of the standards by a permanent enforceable control strategy. Further as regards achievement of secondary standards, "interim" is defined as such "reasonable time", established by OAP, when practicable technology could be developed. The situations where ICS is acceptable as an interim measure should be limited to the following:
(a) Sources for which reasonably available control technology is inadequate.
(b) Point sources that are sufficiently remote to avoid interference to the ICS system from other point sources or background.
(c) Pollutants for which in-stack monitors are available for continuous measurement.
(d) Short-term standards only, i.e., 3-hour secondary standard and 24-hour primary standard.
We are particularly concerned that any ICS system that is approved or promulgated contain a date-certain when permanent controls will be instituted.
FEDERAL ENERGY OFFICE,
Washington, D.C.,
May 20, 1974.
Hon. JENNINGS RANDOLPH,
Chairman,
Committee on Public Works,
U.S. Senate,
Washington, D.C.
DEAR MR. CHAIRMAN: The Energy Supply and Environmental Coordination Act of 1974, H.R. 14368, which is now under consideration by the conferees, contains provisions allowing the Administrator, Federal Energy Administration, to order major fuel burning installations, including electric power plants, to cease burning natural gas or petroleum products as their primary energy source. It also has complementary provisions which amend the Clean Air Act to provide that a plant converting to coal under such an order cannot be prohibited by reason of the application of any air pollution requirement from using coal until January 1, 1979, provided the emissions from the source do not cause certain standards that are specified in the bills to be exceeded.
The provisions of H.R. 14368 will provide a flexible, useful approach to short-term coal conversions; sections 119 (a) and (b) contain provisions applicable through the end of the 1970's.
These short-term conversions, however, are only an emergency measure. Only long-term conversions to coal will permit us to achieve our goals of energy self-sufficiency. As you know, the Administration has submitted to the Congress, by letter dated March 22, a package of amendments, of which the coal conversion provisions are only a part, that are designed to encourage these long-term coal conversions. We urge the Congress to turn their attention to these additional amendments as soon as they complete work on H.R. 14368.
We are also concerned with several specific aspects of the coal conversion provisions of H.R. 14368. We would like to take this opportunity to bring these concerns to your attention and suggest possible alternative language.
Coal conversion provision. Our first concern is with the language of the Senate-passed Bill which provides that a suspension under Section 119(b) (1) is conditioned on the source being "located in an air quality control region in which applicable National primary ambient air quality standards are not being exceeded." This language would unnecessarily impair our ability to convert plants to coal.
A number of air quality control regions cover large geographic areas. The air quality control regions may have a metropolitan area combined with a large rural area. Levels exceeding primary ambient air quality standards are generally found in the densely populated areas. However, a number of power plants that are candidates for conversion are located in suburban or rural portions of regions with a major metropolitan center. Thus, it is likely that a number of non-urban power plants may be excellent candidates for conversion (based on a plant-by-plant analysis of predicted ground-level pollutant concentrations), yet be blocked from conversion because primary ambient air quality standards are being exceeded many miles away. In many such cases, the converted source would not contribute to any violation of the primary ambient air quality standards being exceeded in the urban area.
Accordingly, we believe that the test for conversions should be solely on a plant-by-plant basis. The priority classification of an air quality control region should not be a constraint. The latest data available to EPA show that during 1972 primary ambient air quality standards for sulfur dioxide were exceeded in 13 to 15 air quality control regions. The primary ambient air quality standard for total suspended particulates was exceeded in 102 air quality control regions during that same period. There are 247 air quality control regions in the country.
A preliminary analysis of the situation shows that 8 of 10 plants analyzed by EPA and FEO as candidates for long-term conversion would not cause to be exceeded or exceed the primary ambient air quality standards, but would not be candidates for conversion under the Senate provision because of the air quality control region in which they are located. This analysis is based on the most recent published data on the ranking of AQCR's. A situation that vividly illustrates the point includes the Morgantown and Chalk Point plants in Maryland which emit pollutants into the same air shed yet are situated in different air quality control regions. Under the formula of the Senate bill, one could be converted, while the other one could not, despite the fact that both plants could meet primary standards.
Further, the addition of the air quality control region test would insert further uncertainties and factors for dispute into the process of identifying plants that are candidates for conversion. Regional priority classifications are based on imprecise procedures. We understand that air quality monitoring data or diffusion modeling calculations may serve as the basis for a priority classification determination. Often the classification for an air quality control region is based on monitoring results from only a few, or even only one, monitor operated by Federal, state or local agencies. EPA quality control studies of monitoring programs have revealed deficiencies in both accuracy and consistency, and a significant margin of error from instrument malfunctions as well as inadequate procedures.
Finally, the data used to rank air quality control regions are generally up to a year or more out of date at the time of the reclassification. Such data and the resulting regional rankings are nearly functionally irrelevant when emissions from a converted source will not in fact occur for some time. Some plants ordered to convert may not actually begin to burn coal for two to four years, which is the time needed to open new mines.
Accordingly, the above reasons clearly indicate to us that the proper approach is to make determinations on a plant-by-plant basis. Such a procedure should rely on state-of-the-art diffusion models and assessments of existing, relevant air monitoring data.
The House-passed bill has no language limiting the provisions of section 119(b) to regions where primary air quality standards are not being exceeded. We recommend conforming the Senate bill to the House-passed bill by deleting from section 2 of the Senate-passed bill the following words, appearing in the first sentence of section 119 (b) (1) of the Clean Air Act:
"and which is located in an air quality control region in which applicable national primary ambient air quality standards are not being exceeded."
If the conferees wish to make it absolutely clear that a stationary source may not cause or contribute to concentrations of air pollutants in excess of national primary ambient air quality standards, the first sentence of section 119(b) (1) can be further amended by adding at the end of that sentence: "subject to the provisions of subparagraph (b) (2)(A)."
A conforming amendment is needed in subsection 8(a) of the Senate-passed bill, which deals with FEA-ordered coal conversions. The second sentence of that subsection should be amended to delete the following phrase: "the installation is located in a region described in the first sentence of section 119(b) (1)."
Plant equipment for burning coal. Section 8(a) of the Senate-passed bill and section 10(a) of the House-passed bill provide that conversions can be ordered only for plants which on the date of enactment have "the capability and necessary plant equipment to burn coal". We understand that it is the intent of the Congress to permit conversions to be ordered where necessary plant equipment is reasonably available and that it is not necessary for a plant to have all the equipment already in place. To avoid any uncertainty, however, we urge the conferees to state this intent in the conference report as was done in the House Report on page 28.
Energy information reporting. The House bill contains, in Section 11, provisions authorizing the Federal Energy Administrator to collect energy information he determines is necessary to assist in the formulation of energy policy or to carry out the purposes of the Act or the Emergency Petroleum Allocation Act.
The Senate Bill contains no such provision.
As you know, the recently enacted FEA legislation now provides the Administrator with broad authority, including subpoena powers, to gather energy information. In view of the enactment of the FEA bill, we strongly support the approach taken by the Senate of deleting Section 11. This will avoid duplication, confusion and conflict with the information gathering sections of the FEA Act.
In particular, subsection 11(e) of the House version is particularly objectionable because it would provide the authority to the Administrator to obtain information directly from other agencies regardless of existing statutes prohibiting such transfer or of the pledge of confidentiality under which it was obtained. Law enforcement and independent regulatory agencies would be required, for example, to make information available which was obtained pursuant to active law enforcement investigations. Other bureaus and agencies who gather statistics on a voluntary basis but with a pledge of confidentiality to the respondent would also be required to make available individual respondent reports, thereby frustrating their ability to collect such data in the future.
There are two aspects of Section 11 which we understand are being considered for inclusion in the conference bill because they have no exact counterparts in the FEA legislation.
Subsection (d) (2) would require quarterly reports setting out a variety of types of energy information. We are very concerned that preparation of such reports would require misdirection of FEA's limited resources. Insofar as is practicable, FEA will publish data in report form, but we would prefer not to be required to prepare such a wide variety of reports, particularly on a quarterly basis.
We are also concerned that this provision might be construed to require publication of data that might be considered proprietary by the persons supplying the data to FEA; for example, inventory data broken down by refiners, and refinery yields by product. Such a provision would be inconsistent with the provisions of section 11(f) of the House bill, which provides confidential treatment for trade secrets and confidential commercial and proprietary data, and the similar provisions of the Emergency Petroleum Allocation Act.
The second provision under consideration, we understand, is one which would provide that the presently applicable restrictions of 18 U.S.C. 1905 against divulging trade secrets and other confidential trade information would not apply to information supplied to congressional committees at their request. We are somewhat concerned that such a provision would impair FEA's capacity to acquire proprietary data necessary for useful statistical information. Our data collection effort depends for its success on having the widest possible sampling. We therefore recommend against inclusion of such a provision. We will, of course, continue to provide Congressional committees with the widest possible range of information, as we have in the past.
Enforcement and penalty provisions. The enforcement provisions of section 8 of the Senate-passed bill appear to contain some technical shortcoming which should be clarified to accomplish the intent of the Congress.
We recommend amending section 8(d) (4) to make it clear that the Administrator, FEA, and not just his delegates, can request the Attorney General to seek injunctive relief. We suggest the following language in lieu of the present section 8(d) (4) : "The Administrator, Federal Energy Administration, or his delegate, may request the Attorney General to bring an action in the appropriate district court of the United States to enjoin acts or practices constituting a violation of this section or any rule, regulation or order issued pursuant to this section, and upon a proper showing, a temporary restraining order or a preliminary or permanent injunction shall be granted without bond. Any such court may also issue mandatory injunctions commanding any person to comply with this section or any such rule, regulation or order issued pursuant to this section."
