June 8, 1977
Page 18014
The Senate proceeded to consider the bill which had been reported from the Committee on Environment and Public Works with amendments.
The ACTING PRESIDENT pro tempore. The time for debate on this bill is limited to 8 hours, to be equally divided and controlled by the Senator from Maine (Mr. MUSKIE) and the Senator from Vermont (Mr. STAFFORD), with 2 hours on any amendment in the first degree, except an amendment by the Senators from Michigan (Mr. RIEGLE and Mr. GRIFFIN) on which there shall be 6 hours debate, and two amendments to be offered by the Senator from Nevada (Mr. CANNON) and the Senator from Colorado (Mr. HART), on which there shall be 4 hours debate each, and with 30 minutes on any amendment in the second degree, debatable motion, except a motion to recommit with instructions to be offered by the Senator from Alabama (Mr. ALLEN), on which there shall be 90 minutes debate, appeal, or point of order.
Mr. ROBERT C. BYRD. Mr. President, I suggest the absence of a quorum. I ask unanimous consent that the time be charged equally against both sides on the bill.
The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. The clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
Mr. MUSKIE. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, I ask unanimous consent that during debate and voting on S. 252, the Clean Air Amendments of 1977, the following staff members of the Committee on Public Works be granted the privilege of the floor; John Yago, Leon Billings, Philip Cummings, Karl Braithwaite, Charlene Sturbitts, Richard Harris, Haven Whiteside, Ronald Katz, Bailey Guard, Katherine Cudlipp, Richard Herod, Harold Brayman, John Freshman, Lee Rawls, Peter Gold, Kevin Cornell, Don Smith, and Vic Maerki.
The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, I yield myself such time as I may take
I bring before the Senate a bill which has evolved in the Committee on Environment and Public Works over the past 3 years.
As many Members will recall, 1976 Clean Air Amendments were approved by this body on August 5, 1976, only to be killed by a filibuster, also in this Chamber, on the last day of the 94th Congress. On that day, I stated that there would be no quick fix this year for the auto industry which had participated in killing the amendments that gave them the relief they needed to produce 1978 cars.
When the 95th Congress convened, I nevertheless took the more responsible course, and held hearings at which every party who so requested was given the opportunity to testify. I have expedited this legislation in every possible way.
But I warn all of the interests affected by this bill that no more quick fixes will be forthcoming. I will not consent to splitting off any portion of this legislation, should delay tactics be used by any Member of the Senate. Any such action cannot reasonably be construed as a simple need for more time to assess the bill. This bill is almost identical to the 1976 legislation. In fact, the two most controversial provisions, nondegradation and auto emissions, are in every significant detail identical to last year's bill.
Moreover, the committee report has been available since May 12, a period of 4 weeks.
S. 252 is the product of 18 days of hearings and 58 markup sessions since 1975. But this bill is, in a larger sense, the product of a lengthy learning experience we have had with the implementation of environmental laws.
During the 14 years that I have been chairman of the Senate Pollution Subcommittee, I have watched the evolution of environmental laws.
We began simply. We authorized the development of the Federal expertise necessary to understand the scope of environmental problems. We established programs to assess the development of State and local regulatory programs. We established a rudimentary Federal enforcement capability to deal with those environmental problems which did not respect jurisdictional boundaries. And, we began the process of regulating auto emissions — a task which required a Federal presence.
Our knowledge expanded. The public became more aware of environmental problems. The Congress attempted to respond to the public demand for a significantly greater level of performance in the pollution control effort.
In 1970 we enacted the landmark CleanAir amendments, which had three basic objectives: First, to achieve air quality which would protect public health; second, to establish specific regulatory requirements and precise timetables for achievement of those requirements; and third, to establish longterm public policy goals for air quality programs.
The Clean Air Act was the result of our belief that public confidence had to be restored in both the progress and the results of these programs. For too long, promises had been made and results had not been delivered. Autos which purportedly met stiff standards on the production line failed to comply after minimum mileage. Enforcement actions were tedious — the results ranged from limited to nonexistent. Examples of failure are too numerous to mention.
We had a choice: We could continue and try to improve past initiatives or we could change course and experiment with innovative methods which might achieve results at a more rapid pace.
The Clean Air Act of 1970 was a new departure.
We knew our goals. They had been established in 1967 when Congress asserted a national interest in achieving health related air quality standards in our own Nation's urban industrial areas and in maintaining clean air in regions in which air was still pristine.
The question we addressed in 1970 was how to achieve these goals — how to move from rhetoric to regulation; how to maintain public confidence.
