August 5, 1976
Page 25882
Senator MUSKIE. Mr. President, there are many reasons to oppose efforts to remove the use of opacity tests and tests of visible emissions from Federal enforcement. A number are of such significance as to require the special attention of this body.
First. If the Environmental Protection Agency is barred from requiring control of pollution emissions on the basis of a visibility test, then EPA would be barred from enforcing emission controls for some of the Nation's most significant polluters. Pollution sources and pollution control agencies have relied on visible emissions as a basis for determining the proper functioning of combustion units and pollution control equipment since the beginning of the effort to control air pollution. Today, an essential element of control strategy is television monitors on stacks so that pollution control engineers can judge, on the basis of visible emissions alone, whether or not their equipment is performing properly. Does the Senate want to deprive the Environmental Protection Agency from using the same tools that are available to the pollution source as a means of determining whether or not emission control equipment is functioning properly or at all? No.
Some sources of pollution are controlled through operating procedures rather than pollution control equipment. The test of effectiveness of those operating procedures is visible emissions. Plant operators make the judgment on that basis and so do pollution control officials. Again, should EPA be denied the ability to enforce against inadequate operating procedures where those procedures are the control requirement? No.
Second. The State implementation plans which EPA has approved establish emission limitations and enforcement techniques. In many cases, for a variety of reasons, emission limitations are articulated in the form of opacity regulations. EPA is authorized to enforce emission limitations in State implementation plans whether established in precise numbers or in terms of opacity.
Most States have relied on the opacity limits in the absence of a fully evolved, precise ability to limit, by actual numbers, the quantity and quality of plant emissions. It would be improper if EPA were barred from enforcing that basic element of State implementation plans. EPA would then be required to void all current State implementation plans based on opacity limitations and be required to either promulgate precise numerical emission limitations for each plant or require the State to carry out that function. This would set back the effort to control air pollution at least 5 years. It would be a needless and extremely costly Government expense. It would cast doubt on both the wisdom and the effectiveness of Federal law.
Third. The alternative to enforcing emission controls on the basis of opacity is, as I have indicated, to establish precise numerical limits. This would be a difficult and time-consuming process in most cases. But more important, as relates to coke batteries, various other elements of steel operations, and other open industrial processes, it would hardly be relevant. And, in virtually all cases, it would require the installation of stack and non-stack emissions monitoring equipment, the cost of which would be immense, and, in some cases, prohibitive. We know for example that most in-stack monitoring equipment which measures, on a constant basis, the precise emissions from a facility must be replaced frequently because of deterioration. We know monitoring the precise emissions from a coke battery would probably either require the full enclosure of that coke battery and the release of the emissions through a single stack or precisely monitoring each of the doors and the charging areas of each coke battery, either of which would be prohibitively expensive. It is clear that the Senate does not want to remove a useful and cost effective means of pollution control and substitute in its stead a prohibitively expensive, barely feasible control and monitoring approach.
Fourth. Mr. President, visible emissions enforcement is the only immediately available technique for enforcing controls on emissions from those sources of pollution which do not release their pollutants through stacks. I have mentioned coke batteries. There are numerous industrial activities, including windblown dust from coal and ore piles, and fugitive emissions from mining operations or blast furnace gases from steelmaking operations which not only do not lend themselves to easy collection and treatment, but also result in significant exposure to workers who breathe the air on the grounds of the plant. The ability of Federal pollution control officers to enforce the visible emissions is essential to protecting the health of these workers. This is one of many areas where air pollution and occupational health efforts meet. An essential element of that protection of the health of workers from ambient air pollution exposure is the capability to enforce on the basis of visible emissions.
A number of arguments have been raised against the validity of these enforcement techniques. I include at this point in my statement a discussion of those arguments:
DISCUSSION OF ARGUMENTS
1. Opacity regulations are not an effective tool in determining the impact of a facility on ambient air.
Rebuttal: These regulations are in many ways the most effective tool. They are quick and easy to use — an essential element in air pollution enforcement. Moreover, for many of the sources Senator Randolph admits he is interested in protecting (particularly coke plants) these are the only techniques available to control emissions.
2. "Process weight" standards should be used instead of opacity.