We also recommend an amendment to subsection 8(e) to make it clear that actions may be taken against offenders after June 30, 1975, for acts or omissions occurring before that date. As now drafted, the section could be construed to require formal administrative proceedings actually to have begun on June 30; this requirement could encourage violations of the Act in the weeks immediately prior to June 30.
We recommend adopting the following language on this subject:
"(e) The authority to promulgate and amend regulations and to issue any order under this section expires at midnight on June 30, 1975 but such expiration shall not affect any action or pending proceedings, civil or criminal, not finally determined on such date, nor any action or proceeding based upon any act committed prior to midnight June 30,1975."
Reference to additional legislation in conference report. Let me reiterate my concern that the pending amendments to the Clean Air Act, while helpful if modified substantially, still do not represent long-term solutions to our coal use problems. They provide only limited, short-term assistance and do not correct several major, and I believe, unwarranted provisions or interpretations of the Clean Air Act.
We understand that the conferees are considering a statement in their report that H. R. 14368 deals with only a limited number of topics of extreme urgency and that the committees will be addressing themselves in the near future to other possible amendments, including amendments designed to deal with energy shortages and with insuring the best use of scarce low-sulfur fuels.
We strongly support including such a commitment in the conference report. There are several items included in both House and Senate versions of H.R. 14368 which are not a subject of the conference but which we believe should be discussed now and again during hearings held on additional amendments to the Clean Air Act. Specifically, we are concerned with the provisions of section 119(b) (2) (B) that require that plants scheduled to convert must be committed to a compliance schedule that provides a date by which the source must enter into contracts for low sulfur coal or scrubbers. This provision is coupled with section 119(b) (2) (C) that requires plants granted suspensions to come into compliance with emission regulations in a state implementation plan that are in effect on the date of enactment of these amendments.
The requirement concerning contracts for low sulfur fuel or scrubbers would effectively preclude the use of intermittent control systems as an alternative method for achieving compliance. If the Administration's proposal to permit use of intermittent control systems, contained in our March 22 amendments to the Clean Air Act, is adopted, this section of H.R. 14368 would have to be amended to conform with it.
The related requirement concerning compliance with state implementation plan emission limitations in effect as of the date of enactment of H.R. 14368, similarly is inconsistent with the Administration's proposal to encourage revision of state implementation plans to avoid "overkill" – the situation in which state implementation plans require the burning of clean fuels in areas where air quality does not necessitate such fuels. If state implementation plans are in fact revised by the states in the interim to avoid overkill, plants should be required to come into compliance at the conclusion of their conversion orders with these revised state plans, not the plans in effect when H.R. 14368 is enacted.
We also strongly believe that the June 30, 1975 deadline for ordering conversions is unduly restrictive. The time-consuming procedure of air quality analysis and compliance plan revisions will be a deterrent to the number of orders FEA can effectively issue by the June 30, 1975 deadline. This deadline should be deleted.
We are interested in the conversion of power plants to coal from natural gas or petroleum products for the purpose of reducing U.S. dependence on foreign fuels. This strategy is designed to assist in achieving the Nation's long-run self-sufficiency goals. Only long-term conversions should be encouraged where secure long-term coal contracts can be established.
We believe there is a serious need to evaluate emission limitations that are designed to achieve ambient air quality cleaner than that required by the health-related standards. EPA's Clean Fuels Policy is essentially addressing this problem. However, this voluntary program has been less than completely successful. As long as overly stringent regulations remain on the books, utilities will not be able to enter long-term coal contracts because of the uncertainty of future emission limitation revisions.
Accordingly, the Federal Energy Office believes that further discussion is needed of several reasonable alternatives:
(1) Require the states to reconsider the emission regulations when a candidate for conversion is ordered to develop a compliance plan, or
(2) Extend the compliance deadline beyond 1979 – to a time when resources are reasonably available to attain the welfare-related ambient standard.
Such further modifications to the Clean Air Act will prove necessary we believe to provide the incentive to the mine owner and operator to invest in new coal ventures. Ten to twenty years are needed to assure an economical mine – not just a few years.
I hope these comments have been useful and I look forward to continued cooperation with your Committee.
Sincerely,
JOHN C. SAWHILL,
Administrator.
Subject: Proposed Use Control Systems and Secondary Standards.
Mr. ROBERT NELIGAN,
Office of Air Quality Planning and Standards,
Environmental Protection Agency,
Research Triangle Park, N.C.
DEAR MR. NELIGAN: Thank you for the opportunity to comment on the proposed changes as published in the Federal Register, Vol. 38, No. 178, Friday, September 14, 1973.
EPA's purposed limitation on the use of supplemental control strategies show careful analysis. We agree that it is essential to require the source to reimburse the control agency for the cost of added monitoring and to take responsibility for air quality violations as well as the reliability of the supplemental controls as you have proposed.
We oppose the use of supplemental control systems to achieve ambient SO2 standards without the requirement of at least 90% sulfur removal. We believe there should be no delay beyond the date presently established by EPA in reducing the total quantity of sulfur emitted to the air. See attached staff memoranda. We also urge the immediate application of curtailment to protect public health when primary standards are exceeded.
The evidence presented in the Swedish acid rain and the CHESS studies support the need to remove at least 90% of the sulfur from the emissions. It is important to provide early relief for those individuals who live downwind of a large point source of SO2.
If supplementary control systems should be adopted we recommend these changes
1. Add the following under 40 CPR, Part 51:
The use of supplemental controls shall be implemented at the earliest practical date to protect public health in places where primary standards for SO2 are exceeded.
2. Ninety percent of the sulfur shall be removed from the emissions of smelter and power plants by the earliest practical date. The use of curtailment of emissions in excess of 90% shall be required if such curtailment is necessary to avoid exceeding SO2 standards.
3. The installation of SO2 control equipment for large point sources located in urban areas shall be given priority. Eliminate the following under Supplementary Control Systems of 40 CPR, Part 51, column 2, page 25699:
Constant emission limitation techniques capable of achieving this degree of emission reduction are not available for every smelter. The alternatives in most cases will be either to close these facilities (or drastically curtail production) or apply supplementary control systems. Weak gas stream scrubbing and process changes may become available for application to many nonferrous smelters in the future.
The same stack-gas technology which EPA considers "adequately demonstrated" for electric generating plants can be applied to weak gas streams (e.g. from reverb furnaces) in smelters. And the top priority for this should be those power plants and smelters located in urban areas.
Thank you for your careful review of these comments and the enclosed memo.
Sincerely yours,
A. R. DAMMKOEHLER,
Air Pollution Control Officer.
OCTOBER 12, 1973.
To: Air Pollution Control Officer.
From: Chief – Engineering and Air Pollution
Engineer: Roberts.
Subject: Use of Supplementary Control Systems and Implementation of Secondary Standards Proposed by E.P.A.
The long-term use of supplementary control systems for large point sources of SO2 such as curtailment or increased stack height to meet ground level ambient air concentrations are undesirable unless accompanied by at least 90% sulfur removal for the following reasons:
1. Supplementary Control System by itself will not control the total emissions of sulfur oxides even though ambient concentrations are below those set by regulation. The CHESS and Swedish acid rain studies, document the need to limit the total quantity of SO2 which is emitted to the air at an early date.
2. The experience of this Agency with curtailment of the Tacoma Smelter is not satisfactory as is implied in the Federal Register. The attached chart showing the number of violations and public complaints indicate that there has been a large drop in complaints but there is need for added relief. The real life implementation of SO2 curtailment by the Tacoma Smelter has produced some 200 public complaints in 1973 up to August 31. Some of the limitations proposed by E.P.A. will limit the number of violations and complaints and should be added the condition of the variance granted ASARCO. The use of curtailment with the Federal standards which are less stringent than those of our Agency would result in a higher number of SO2 insults to the public. We still receive large numbers of SO2 complaints while ambient readings do not exceed the Federal standards.
3. ASARCO has reported that the use of curtailment by the Tacoma Smelter has caused a 30% loss in production. The early installation of effective controls would reduce the loss of power and copper that will occur if curtailment is used as the primary means of meeting SO2 standards.
4. The technology to achieve 90% SO2 control is available. The technology to control weak SO2 streams coming from power plants is "adequately demonstrated" for purposes of Section III of the Clean Air Act. This safer technology can be applied to weak SO2 streams coming from smelter roasters and reverberatory furnaces.
5. Curtailment programs are difficult to monitor and enforce.
A. ASARCO has recently successfully challenged this Agency's monitoring of * * * process. The State of Washington Pollution Control * * * recently ruled that a violation cannot be issued unless the SO2 ruling is 10% above the value specified in the regulation. On this basis six violations in 1973 were voided.
B. It would be possible to operate a curtailment system with very few violations yet have a large number of SO2 insults that affect public health and cause the large number of complaints that we still receive. There is a strong tendency to reduce curtailment if the point source plume does not touch the air monitoring station. Requiring the source to pay the cost of additional monitoring is the only practical way to protect the public from SO2 and sulfate insults.
C. It is impossible to model the SO2 (and/ or sulfate) insults that occur due to wind changes, the break-up of an inversion or the fugitive low level omissions. The only sure way to reduce these insults is to combine 90% control and curtailment.
6. Once supplementary controls are accepted as a means of meeting ambient air SO2 standards there will be pressure to continue such controls indefinitely.
JOHN W. ROBERTS.
THE LIBRARY OF CONGRESS,
CONGRESSIONAL RESEARCH SERVICE,
Washington, D.C.
May 6, 1974.
To: Senate Subcommittee on Environmental Pollution.
Attention: Mr. Karl Braithwaite.
From: Maria H. Grimes, Analyst. Environmental Policy Division.
Subject: Supplemental Control Strategies.
The following comments summarize information obtained on certain aspects of the proposed supplementary control strategies which you selected for further analysis during our meeting on April 18. These included: state-of-the-art and reliability of SCS methods and technology; vulnerability of the system; costs; and enforceability.