We proposed and saw enacted in 1970 two basic tools — controls on emissions and establishment of deadlines. Emission controls replaced air quality standards as the enforcement mechanism; and deadlines provided the public with a basis against which to judge progress.For autos, this translated into statutory emission standards and fixed deadlines.
The 1970 amendments have brought considerable progress in controlling air pollution. On the Nation's 22,000 largest stationary sources accounting for 80 percent of all stationary source pollution, 19,800 were in compliance with emission regulations or were meeting compliance schedules by mid-1976.
Between 1940 and 1970, controllable particulate emissions increased 15 percent, sulfur dioxide, increased 50 percent, carbon monoxide and hydrocarbons emissions more than doubled, and nitrogen oxide emissions quadrupled.
Since 1970, these increases have been curtailed. Total emissions of some pollutants have been reduced. We should take pride in these accomplishments. But in most cases, these improvements will be temporary. By mid-1975, the national ambient air quality standards for all pollutants had been fully achieved in only 91 of the Nation's 247 air quality control regions. Emissions from new growth will reverse this progress unless further efforts are made to control pollution.
The real test of pollution control comes now — years later. Whether or not the legitimate gains made can be held is uncertain.Those victories and those precedents are now under attack.
Many believe that the Clean Air Act is basically a sound law. I share that. belief. Its premises — the protection of public health and welfare from the adverse effects of dirty air and the maintenance of clean air in areas where air quality has not been degraded — have been broadly accepted.
In order to assure the Congress that the requirements of the 1970 act were justified, the Senate Public Works Committee contracted with the National Academy of Sciences for a $500,000 study of air quality standards. That study was presented September 1, 1974. Its analysis has been confirmed time and time again by EPA and independent health scientists, most recently in February 1977.
The Academy reached these conclusions:
First. Evidence accumulated since the enactment of the 1970 amendments supports the ambient air quality standards which were promulgated as a result of that act;
Second. Safety margins related to health associated with those standards are only marginally adequate;
Third. Susceptible groups in the population which may be adversely affected by unhealthy air constitute about 40 million people;
Fourth. Best estimates indicate that air pollution causes 15,000 excess deaths per year, 15 million days of restricted activity per year, and 7 million days spent in bed; and
Fifth. Health effects of automobile pollution alone cause 4,000 deaths per year and 4 million illness restricted days per year.
The Nation still experiences the problems which led Congress to adopt the firm approach of the 1970 amendments :
In the summer of 1975, the State of Iowa experienced its first air pollution alert.
In the summer of 1975, the Washington, D.C., area suffered its highest recorded single-day level of photochemical smog in history. The 8-day alert was the area's second longest ever.
There is no industry in Washington, D.C. This is auto related air pollution.
A study released in August of 1975 by the Environmental Protection Agency reported that in small towns in Maryland, Ohio, and Pennsylvania, air quality standards are exceeded about 50 percent of the time. On the basis of these studies, the Administrator of the Environmental Protection Agency concluded that—
It may be necessary to expand to an areawide (multi-State) basis some of the pollution control measures now in effect only in urban areas.
In July 1976, EPA notified 45 States that their implementation plans were inadequate to achieve one or more of the health standards. This means that many States which appeared to be making progress toward clean air are actually dirtier than first thought, and have much further to go to achieve clean air.
In 1973, EPA projected for the city of Baltimore, Md., that total hydrocarbon emissions would go down 65 percent and total carbon monoxide emissions would be reduced 35 percent by 1977. However, actual mid-1977 figures show that the total of hydrocarbons and carbon monoxide from vehicles has actually grown more than 200,000 tons, a combined increase of 35 percent.
The New York Times reported on November 20, 1975, that as many as 30 industrial plants in the Pittsburgh area cut back operations to alleviate emergency levels of air pollution which were the highest concentrations ever recorded in Allegheny County since the establishment of its monitoring system in 1971. An alert is called when the air quality index reaches 100; the readings from November 17 through 20 reached 249.
Over the past 3 years, at least 261 cities have experienced violations of the public health standard for one or more auto related pollutants. I would like to include at the end of my statement a list of those cities which shows exactly how severe the violations have been.
The Environmental Protection Agency has determined that at least 14 excess deaths occurred during the 4-day episode, as a result of the emergency particulate levels. In addition, hospitals received increased complaints of headaches, choking, and stinging eyes. Those with respiratory ailments, pregnant women and infants were warned to stay indoors.
This situation closely parallels the 1948 Donora, Pa., episode during which 20 persons died and nearly half of the area's 13,839 residents became ill. Both incidents provide a striking example of the continuing problems that remain in achieving healthful air in this country.
The continuing smog in the Los Angeles, Calif., basin provides evidence that once air pollution levels are allowed to rise, extreme efforts are required to reverse such conditions.