Rebuttal: At a coke battery, the weight of the coke going into the process is known, but it is not possible to "weigh" the fugitive emissions that come from the coke battery process.
3. Visibility is determined by the size of the particulate, not the quantity, and therefore doesn't relate to air quality.
Rebuttal: This is not correct. There is adequate, though not perfect correspondence between opacity readings and the quantity of pollutants emitted. In addition, this argument calls for using additional techniques, not throwing out the leading technique now being used.
4. Opacity readings are not reproducible.
Rebuttal: The question again is acceptable reproducibility, not total reproducibility. The courts have determined that opacity readings are adequately reproducible. "Process weight" requirements should be used where they can be applied, but that does not argue for removing additional control techniques such as opacity readings. In many cases, they are the only technique available.
5. Opacity readings are vulnerable to the positioning of the observer relative to the sun and other atmospheric lighting.
Rebuttal: Observers are trained to take readings with consistent positioning relative to the sun. Simple training on the use of this technique is part of all air pollution control officials' training.
6. EPA is enforcing these requirements where air quality is not at stake.
Rebuttal: This is not true. The biggest conflicts regarding this have occurred at steel plants — in regions where air quality is two or three times worse than the existing primary standards. In addition, this argument misunderstands the fact that the Clean Air Act is not based on ambient air quality enforcement. It is based on the enforcement of specific emission limitations. If this argument is adopted, then it begins to erode the whole concept of enforcing emission limitations rather than ambient air quality.
7. States have complained about EPA creating conflicts in enforcement.
Rebuttal: This is true in some areas, but not true on the issues raised in this amendment. States have not complained about the enforcement of visible emissions and opacity. The States were the ones that put opacity readings and visible emission requirements in State plans in the beginning. These were not EPA requirements.
Mr. RANDOLPH. As the Senator from Maine knows, I have an amendment which would limit the power of the Environmental Protection Administrator to enforce State emission limits which are defined in terms of "opacity" or "visible emissions." Under my amendment the Administrator could not act unless he received a specific request from a State or local air pollution control agency. I shall not press this proposal but I discuss it with the Senator. I am concerned that, today, with all of our advances in air pollution control and monitoring technology there is still an excessive reliance on the human eye as a basic measure of violation of law. This seem to be an unusually subjective method of determining compliance or noncompliance especially when the statute will specify costly civil and criminal penalties for failure to comply with these limits.
Mr. MUSKIE. I agree with the Senator and I understand his concern. We have set in motion a sophisticated law with sophisticated penalties. In many cases highly innovative control techniques will be used and the most modern monitoring methods will be used. But we are also in a transition period. Some manufacturing techniques are as obsolete as the measurement methods to which the Senator refers. Some manufacturing techniques do not lend themselves to stack type emission controls. Their emissions must be limited by operating techniques and improved processes. These kinds of manufacturing operations may only be subject to subjective enforcement techniques such as "opacity" or visible emission judgments.
Mr. RANDOLPH. I thank the Senator for his understanding, and would he agree that there should be an effort to move away from these judgmental enforcement techniques whenever possible as quickly as possible?
Mr. MUSKIE. I would agree that we ought to have both stack gas controls and stack gas monitoring. We have modern technology and we ought to be applying it. Where it is appropriate to the source the States ought to be revising implementation plans to replace "opacity" and "visible emission" tests with continuous monitoring requirements. I would also suggest that enforcement based on such tests should be disallowed as soon as the source has installed effective continuous monitoring equipment.
Mr. RANDOLPH. It would be mighty useful to ask Administrator Train to review State plans to determine whether or not these kinds of tests can be replaced with more modern techniques. The cooperation of the chairman of our subcommittee in addressing this problem will be of great aid.
Mr. MUSKIE. I would join in that request. I think we should also have the Administrator determine what kinds of sources do and do not lend themselves to continuous monitoring and thus more sophisticated enforcement techniques. Perhaps as a result of such an inquiry we could lay the basis for either future administrative or legislative action.
Mr. RANDOLPH. I appreciate the support of the Senator. Hopefully with this kind of review we can determine the fairness and appropriateness of current enforcement techniques and assess the cost effectiveness of alternative methods to achieve the same result — that is air quality which protects the public health and welfare.