To complement the information provided by EPA in its April, 1973 briefing paper, proposed regulations regarding use of intermittent control systems of September 14, 1973, and its hearings on the adequacy of SO2 control technology in October, 1973, as well as the comments submitted to EPA by Natural Resources Defense Council (attached), I contacted the following persons:
Mr. John W. Frey, Air Quality Branch, TVA, Muscle Shoals, Alabama;
Mr. Robert Foster, Div. of Air Pollution Control, State of Tennessee;
Mr. Frank Dannkoehler, Air Pollution Control Officer, Puget Sound Air Pollution Control Agency, Seattle, Washington;
Mr. Franchot Buhler, National League of Cities, Washington, D.C.
The following observations result from these interviews:
ADEQUATE AND RELIABLE SCS TECHNOLOGY AND METHODOLOGY IS AVAILABLE
There seemed to be general agreement that adequate and reliable technology is now available and components from several vendors are usually selected to make up an SCS system. TVA estimates that a system for one of their plants would require 16-18 months to become fully operational, including field studies, design state, and installation of equipment all of which can proceed simultaneously. The process requires minimal downtime and there is little malfunction.
Differences of opinion arise as to operational methods. EPA cites TVA's Paradise plant system as an example of the feasibility of the system. The discussion with Mr. Frey yielded the information, however, that the field instruments are not individually checked for calibration and performance, since the employee anticipated to do this work has not yet become available. The instruments are monitored by remote control, the resulting data being processed by computer.
One employee on an early day-time shift monitors the computer consoles and interprets the data for action as needed. (The need for onsite interpretation of meteorological data appears to vary with the individual location. Paradise requires only low-level interpretation, but the system installed for one section of the Widows Creek plant calls for considerable interpretive skills.)
At Paradise, no monitoring takes place by a trained meteorologist outside of his working hours which end in mid-afternoon. Yet, Mr. Dannkoehler stated that all SCS systems now available require regular servicing of all instruments (calibration, reading, evaluation) in the field, and that the system, to be reliable, must be operated on a 24-hour basis. ASARCO's system and the instruments of the Puget Sound region are operated in this manner.
In a second, unsolicited conversation, Mr. Frey modified his previous statements. He did not change his original assertion that TVA SDEL program is being executed both on the basis of previous experiences and the use of new data developed in the course of operation, and that it is still in a state of flux, is not complete, and is still experimental in some of the stages. He did state, however, that TVA's goal is to have continuous meteorological surveillance in the field to interpret and make changes to improve computer accuracy. He apparently is not content to rely solely on the currently used indirect monitoring and remote readouts. Nevertheless, he reiterated that the Paradise operation demonstrates that ambient standards can be met and maintained with SCS, and that the system can be used as an "ongoing sustaining operation with reliable capability." He emphasized that the full-scale program projected for TVA would involve a 24-hour, 3-shift, 7-day workweek operation, anticipated for June or September of this year at the Widows Creek plant. Even now, field instruments apparently are being maintained by TVA personnel not directly related to the SDEL program as part of the regular service schedule for all TVA instrumentation.
COSTS FOR RELIABLE AND ENFORCEABLE OPERATION OF AN SCS PROGRAM ARE CONSIDERABLE
EPA estimates that installation costs for an SCS system will average $300,000, and operational expenses $100,000 a year. A tall stack about 1,000 ft. high, to complement the system would cost $6 million, but require almost no upkeep. TVA's figures for its SDEL technique is about $100 million for installation and some $17 million annually for operation. Mr. Foster's estimate for a large power plant needing 10-12 monitoring sites is $2 million. These costs are about 10% of expenses which would have to be incurred for sulfur oxide scrubbers.
The real costs of using SCS are much higher. According to Mr. Dannkoehler and EPA, ASARCO sustained a 35% loss of production last year as a result of necessary curtailments of operations. While industries in some areas may avail themselves of State or local weather services and meteorological findings to compute and predict adverse conditions, additional funds may be needed for weather balloons and other measuring instruments where such services are not furnished by State or local weather bureaus.
Very significant additional costs, according to the State spokesmen and Mr. Buhler will have to be assumed by the tax payers to provide the necessary instrumentation and personnel to monitor and enforce SCS systems for the States' resources are already taxed to the limit and cannot assume additional surveillance responsibilities. Tennessee is considering a request for a Federal grant of about $100,000 a year for this purpose. Mr. Foster anticipates that, by following EPA criteria of eligibility, 5 or 6 sources would be allowed to use SCS and could be monitored for this amount. Puget Sound 6 or 7 persons are now detailed to monitor one ASARCO plant, using 5 of its 10 stations. About $200,000 a year is needed for this process which includes complex verification procedures to furnish solid proof of violations. It is complicated by obsolete instrumentation. Mr. Dannkoehler's estimate for State manpower needs to monitor all anticipated sources permitted to use SCS was around $400,000 a year. In addition, his agency would require a minimum of $7,080,000 to purchase new and more reliable equipment, since no Federal grants for this purpose have been received since 1968.
ENFORCEMENT OF AMBIENT STANDARDS IS DEFICIENT AND DIFFICULT – SCS SYSTEMS ARE TOO EASILY MANIPULATED TO AVOID DETECTION OF
VIOLATIONS
EPA's criteria for allowing the use of SCS systems is that they be measurable and enforceable. TVA claims that the concerned States have free access to all plants and data, and that all necessary information is made available. Tennessee reserves the option for its personnel to enter a source without prior announcement, a requirement which antedates filing of the State implementation plan. The Puget Sound agency uses its own independent instrumentation to verify data submitted by ASARCO.
Confirmation of accuracy, and thus the enforcement of ambient standards are complicated, however:
Mr. Frey said that TVA is still negotiating with the States involved since the latter have not yet decided on a course of action to supervise the system and enforce the standards. Tennessee does give prior warning of a forthcoming inspection unless there is reason to believe that a source is deliberately violating the standard. In that event, a State monitoring instrument is moved into the vicinity of the plant's instrument to verify its data. Sources are required to demonstrate that they have both the expertise and the equipment to comply with regulations; however, expertise is acknowledged to be gained largely through on-the-job training, and Mr. Foster's opinion was that violations might be permitted on a sliding scale, with the system becoming effective over a period of time. Since his agency's primary stated objective is to protect public health, it is concerned with the results, not the internal mechanisms of a system. Sources are responsible for all equipment, including the necessary weather balloons.
Mr. Dannkoehler admits to considerable difficulties in proving violations. In order to disprove ASARCO's data obtained with up-to-date equipment, it must monitor the source's operations independently and, according to State regulations, furnish proof within a plus-minus 10% margin of error. The final strip chart – the final chart of calculations which is the result of preceding measurements and computations – is the required proof.
Puget Sound personnel has become experienced and expert at providing justifiable court data, but ASARCO employees also have become expert at avoiding or bypassing State monitoring stations. ASARCO also was to comply with a State-established inspection protocol which, however, it has yet to implement.
At the start, every citation of a violation was appealed, resulting in cumbersome, time-consuming procedures. The Appeals Court has since defined certain areas of controversy such as reliability of readings, dump cycle arguments (a smelter's purging period of 5-6 minutes at a time when instruments are not read) for which precedent-making judgments have been rendered. As a result, appeals have diminished, but violations have not decreased as a result of the increased number of uncontested fines paid. (see attached documents).
In the case of multiple sources in a region, Mr. Dannkoehler felt that a separate set of instruments would have to be used for each source to prove a violation, for polluters could claim that the readings did not apply to them. Mr. Foster would use a model allocating a certain percentage of emissions to each source located in fairly close proximity to another.
SUPPLEMENTARY CONTROL STRATEGIES DO NOT ASSURE PROTECTION OF PUBLIC HEALTH
Until definitive proof is available that sulfates, acid rain and other residual pollutants resulting from tall stack emissions of SO2 into the atmosphere are not harmful to public health, there appeared to be general agreement that SCS should be used solely as an interim measure in the context of the EPA proposal, i.e. for existing installations only, and as temporary, immediate relief to the public while permanent controls are perfected. (Admittedly, the interim aspect may complicate enforcement and act as a disincentive to commit capital for installation and operation of SCS.) The Puget Sound region is on record as opposing the use of SCS without the requirement of at least 90% SO2 removal. Emission controls of large sources, as soon as their effectiveness has been demonstrated, are acknowledged to be the only permanent answer for the protection of public health. However, there seems to be general agreement that not only is control technology still deficient, but that delays in deliveries of equipment already contracted for due to shortages of materials and metals will make achievement of standards within the mandated time limits unfeasible.
Other issues, such as the legality of using SCS as an abatement strategy, are not covered in this memorandum. They are dealt with in the NRDC comments, a copy of which is attached.
STATE AIR POLLUTION IMPLEMENTATION PLAN PROGRESS REPORT, JUNE 30 TO DECEMBER 31, 1973
Prepared by Office of Air Quality Planning and Standards, Office of Air and Water Programs, U.S. Environmental Protection Agency, Research, Triangle Park, N.C., and Office of Enforcement and General Counsel, U.S. Environmental Protection Agency, Washington, D.C.
AIR QUALITY AND EMISSION DATA
Air Quality Overview
Suspended particulates remain a problem in spite of encouraging evidence of downward trends. One-hundred-thirty-eight AQCRs reported at least one station still above a primary standard (24-hour or annual) in 1972. Thirty-four AQCRs have reported no annual 1972 particulate data. Primary 24-hour or annual sulfur dioxide standards were exceeded at one or more locations in only 19 of 162 AQCRs reporting 1972 data.
Data on oxidants and carbon monoxide are quite sparse, but if the limited results are indicative, substantial problems exist with these two pollutants. The primary oxidant standard was exceeded in 21 of 38 AQCRs reporting at least one quarter's data. The primary carbon monoxide standards were exceded in 42 of 43 AQCRs reporting in 1972.
Adequacy of Air Quality Reporting and Processing
At the conclusion of the fourth quarter of calendar year 1973, data for the second quarter of CY 1973 reaching the Storage and Retrieval of Aerometric Data (SAROAD) system represents less than 60 percent of the total stations reporting in CY 1972. Consequently, an attempt to characterize nationwide air quality status or trends using the incomplete 1973 data presently in hand would be premature and misleading. Four quarters of 1973 data are expected to be in hand for summarization in the next SIP progress report.
Adequacy of air quality monitoring networks
The number of air sampling stations by pollutant-type reporting data as required in approved SIPS varies from 60 to 200 percent of requirements. However, when the required reporting stations are related to the SIP requirement the percentage by pollutant-type varies from 39 to 84 percent.
Emission data reporting and processing
Emission data are continually changing due to additions and corrections (e.g., updated emission factors, discovery of new sources, new estimates of emissions from a source, installation of control equipment, shutdown and start up of sources). Consequently, trends due to control activities are characterized as inconclusive. However, the 1972 data based on the National Emission Data System (NEDS) show significantly higher carbon monoxide and lower particulate emission from industrial processes when compared to the 1971 data. NEDS shows more carbon monoxide for nearly every industrial category. It could be concluded either that NEDS has not adequately accounted for carbon monoxide controls or that the methodology used in 1971 overestimated the extent of control. Another possibility, of course, is that sources of carbon monoxide were inadvertently missed in earlier inventories.
Industrial process particulate emissions compare favorably from 1971 to 1972, except for the mineral products industry, which in 1972 had much lower emissions. As in the case of carbon monoxide emissions, the accountability of control measures for this category could cause this discrepancy.
PLAN REVISION MANAGEMENT SYSTEM
Overview
The Plan Revision Management System (PMRS) analysis has been expanded from the original 17 AQCRs to 67 AQCRs. In addition, the PRMS has been expanded from analysis in relationship to annual particulate matter and sulfur dioxide standards to analysis of all current national ambient air quality standards, except that for nitrogen dioxide.
The Office of Air Quality Planning and Standards provides each Regional Office with detailed copies of the individual PRMS site reviews for each monitoring site identified as having a "possible deficiency" within 60 days of the end of each semiannual reporting period. Data review actions have been initiated by the Regional Offices to determine causes of the identified deficiencies in the first 17 AQCRs within the PRMS.
Two important facts are germane in considering results of these actions. First, because the system considers the applicable State and Federal regulations, transportation control plans, and the Federal Motor Vehicle Control Program in the development of the projected air quality trend, an AQCR will not be "flagged" even though the air quality is considerably above the applicable air quality standards, so long as the observed air quality is following the downward trend predicted on the basis of enforcement of regulations and compliance schedules. Second, the PRMS analyzes only the air quality data currently contained in the SAROAD. Therefore, in a number of cases, because of the incomplete implementation of the quarterly reporting requirements for air quality data, there may be an 8- to 10-month time lag in the currentness of the data.
However, as more States begin to implement the reporting requirements, the system will be able to provide an up-to-date analysis of any specific AQCR and its progress toward attainment of the standards.
Results of analysis
The current PRMS analysis has identified approximately the same percentage of possible deficiencies (i.e., an air sampling site where trends in air quality indicate that NAAQS will not be reached as of the specified attainment date) in 10 of the original 17 AQCRs as were identified in the first analysis. Seven AQCRs did not have an increased number of monitoring sites available for review and had the same or an increased percentage of possible deficiencies.
A review of the other 50 AQCRs analyzed showed adequate progress being made toward attainment of air quality standards, with the exception of a few localized problems. The AQCRs that did not follow this general trend were principally divided into two groups: (1) those within limited data base and (2) those with increasing ambient concentrations. The AQCRS with a limited data base had fewer than the minimum number of sites required by the SIP and/or a minimal quantity of available data from each site.
For particulate matter, 8 of the 67 AQCRs had a limited data base; for sulfur dioxide, 32 of the 67 AQCRs had a limited data base. Similarly, 14 of 25 AQCRs that were required to have carbon monoxide instruments had less than the minimum number of sites required and 18 of 36 AQCRs that were required to have oxidant instruments had less than the minimum number of sites required reporting sufficient data for analysis.
Possible deficiencies associated with particulate matter were noted in 51 of the 67 AQCRs analyzed. Some of these deficiencies appear to be local in nature since the remainder of the AQCR appears to be progressing as predicted.
Possible deficiencies were associated with carbon monoxide in 13 AQCRs and with oxidant in 8. However, 29 AQCRs have values that are currently above the national standards for carbon monoxide (although only 25 of the 67 AQCRs required CO monitors, an additional 4 AQCRs had data, thus, the 29), and 19 of the 36 AQCR required to have oxidant monitors have values above the standard. Again, it should be noted that almost 50 percent of the AQCRs that were required to have carbon monoxide and oxidant monitors had less than the minimum number of sites with sufficient data for analysis. Additionally, some AQCRs have a carbon monoxide instrument where no current SIP requirement exists and have recorded values in excess of the standard.
In general, the PRMS analysis indicates that in most AQCRs adequate progress appears to be being made for most sites; however, no relaxation of any of the current ongoing programs should take place. The possible deficiencies should be reviewed to determine their cause and possible solution for that area of the AQCR where the deficiency was noted. The status of sulfur dioxide, carbon monoxide and oxidant will require additional data to really assess the situation and determine if possible deficiencies exist.
SUPPLEMENTARY CONTROL SYSTEMS
A major issue related to implementation plans involves the question of supplementary control systems (SCS) as an acceptable control strategy. SCS involve both the temporal variation of emission rate, based on expected meteorological conditions, to avoid high ground-level concentrations during periods of poor dispersion potential, and the use of tall stacks to lower ground-level impact. Early in September 1973, EPA proposed regulations and solicited public comment on them.
SCS are considered less desirable than constant emission limitations and, as proposed, will be allowed only for large, remote existing sources of sulfur dioxide and only where constant emission reduction systems are not available to the source. Generally this restricts their use to nonferrous smelters (after use of acid plant control systems) and rural coal-fired power plants that will not be able to install stack gas cleaning equipment nor find low-sulfur coal. The regulations also proposed many requirements for the design and operation of SCS.
Fourth, it should also be noted that many AQCRs have less than the minimum number of sites required in the SIP reporting sufficient data for which any analysis can be performed. This is especially true for sulfur dioxide, carbon monoxide and oxidants. Thus, for many of the 67 AQCRs, the analysis for those pollutants may not be conclusive until at least the minimum number of required sites are reporting enough data for analysis and review. Consideration should be given to the number of sites for which the analysis was performed compared to the minimum number of sites required by the SIP before any conclusions are made concerning the progress an AQCR is making. Many AQCRs that at this time appear to be making adequate progress based on less than the minimum number of monitors required may have severe SIP deficiencies when the data from all the sites are available in sufficient quantity for review.
A comparison of the initial analysis for the 17 AQCRs to the current analysis indicates that, in general, States are submitting more aerometric data, thus providing a larger air quality data base for review.
In some cases, the increased data base allowed for the identification of some additional possible deficiencies that were not evident in the initial analysis.
The results from the current analysis of 67 AQCRs indicated four principal types of problems: (1) limited data base, (2) localized problem, (3) general problem, and (4) increasing pollutant concentrations.
The AQCRs with a limited data base resulted from having less than the minimum number of sites required by the SIP. This was not a major problem for particulate matter as only 8 of the 67 AQCRs had less than the minimum number of sites currently reporting sufficient data for analysis. However, this was not the case for sulfur dioxide; 32 of the 67 AQCRs had less than the minimum number of monitoring sites reporting sufficient data for analysis. Similarly, 14 of the 25 AQCRs that were required to have carbon monoxide instruments had less than the minimum number of sites required, and 18 of the 36 AQCRs that were required to have oxidant instruments had less than the minimum number of sites required reporting sufficient data for analysis.
Possible deficiencies associated with total suspended particulates were noted in 51 of the 67 AQCRs analyzed. Some of these deficiencies appear to be local in nature since the remainder of the AQCR appears to be progressing as predicted. In addition, 65 of the 67 AQCRs have patriculate concentrations above the national ambient air quality standard.
Only 5 of the 67 AQCRs had possible deficiencies relative to sulfur dioxide, and 9 AQCRs had values above the standards. As mentioned previously, however, almost 50 percent of the AQCRs analyzed had less than the minimum number of sites required, and any general conclusions on the status of sulfur dioxide would not be completely accurate at this time.
Possible carbon monoxide deficiencies were noted in 13 AQCRs and oxidant deficiencies in 8. However, 29 of the AQCRs have values that are currently above the national standards for carbon monoxide. Nineteen (19) of the 36 AQCRs required to have oxidant instruments were above the standard. Again, it should be noted that almost 50 percent of the AQCRs required to have carbon monoxide and oxidant monitors had less than the minimum number of sites with sufficient data for analysis. Additionally, four AQCRs that have a carbon monoxide instrument where no current SIP requirement exists have recorded values in excess of the standard.
Two AQCRs have been noted as having possible deficiencies throughout the AQCR, and further study should be initiated to determine the real extent of the problem.
To date, 8 AQCRs have reported pollutant concentrations that have increased over the past years. This problem appears to be local in nature as only one or two sites in these AQCRs have shown increases. This problem relates primarily to particulate concentrations; however, in a few areas, sulfur dioxide levels have also increased slightly.
In general, the PRMS analysis indicates that in most AQCRs adequate progress appears to be being made for most sites; however, no relaxation of any of the current ongoing programs should take place. The possible deficiencies should be reviewed to determine their cause and possible solution for that area of the AQCR where the deficiency was noted. The status of sulfur dioxide, carbon monoxide, and oxidants will require additional data to really assess the situation and determine if possible deficiencies exist. However, for those areas where a deficiency was noted, some work should begin to investigate the extent of the problem.
SECTION 6 – AIR QUALITY MONITORING AND DATA REPORTING
Ambient air quality
State air pollution control agencies must satisfy two basic requirements with respect to ambient air quality monitoring: (1) establish a network of measurement stations for each designated pollutant (total suspended particulates, sulfur dioxide, carbon monoxide, and oxidants) according to prescribed guidelines, adequate in number and comprehensive in distribution, to yield a representative picture of pollutant means and extremes, and (2) submit the data from these monitoring networks to EPA quarterly as evidence of meeting air quality standards or of making proper progress toward a specified compliance date.
Table 6-1 lists, by State, the level of monitoring activity for calendar year 1972 being reported to EPA's National Aerometric Data Bank (NADB) as of September 1973. Under each pollutant, the initial columns give the numbers of individual stations initially required in the August 14, 1971, Federal Register and the numbers of stations for which data collected in 1972 have been reported.
The remaining columns in Table 6-1 categorize the number of Air Quality Control Regions (AQCRs) within each State that are (1) reporting less than half the required monitoring. (2) reporting from half up to the required monitoring, and (3) reporting more than the minimum required monitoring. (Requirements for interstate AQCRs are apportioned to the constituent States according to population.)
Note that some States in Table 6-1 are reporting as many stations as required, and some are reporting more; but these stations are not always distributed among the AQCRs in accord with minimum requirements for each AQCR. Consequently, even in these States, one or more AQCRs may not yet satisfy minimum monitoring requirements. Further, Table 6-1 identifies how many of the minimum required stations are actually being reported in each State. No attempt has yet been made to assess the aspect of how representative these monitoring locations are.
Tables 6-2 to 6-5 summarize the status of air quality in the nation's 247 AQCRs as portrayed by the data reported to NADB for calendar year 1972. For each pollutant, the number of AQCRs in each priority classification is shown, plus the number of AQCRs reporting (1) at least one station-quarter's data and (2) at least one valid station-year of data for particulates and sulfur dioxide, for which annual standards pertain. The final column in each of these tables reports the number of AQCRs wherein one or more reporting stations exceeded a primary standard. The results in these four tables differ from those presented in the previous SIP progress report as a consequence of additional 1972 data and corrections received in the interim. The previously reported counts are shown in parentheses in the tables.
In brief, suspended particulates remain a problem in spite of encouraging evidence of downward trends. One-hundred-thirty-eight AQCRs have reported at least one station still above a primary standard (24-hour and/or annual) in 1972. Thirty-four AQCRs had reported no 1972 particulate data at that point. Primary 24-hour and/or annual sulfur dioxide standards were exceeded in only 19 of 162 AQCRs reporting in 1972.
Data for oxidants and carbon monoxide are quite sparse, but if these limited results are indicative, substantial problems exist with respect to these two pollutants. The primary oxidant standard was exceeded in 21 of 38 AQCRs reporting at least one quarter's data. The primary carbon monoxide standards were exceeded in 42 of 48 AQCRs reporting In 1972. More detailed information on AQCR status and individual station results is given in Publication No. EPA-450/1-73004.
The presence of individual values or annual means over a standard clearly identifies problem AQCRs. The absence of such values or means in the data reported from other AQCRs does not necessarily warrant the conclusion that the standards are being met in those AQCRs until their monitoring networks have been thoroughly appraised for adequacy in number and placement of monitoring sites. Many regions do not have comprehensive networks operating; others are only just beginning to report scattered results from the initial stages of network implementation. Until assessments can be made of network adequacy (not necessarily to be equated with the initially specified minimum requirements listed in Table 6-1) a technical distinction exists in describing an AQCR reporting no values above standards. For the present, it can only be stated that such an AQCR "experiences no violation." The goal based on data from an adequate network, will be to designate such an AQCR as "in compliance" with national ambient air quality standards.
In some instances, the lack of stations in an AQCR may be only an apparent deficiency. Stations may exist for which the data are not yet being expeditiously relayed or correctly identified for acceptance in the National Aeromatric Data Bank. Table 6-6 provides clear evidence that the anticipated schedule of data submittal from local or State agencies through the EPA Regional Offices to NADB, Durham, North Carolina, has not yet been realized. According to this schedule, data should reach NADB 75 days after the close of a quarter; summaries of these data are then provided 120 days after the close of a quarter. However, at the conclusion of the fourth quarter (CY IV), data for the second quarter of CY 1973 (CY II) reaching NADB represents less than 60 percent of the total stations reporting in CY 1972. Consequently, an attempt to characterize nationwide air quality status or trends using the incomplete 1973 data presently in hand would be premature and misleading at this time. Sufficient 1973 data are expected to be in hand for summarization in the next SIP progress report.
The number of monitors reporting air quality data to NADB by type varies from 60 to 200 percent of nationwide requirements, although the percent of required stations reporting by type is considerably lower, from 39 to 68 percent (see Table 6-7).
The wide variance between the percent of total reporting stations and those stations reporting from required sites suggests a need for EPA and State effort to improve the distribution of air quality monitors as well as to increase the number of some types. It is anticipated that this will change as EPA revises guidelines for minimum monitoring networks in the future.
SOURCE EMISSIONS
The 1972 emission estimates shown in Table 6-8 are based on data from the National Emissions Data System (NEDS) data bank. Until 1972, the emission estimates were obtained by applying overall emission factors and industry average control efficiencies to nationwide production or consumption totals to calculate emissions. Emissions in NEDS are calculated for each point and area source and summed to arrive at the totals shown in Table 6-8.
The NEDS data bank lacks adequate data for estimation of emissions from all sources. The most notable deficiencies in NEDS, with respect to Table 6-8, are that (1) all New York State point sources are missing and (2) emission estimates are not made for forest fires, coal refuse burning, and structural fires. According to data from the New York SIP, significant additional emissions for point source fuel combustion and industrial processes could be expected. Perhaps an additional one million tons of sulfur oxides and smaller amounts of the other pollutants may be added to the fuel combustion by stationary sources totals to account for New York point sources. Industrial process emissions of particulate in New York may be 200,000 tons, but less than 100,000 tons of the other pollutants. Emissions from forest fires, coal refuse burning, and structural fires should be added to the miscellaneous category to make these totals comparable to the data for previous years. Due to lack of source data on a detailed, county basis for these types of sources NEDS does not presently account for these emissions.
The 1972 data based on NEDS show significantly higher carbon monoxide and much lower particulate emissions from industrial processes when compared to the 1971 data based on the old methodology. NEDS shows more carbon monoxide for 1972 for nearly every industrial category.
It is concluded either that NEDS has not adequately accounted for carbon monoxide controls or that the old methodology overestimated the extent of control. Another possibility is that relatively large emitters were not accounted for in the old methodology. The apparent discrepancy is probably due to a combination of these factors. On the other hand, recent industrial process particulate emissions from NEDS agree quite well with old methodology estimates except for the mineral products industry and food and agricultural industry categories. Recent NEDS estimates show much lower emissions for both categories (5.2 versus 2.6 million tons for food and agricultural industries). Again, the discrepancy could be due to difficulties in correctly determining control efficiencies. A more likely explanation in this case is that NEDS does not adequately account for emissions from all sources in these categories. It is known, for example, that NEDS does not contain adequate source data to estimate emissions for all grain elevators and feed mills.
COMMENTS ON PROPOSED RULES REGARDING USE OF SUPPLEMENTARY CONTROL SYSTEMS
The proposed "supplementary control system" ("SCS") regulations, 38 Fed. Reg. 25697 (Sept. 14, 1973), should not be promulgated. In our view, they violate the Clean Air Amendments and cannot be supported on policy grounds. EPA was correct about a year ago when it stated its opposition to dispersion techniques: "dilution" is not, as the leaden professional jest once had it, "the solution to pollution."
At the outset, we must clarify what these regulations actually provide, for they are written in a way that disguises their true consequences. The proposed regulations provide for indefinite use of SCS and tall stacks as a means of attaining National Air Quality Standards in the vicinity of "isolated sources" of pollution. So long as a state agency concludes that continuous emission control devices capable of meeting the emission limitations necessary to attain standards are not "available," and the source agrees to undertake a program of research on continuous emission controls, the source may continue using SCS. They are not limited to use as "interim measures of control," within the meaning of the statute, since they are not limited to sources within areas that have received extensions of the deadline for attaining National Standards as provided in § 110(e) of the Act, and since the proposed regulation puts no limit on the time during which they may be used.
This point should be made clear. In our views, SCS may be a legally acceptable interim measure under § 110 (e) and (f) of the Act. But despite the rhetoric of EPA's preamble to the proposed regulations, they do not confine SCS to use as an interim measure in any ordinary sense of the word. In the statute, the word "interim" is used in connection with short periods of time, such as one or two years, with specified beginning and end. A source allowed to use an "interim" measure must be on a binding compliance schedule constructed to insure that emission limitations are met at the close of the interim period.
But EPA's proposed SCS regulations contain none of these earmarks of an interim measure.
Instead of requiring a definite date in the near future for moving from SCS to continuous controls, they merely require "formal review and reexamination of the permit at intervals of 5 years or less." Proposed App. P, § 3.2(g). Rather than requiring a specific compliance schedule for moving to continuous controls, or even a binding schedule for a program of research on such a control system, they timidly require a mere "description ...of the firm's research and demonstration programs, or its participation in such programs, which will accelerate the development of constant emission reduction technology .... [including a description of] schedules and resources to be committed, and an anticipated date when adequate emission reduction technology can be applied. Proposed App. P, § 3.2(b) (5). These "requirements" amount to little more than a generalized and totally unenforceable statement from the source that he intends to proceed in good faith. Since the statute requires compliance, the good faith of a source is irrelevant, though it is hard to imagine how the statutory requirements could be attained without it. On the other hand, EPA has already accumulated ample hard evidence, based on performance rather than promises, to justify a conclusion that good faith attempts to develop and install continuous control equipment cannot be anticipated from the utility industry.
Second, though they are drafted to disguise the fact, the proposed regulations are actually a vehicle for legitimizing the use of tall stacks as well as SCS. In fact, they are drafted in a way which would allow a source to escape ever having to curtail production (or pollution) so long as he presented a paper program for intermittent curtailment and built a tall enough stack. Proposed 40 C.F.R. § 51.13(h) places only one limitation on the use of tall stacks to attain Air Quality Standards – that it be "accomplished as part of an approved supplementary control system." The possibility that an SCS will be merely a paper justification for building a tall stack is hardly remote. Process curtailment is expensive, and inconvenient. In the case of power plants, the need to continue operations at full capacity is likely to occur at precisely the times when curtailment would be required if SCS were relied upon without tall stacks – during periods of air stagnation during the summer when massive use of air conditioning produces peak loads on electrical systems. In other industries, it is likely that the increased production that could be provided by being able to operate at full capacity at all times would more than pay the costs of erecting a stack high enough to avoid ever having to invoke SCS process curtailment. For these reasons, the SCS proposal can in no sense be considered a proposal for "emission limitations," as required by the Act. It is, pure and simple, a proposal to supply the mantle of legitimacy to the use of dispersion as a means to attain National Air Quality Standards, and must stand or fall, legally, on the question of whether such a method is allowed by the statute.
I. DISPERSION IS PROHIBITED BY THE ACT AS A MEANS OF ATTAINING NATIONAL STANDARDS
The issue of whether dispersion techniques are allowed by the Clean Air Amendments is now in the Courts. Since NRDC is one of the litigants in this case, it is unnecessary to delineate in detail the statutory basis for our belief that such methods are explicitly prohibited as control strategies by the Act. Instead, we incorporate by reference pages 23-30 in petitioners' brief, and pages 15-19 in petitioners' reply brief in that case, which are attached to these comments as Appendix A. Suffice it to say, however, that NRDC regards that case as placing in issue the principle of whether dispersion is a permissible means of control under the Act, and will regard a holding in our favor there as applying to the whole of the regulations under consideration here.
We also believe that the present SCS proposal does violence to the statutory scheme in another way. In its preamble to the proposed SCS regulations, EPA asserts that SCS is to be considered as a control technique wherever adequate continuous emission control methods are "not available" and the "alternatives ... will be either to close these facilities (or drastically curtail production), or apply supplementary control systems." 38 Fed. Reg. at 25699. In such situations, the preamble states the Administrator's judgment that "it does not appear to be in the public interest to require shutdown or permanent curtailment of production for existing sources which could temporarily use supplementary control system..." Id.
This statement does not provide a legally adequate basis for turning to a method of dubious efficacy and legality. The Act does not set itself against the closing of plants which endanger the public health and welfare. Indeed the drafters explicitly recognized the possibility that methods of production that were incompatible with the protection of the public must be curtailed or eliminated. "(E)existing sources of pollution either should meet the standard of the law or be closed down ..." Sen. Rep. No. 91-1198 (1970), at 3.
The Act also provides a means for dealing with situations when a claim is made that meeting the requirements of the law would result in shutdown, designed to maximize the incentive of the source to find ways of complying with the emission standards contained in the State Plan. First, where emission controls are not available soon enough to insure attainment of National Primary Standards within the three years outer limit required by the Act, a State may receive up to two years extension of the deadline for meeting the Standard. If an individual source finds that he is still unable to install equipment or make other changes to bring him into compliance, he may ask his State Governor to request an additional year's postponement of the application of the emission limitations to him. Such a request must be tested in a judicialized hearing, where there is opportunity of cross-examination and full testing of the source's claim. If, among other things, the Administrator finds that the continued operation of the source is "essential to the national security or to the public health or welfare," he may grant the postponement; if not, he must order shutdown. We find nothing in the statute which precludes additional postponements, so long as they are tested fully through the statutory procedure. But the benefit of this procedure is that it places a heavy burden on the source owner to justify, on a yearly basis, continued failure to meet emission limitations. EPA's proposal, which substitutes an informal administrative judgment, made long before the last deadline for meeting State emission standards and renewed only infrequently, removes this burden and maximizes the incentive to avoid discovering ways of meeting the emission limitations .
Finally, the proposal violates the requirement of the Act that any State Plan, or revision, "provide (1) necessary assurances that the State will have adequate personnel [and] funding. " § 110 (a) (2) (F), 42 U.S.C. § 1857c-5 (a) (2) (F). An SCS will impose large financial, administrative, and technical burdens on the State agencies. The Puget Sound Air Pollution Control Authority, one of the few State agencies with experience in overseeing such systems, estimates that it presently spends $160,000 to $200,000 per year to monitor the SCS now operating at ASARCO's Tacoma, Washington, smelters. EPA's own estimates, completed prior to the formulation of the proposed regulations, fall in the same range. Yet nothing in the proposed regulation requires a showing by a State agency inclined to allow the use of SCS on a facility of whether such funds are available over and above funds already made available for the remainder of the State program. If such additional funds are not available, they will obviously rob from the existing State program. In many State agency budgets, $200,000 represents a sizable portion of the entire air pollution control effort.
To remedy this defect, EPA should require, as a prerequisite to approval of any proposed SCS, a showing that the funds necessary to hire competent personnel, place and maintain monitors, telemeter continuous emission and ambient air quality data to the State agency, and pay for enforcement are available. This funding should not be the responsibility of the State agency. The cost of administering an SCS is a cost of pollution control, just as the cost of any continuous emission control system is, whether it be flue gas desulfurization or clean fuel. Rather than merely encourage the States to require licensing fees to defray to additional costs of SCS (preamble to proposed rulemaking, 38 Fed. Reg. at 25700), the Agency should make such fees a prerequisite to approval of any such system. This was urged within the agency in earlier consideration of the SCS regulation; it should be added to the proposed rule. Without requiring assurance of adequate personnel and funding, the rulemaking cannot meet the legal standard of the Act.
II. DISPERSION SHOULD BE PROHIBITED BECAUSE IT REPRESENTS BAD POLICY
A. The Use of Dispersion Rather Than Continuous Controls Endangers the Environment Because it Fails to Curtail Atmospheric Loading With Dangerous Pollutants. The dangers of atmospheric loading of sulfur oxides, particulate matter, nitrogen oxides, and other toxic materials are increasingly well known in the scientific community and within EPA. Evidence is accumulating rapidly that the health effects of sulfur oxides are related to sulfates, interacting with particulate matter and perhaps nitrogen oxides. Sulfates are dangerous to health at concentrations an order of magnitude smaller than the present National Primary Standard for sulfur oxides. Concentrations prevailing in the skies over much of the urbanized areas of the country are often as high as twice those found to have adverse effects on health. Unlike sulfur dioxide, sulfates are distributed in dangerous concentrates over wide areas, not just at the points where plumes from specific sources touch down.
Similarly, a growing body of evidence exists that injury to the biosphere is growing rapidly as a result of acid rains. Like sulfate concentrations, acid rains are related to the total quantity of sulfur oxides emitted into the biosphere rather than the ground level concentrations now regulated under EPA's National Standard for sulfur oxides. Evidence exists that in some parts of the country, the level of acid accumulated in the biosphere has reached very close to a critical point at which natural neutralizing agents can no longer prevent major damage.
As a matter of policy then, it is highly inappropriate for the Agency to be considering regulations which would allow continued atmospheric loading with sulfur oxides and other pollutants. Rather than seeking to legitimize further atmospheric loading, the Agency should be considering additional National Standards that would have the effect of reducing drastically the total quantities of these pollutants emitted into the air. The failure to do so represents a serious dereliction of statutory duty; the present proposal, given this context, may violate the statutory duty to protect public health and welfare.
B. SCS Is Not a Reliable Method for Meeting the National Air Quality Standards. Over a year ago, EPA declared that SCS was not acceptable because, among other things, it was not a reliable means of meeting the National Standards. 37 Fed. Reg. 15095 (July 27, 1972). In the present proposal, it has not presented sufficient basis for a different conclusion.
To begin with, EPA nowhere explicates a consistent or defensible definition of the concept of reliability. An acceptable definition must be grounded in the words of the statute itself, which states that the State Plan must contain measures that "insure attainment and maintenance" of the National Standards. S 110(a) (2) (B), 42 U.S.C. §1857c-5(a)(2) (B). Plainly, the meaning of this phrase is that the Standards must be met at all times, not merely some percentage of the time.
Measures that will accomplish full-time compliance are available, and have been adopted by most States. Low sulfur fuel, the most commonly adopted means for attaining the Standards, allows 100% compliance with emission limitations. Similarly, 100% compliance can be attained through flue gas desulfurization technology, by designing in redundant systems so that malfunctions can be compensated for by switching modules, by ceasing operations when malfunctions become sufficiently serious to prevent compliance with emission standards, and, in some cases, by retaining the capacity to switch to clean fuel during periods of equipment malfunctions.
In considering the SCS proposal, however, EPA appears to have operated under a different, and statutorily deficient, concept of reliability. An EPA briefing paper on SCS (ICS), referred to previously, adopts the position that SCS is acceptable if it attains the ability to prevent violations of National Standards 80 per cent of the time. The assumption behind this conclusion, stated in the briefing paper, is that this level of reliability is all that can be attained by continuous emission control equipment, since it must be down for scheduled maintenance a certain number of days, and will be down because of malfunction an additional number of days each year.
This assumption is in error for a number of reasons. First, it assumes that the bench mark for reliability is flue gas desulfurization equipment, though using clean fuel enables 100% compliance. Second, it assumes that plants will continue to operate regardless of the fact that their pollution control equipment is not functioning – an assumption contrary to the command of the statute, as noted previously. Third, it assumes that scheduled down time will be randomly distributed, as will days of atmospheric stagnation that would assure violation of the National Standards. In fact, air pollution agencies have the power to order scheduled maintenance of pollution control equipment to occur at times when the likelihood of stagnation is lowest. And as a matter of fact, to take one important class of sources, utilities would ordinarily schedule maintenance during the spring and fall because their system load is lowest at that time of the year; it so happens that in most areas of the country, spring and fall are also the seasons when stagnant weather is least likely to occur.
Using this false conception of the degree of reliability required by the statute, and this erroneous set of assumptions about how reliable continuous control measures actually are, the Agency was apparently willing to accept evidence from interested parties tending to show that SCS systems now in operation can achieve similar levels of reliability. In justification of its conclusion that SCS has now been shown reliable, the Agency cites three examples: two smelters operated by ASARCO in Tacoma, Washington, and El Paso, Texas; and a power plant operated by the Tennessee Valley Authority.
None of these examples constitutes adequate basis for a conclusion with respect to reliability. EPA makes no claim that any of them have shown SCS capable of preventing all violations of National and State Air Quality Standards; instead, it bases its conclusion on data allegedly showing that violations of National and State Standards at each plant have declined to some level it chooses to call tolerable. In fact, even these conclusions are extremely suspect. First, the data from the TVA plant is entirely generated by TVA, a highly interested party. EPA makes no claim that this data was ever tested independently, and it could not, as far as our investigation has been able to discover. Second, the data from both ASARCO plants are flawed by a basic defect. State officials from both Texas and Washington State have indicated to NRDC that the dramatic reductions in violations shown in EPA's figures are in large measure owing to the operators' ability to program the system to avoid sensors. Mr. Kellog, meteorologist with the Puget Sound Air Pollution Control Authority, stated to us that in his judgment, curtailment of operations at the Tacoma smelter begins only when the plume moves toward sensors, rather than when conditions merit curtailment to avoid excessive concentrations at any point in the region affected by the plant. Likewise, officials in the El Paso local agency reported that the violations from the ASARCO smelter there increased 100 % with the addition of ten new monitors.
But the crucial deficiency in the data presented by EPA is even more telling. In both cases, the smelters operate in geographical locations that allow them to operate without regard to ground level concentrations much of the time. In Tacoma, the smelter is located close to Puget Sound, where PSAPCA has no meters. And in El Paso, the smelter is able to "aim" its emissions into Mexico much of the time, where no air pollution agency maintains sensors. One State official, who requested that he not be identified, told us that "the only closed loop system" he knew about was that "a hell of a lot of copper is smelted there when the wind blew towards Mexico.
In short, what the Tacoma and El Paso examples appear to show is the weaknesses in an SCS, rather than its strengths. Both smelters appear to have used their systems merely to learn how to avoid preventing excessive concentrations where they could be detected, rather than how to assure protecting persons from harm. It seems fair to assume that similar learning will occur elsewhere if SCS is widely adopted.
These examples point up the general weakness in SCS that it is open to manipulation in so many ways that it cannot be counted on to protect the public. Clearly, the number of "violations" depends in the first instance on the number and placement of sensors, which is in turn dependent on the financial resources of the control agency. Placement will certainly be the subject of negotiation between source and agency, and this will surely produce anomalies. The number of violations also depends on the time intervals of the standards. Washington State regulations, for example, provide a standard for a 5 minute interval, but the Tacoma smelter now operates under a blanket variance from this, apparently because it would have produced too many violations. By contrast, the National Primary Standards' short test interval is one day, assuring a maximum number of violations of 365 in a year. (The National Secondary Sulfur Oxides Standard is for a three hour interval, but it is generally conceded that it is set at such a high concentration that its regulatory effect is nil.)
In sum, it would appear that virtually any figures on the reliability of SCS for assuring attainment of National Standards at all points affected by a source are bound to be little more than artifacts of the Standard itself and the location and number of sensors. Even more important, it would appear that the improved compliance that allegedly comes with experience is in fact little more than increased sophistication at finding the weaknesses in the monitoring systems surrounding the plant.
C. SCS Is Not an Enforceable Method for Meeting the National Standards. Compliance with SCS is inherently difficult to enforce, because the degree of compliance depends on hundreds or thousands of low visibility actions each year by the plant operator, any one of which can produce a violation of National Standards. By contrast, an enforcement agency finds it relatively easy to enforce a low sulfur fuel requirement, or requirement to install flue gas cleaning equipment, both of which require essentially one or a few very visible actions on the part of the source owner. If a State agency takes seriously the enforcement of an SCS, it will assure jobs for an entire enforcement apparatus on a permanent basis. There will have to be enforcement attorneys to present each violation to a judicial-type administrative body, and such a body to hear each case.
Where such bodies already exist, SCS would guarantee imposing immense new responsibilities on them, which most are not now prepared to handle. Where a decision of an administrative agency is contested, there will be appeals to State judicial systems, with attendant expense and strain on the judicial system. Though the proposed requirement that sources forego the defense that they are not responsible for violations within a given zone (proposed App. P, § 3.2 (d) (1)) will help, EPA should not fool itself into believing that meter readings showing violations will not be contested vigorously. PSAPCA's experience with the Tacoma smelter proves this point forcefully.
There will also be a continual temptation on the part of the State agency to compromise the real reliability of the system in assuring compliance with National Standards rather than "waste" the agency's resources fighting "minor" infractions.
More likely, for the reasons cited above at 7, State agencies will simply not have the manpower and competence to police the sophisticated SCS. Most State agencies do not have the budgets to support the enforcement apparatus necessary to assure compliance. For example, NRDC's investigation of the Tacoma and El Paso smelters mentioned in the EPA proposal repeatedly unearthed mistakes and uncertainties as the number of violations recorded by the agency. The El Paso agency reported violations three times a week from the ASARCO plant yet the State agency could not confirm these figures when NRDC inquired. In November the New Mexico State agency sent NRDC computer printouts of monitor readings indicating numerous violations caused by the same plant, only to inform us this month that these figures were wholly inaccurate because the "technician had mistakenly been doubling the readings." The PSAPCA presented NRDC with three different and inconsistent inventories of violations from the Tacoma smelter for the same period, and confessed to be mystified at the basis of the figures presented by EPA in the preamble to the proposed rulemaking. Kentucky State officials told NRDC that they do not monitor the TVA Paradise plant cited in the EPA preamble at all.
The proposed regulations do not even provide an enforceable means of assuring ultimate compliance with emission limitations through continuous controls. The proposed regulations' requirement of a "formal review" at suggested intervals of 5 years (proposed App. P, § 3.2 (g)) , and of a "description" of the source's contemplated program of research on continuous means of control (proposed App. P, § 3.2(b) (5) ) would provide no means for a State agency to force a source even to undertake a particular line of research, let alone install any specific equipment.
D. The Use of SCS Cannot be Limited to a Small Number of "Isolated Sources". In proposing to authorize the use of SCS, the Agency makes a good deal of its intent to confine the use of SCS to "a limited number of sources" "under carefully controlled conditions." Proposed App. P, Introduction. Though this intent is laudable, NRDC doubts that SCS can be so confined. Once the Agency has certified that such systems are legal, reliable, and enforceable, it has placed itself on the slippery slope, with no clear way of drawing a line between a source where SCS is acceptable and where it is not. Given the heavy financial incentive for sources to seek adoption of SCS, it can be expected that sources will seek State and Federal approval for more and more dubious applications of SCS, each relying on a previously granted SCS permit granted to a source only slightly less dubious than itself. Having abandoned the high ground of prohibiting SCS altogether, EPA will inevitably be forced through court action or the threat of it, to capitulate to such demands.
The present proposal is itself a vivid illustration of this danger. When EPA first expressed its objection of SCS on grounds of reliability and enforceability, rather than the clear principle of illegality, it virtually invited source owners to produce data designed to allay the Agency's concern. This data has now been produced, and had the predictable effect, even though, as we pointed out previously, pages 13-19, it is riddled with assumptions and defects that vitiate the conclusions drawn from it. Nonetheless, given the immense industry stake in obtaining approval for SCS, and the political divisions within EPA itself, this data has been used as an excuse for the Agency to reverse its better judgment. In the much less visible circumstances of individual applications to use SCS, it can be expected that these forces will operate with even more effect.
E. The Proposed Regulations Would Allow the Use of SCS in Heavily Populated Areas. The proposal is written to contain the use of SCS to what it calls "isolated sources" of pollution. This isolation is defined in terms of other air pollution sources, rather than people, however. Proposed App. P. § 1.0. As a result, nothing prevents the application of SCS to sources such as the Tacoma and El Paso smelters, located within plume range of highly concentrated populations. In our view it is unconscionable for the Agency to adopt a policy of continued atmospheric loading in any such area. Redefining the meaning of "isolated" to prevent this outcome, while it would not in our view make the regulation any more acceptable under the statute, would at least provide some assurance that the public would not, in large numbers, be exposed to continued high levels of sulfates and other toxic materials.
[Footnotes omitted]
U.S. ENVIRONMENTAL PROTECTION AGENCY,
May 2, 1974.
Subject: Definition of Significant Risk. From: J. F. Finklea, M.D., Director, NERC RTP.
To: Bernard J. Steigerwald.
Attached is a draft of the requested document defining significant risk to health. The delay in preparation of this draft was caused by our need to do additional work on the acid-sulfate aerosol problem before writing this paper.
LEVELS OF AIR POLLUTANTS ASSOCIATED WITH ADVERSE HEALTH EFFECTS AND WITH SIGNIFICANT RISKS TO HEALTH
(By J. F. Finklea, D. I. Hammer, and G. L Love)
Estimates of pollutant levels associated with adverse health effects can provide a rational point of departure from which to assess the impact of ambient air quality deterioration. The soundest of such estimates are likely to be ascertained from the current U.S. Primary Air Quality Standards.
The Clean Air Act requires that primary air quality standards be set to fully protect the public health and that these standards contain an adequate margin of safety. Thus the law assumes there exists a "no known effects" threshold for each pollutant and for every adverse health effect.
Moreover, the Clean Air Act requires that the primary standards be set to fully protect both specifically susceptible subgroups and healthy members of the population. One can define significant risk in many ways, the most prudent definition would be any adverse health effect, in other words, the present standards without any safety margin. Another more troublesome but undeniably defensible definition would be the threshold concentration at which there is a demonstrable increase in mortality.
Adverse health effects include both the aggravation of preexisting diseases and increased frequency of health disorders. In addition, good preventive medicine would dictate that evidence for an increased risk of future disease is an adverse health effect. Discussion of what constitutes an adverse effect may become quite vigorous at times. Most reasonable men would agree that mortality (death) and morbidity (illness) constitute adverse effects. However, pollutant exposures are usually not the sole cause of death or the sole cause of any single disease or group of disorders. Furthermore, with few exceptions unique disorders do not follow exposure to the pollutants for which we have established primary ambient air quality standards. There is even more room for honest disagreement when one tries to ascertain which changes in body function indicate a risk for clinical disease and which are either simply adaptive or of uncertain significance.
Especially susceptible population segments include persons with pre-existing diseases which may be aggravated by exposure to elevated levels of pollutants in the ambient air. Some quantitative information is available on the aggravating effects of air pollutants on asthma, chronic obstructive lung disease and chronic heart disease. Asthmatics constitute two to five percent of the general population; three to five percent of the adult population report persistent chronic respiratory disease symptoms; and seven percent of the general population report heart disease severe enough to limit their activity. The distribution of these conditions by age, sex, ethnic group, social status and place of residence is better defined by other reports. One could legitimately be concerned about the aggravating effects of air pollutants on a number of other susceptible population segments; persons with hemolytic neoplasms, premature infants and patients with multiple handicaps. Little quantitative information exists about the aggravating effects of pollutants on these individuals.
In addition to the aggravation of symptoms in persons who are already ill, air pollutants may also increase the risk in the general population for the development of certain disorders. Many if not all of the general population may experience irritation symptoms involving the eyes or respiratory tract during episodic air pollution exposures. Similarly, even healthy members of the general population may experience impaired mental activity or decreased physical performance after sufficiently high pollution exposures. The general population, especially families with young children, is almost universally susceptible to common acute respiratory illnesses including colds, sore throats, bronchitis and pneumonia. Air pollutants can increase either the frequency or severity of these disorders.
Personal air pollution with cigarette smoke, occupational exposures to irritating dusts and fumes and possibly familial factors increase the risk of developing chronic obstructive lung disease and respiratory cancers in large segments of our population. Ambient air pollutants also can contribute to the development of these disorders. A few animal studies indicate that air pollutants may also accelerate atherosclerosis and coronary artery disease. These conditions affect most of our adult population even though they may be clinically silent. There is legitimate concern but few reliable studies to indicate that air pollutants may cause embryotoxicity, fetotoxicity, teratogenesis and mutagenesis. It is difficult to define which segment of the unborn population might be most at risk. In fact these events are poorly recorded and the relevant existing data are not readily accessible.
Safety margins contained in the present primary air quality standards may be estimated by comparing the present standards to the best judgement estimate of the effects threshold for each pollutant. As previously mentioned, one method of defining significant risk is to accept the best judgement estimates for adverse health effects and sacrifice the safety margins summarized by pollutant in Table 1.
Sulfur dioxide, acid sulfate aerosols and total suspended particulates are considered together because the assessment of their effects is based largely upon community studies in which it is difficult if not impossible to disentangle the effects attributable to one pollutant from those attributable to another pollutant or to a mixture of the pollutants. Studies which were initially thought to have considered isolated exposures to urban particulates really involved exposures containing substantial amounts of acid aerosols or particulate sulfates. With regard to the short-term standards, aggravation of preexisting cardio-respiratory symptoms in the elderly, aggravation of asthma and irritation of the respiratory tract seem to occur a level lower than those permitted by the relevant primary ambient air quality standards.
The effects noted at sulfur dioxide and suspended particulate levels lower than the standard are in our opinion most likely due to elevated levels of finely divided suspended particulate acid sulfate aerosols which arise from reactions involving sulfur dioxide, particulates and other pollutants in the atmosphere. Our best judgement estimates for threshold levels of suspended sulfates in ambient air are further detailed in Table 2 along with illustrative health risks that might accompany exposures substantially above each threshold. Suspended sulfates are the best available though far from perfect proxy for acid sulfate aerosol exposures.
Three points are worth emphasizing: first, the estimates for sulfur oxides and particulates are based on community studies; second, the estimated effects thresholds for particulate sulfates are an order or magnitude lower than those for sulfur dioxide or total suspended particulates; and third, the safety margins present in the ambient air quality standards for sulfur oxides and particulates are quite modest being in all cases less than the standard itself. For the long-term standards, one must realize that average estimates do not always adequately consider the effects of annual repeated short-term peak exposures. For example the lowest best judgment estimate for an effects threshold for increased prevalence of chronic respiratory disease symptoms is based upon annual average estimates in a smelter community where repeated short-term peak exposures occurred. The lowest annual average exposures involving less marked fluctuations in short-term levels were considerably higher. The safety margins contained in the annual average standards seem only slightly more adequate than was the case with the short-term standards.
Nitrogen oxide exposures are now controlled on the basis of an ambient air quality standard for nitrogen dioxide. Investigators have expressed concern that exposures to organic nitrates, nitrous acid, nitric acid and suspended particulate nitrates have not been adequately considered. In fact, preliminary epidemiological data have associated the aggravation of asthma with suspended nitrate levels of about 4-6 ug/m3 per 24 hours. There is no short term Federal standard for nitrogen dioxide. The existing long-term standard, seems adequate with a margin of safety somewhat greater than those for sulfur oxides and suspended particulates.
Adverse health effects attributable to carbon monoxide differ markedly from those associated with the other ambient air quality pollutants. Decreased oxygen transport and interferences with tissue respiratory mechanisms result in a different army of worrisome effects. Clinical studies of carbon monoxide effects predominate. A limited number of experimental animal studies and population studies involving certain of the adverse effects associated with cigarette smoking may also be relevant. The existing 8 hour and 1 hour standards permit a 130% and 82% margin of safety, respectively at sea level. At higher altitudes (=1500 meters). These safety margins would both be less than 100 %.
Adverse health effects associated with photochemical oxidant exposures involve a different set of considerations. Photochemical oxidants include compounds other than ozone which are quite irritating to the eyes. Ozone itself is thought to be radiomimetic thus focusing concern on accelerating aging, increased risk for malignancies, mutagenesis, embrytoxicity and teratogenesis. Information on susceptibility to acute respiratory disease, risk for mutations and impaired fetal survival is limited to animal studies. Photochemical oxidants are of interest for another reason, many of the studies were conducted some years ago before research methodologies were refined. These pioneer studies may not have adequately addressed the problem. In estimating effects thresholds, there is little uncertainty regarding irritation phenomenon and a great deal of uncertainty when considering other adverse effects. No estimates are possible for two of the more severe health effects – accelerated aging and malignancies. It is also worth emphasizing that assessment of potentially grave health effects depends on a small number of largely unconfirmed studies.
Several factors must be kept in mind when considering the calculation of safety margins presented in Table 1. First, safety margins are not as precise as the percentage estimates would at first seem to indicate because of the underlying uncertainties in measurement methods and in estimates of effects thresholds. Second, consistency in safety margins was not a major consideration in setting primary ambient air quality standards. Third, the apparent margins of safety have decreased as more complete health studies on susceptible populations have become available. Fourth, the safety margins contained in the primary ambient air quality standards are much smaller than those maintained for the control of ionizing radiation and most environmental chemicals. In no case does the safety margin for a pollutant clearly exceed the standards for that pollutant. Even the most extreme best judgment safety margin is less than ten times the relevant standard. Finally, there is little or no safety margin associated with the sulfur dioxide-suspended particulate-fine particulate sulfate combination. In general, therefore, little or no deterioration of air quality can occur without a subsequent increase in adverse health effects.
Another definition of significant risk might be the earliest level at which increases in daily mortality are observed. This definition can be reasonably applied only to sulfur dioxide, acid sulfate aerosols measured as suspended sulfate and total suspended particulate. Such values are summarized in Table 3. It is our best judgement that there is a significant risk for increased mortality over an urban region for 24 hours if sulfur dioxide levels exceed 400 ug/m3, if suspended sulfates exceed 25 ug/m3 or if total suspended particulates exceed 300 ug/m3. Exposures of this magnitude or larger to small areas where people do not spend an entire day or where susceptible infirm or apparently healthy elderly persons do not reside might still be deemed permissible. For example, acceptable occupational exposures involving limited numbers of healthy pre-screened adults exposed for 40 hours or less each week might be allowed to exceed significant risk levels for the general population.
Another approach to the significant risk problem would be to recognize the lowest achievable ambient pollution levels consistent with competing broad national goals, calculate the probable resulting unavoidable health damages and endeavor to reduce these health damages as soon as possible. Finally, one could attempt a formal cost-benefit analysis but it is likely that this approach would be most controversial at the present time because health damage functions are not yet precisely defined.
[Tables omitted]