At the same time, the pollution control requirements required by the Clean Air Act and other environmental statutes provide new jobs. At a time when the economy has 7 percent of the work force unemployed, additional expenditures required by Federal regulations create jobs. The effect will be to hire workers who would otherwise remain on unemployment compensation.
Statistics of the employment produced by pollution control programs have been collected by the Council on Environmental Quality. CEQ concluded from these studies that "over 1 million jobs were associated with air and water pollution programs last year." This analysis indicates that $1 billion generates 70,000 jobs directly and indirectly. Some estimates place the employment impact as high as 82,000 jobs per $1 billion.
Other studies estimating the overall impact of air and water pollution control requirements have indicated that impact on inflation will be minimal, and the impact on economic growth and unemployment will be positive.
I raise these two questions because many of the attacks on the goals of the Clean Air Act are keyed to opposite conclusions.
A study done by Chase Econometric Associates in January 1975 indicates that when averaged over the decade ending in 1982, the Consumer Price Index will have risen only two-tenths of 1 percent because of pollution control expenditures. The gross national product was 1.6 percent higher in 1975 due to pollution control expenditures. The effect is projected to diminish by 1982, when the gross national product will be virtually unaffected. The net effect of pollution control expenditures is characterized in the Chase econometric report as "being rather modest." While some specific companies and facilities may have substantial costs, it is useful to place such individual costs against the more comprehensive background supplied by the Chase econometric study. As further background on the employment aspects of these expenditures, the appendixes contain a February 1976 report entitled "Pollution Control and Employment" prepared by the Council on Environmental Quality.
The basis of the Clean Air Act remains valid. Poor air quality still affects the health of millions of Americans. Cleanup efforts are reversing these conditions, the air quality goals have been reconfirmed by panels of experts, and the positive economic impact has been demonstrated.
The challenges to the premises of the act have been limited, but there has been a campaign to eliminate the regulatory and enforcement tools necessary to achieve those public policy objectives.
The bill before the Senate reflects these conflicting pressures. For example, we voted to give cities more time — more time to utilize new transportation modes — more time to improve existing public transit systems — more time to provide transportation alternatives. We had to do this because the problem of auto pollutants is far worse than we envisaged in 1970 and control is elusive.
At the same time, we voted to give the auto industry 2 more years to achieve statutory standards — 2 years to overcome technical problems — to begin to deal with the fuel economy problem and to recover from the economic troubles of 1974-75.
I had hoped that we would not have to give the auto industry that much time — that they could have produced some clean cars in 1978 — that we would have had an opportunity to test our new technology for a couple of years before it was required across the board. But that approach did not prevail.
We also revised the enforcement sections of the act — revisions which are encouraging. We voted to provide more time for stationary sources to achieve applicable emission limits. But, in return for a new outside deadline of July 1, 1979, which for some polluters is only a 13-month extension, we have proposed two new penalty features.
A difficult issue which the committee was asked to resolve was the question of nondegradation. As I have indicated, this controversy involves the extent to which national policy requires protection of air quality in clean air areas. This policy was an essential element of the Air Quality Act of 1967.
The committee voted to make specific the requirement that clean air areas be protected. We determined that each new major plant should be required to use the best pollution control technology available and that the impact of each new plant's emissions should be evaluated against a national nondegradation standard.
The committee confirmed that new air pollution sources have a special responsibility to preserve air quality values, both to avoid a repetition of the past air pollution mistakes that now plague our urban areas and to protect the capacity of our clean air resource to provide margins for future growth.
This decision was a victory for environmental quality. It comes at a time when Congress is being asked to sacrifice environmental initiative for economic recovery even though there is little demonstrable relationship between the two.
The members of the committee heard allegations that the Clean Air Act and other environmental legislation pose unacceptable limits on this country's capacity to grow. The committee examined these allegations and found them false.
Mr. President, I would like the record to show that an economic growth policy which abandons environmental objectives would be a foolish course. The Nation must have clean growth. The studies conducted by the Environmental Protection Agency indicate that adequately controlled facilities of all industrial categories can meet the nondegradation requirements in these amendments.
If the price of clean growth, however, is to restrain the size of particular activities pending the development of new pollution control technologies or new production procedures, then new technologies and processes can and will be developed in order to take advantage of the economies of scale. A great Nation's growth cannot be measured only in terms of new production capacity; it will ultimately be measured by how well growth preserves the quality of areas the American people cherish.
Conversely, if environmental objectives are abandoned simply to accommodate the economies of scale, new pollution control technologies will not be developed, and the result will be environmental chaos. The effect of failure to take account of the environmental implications of future growth is well demonstrated in the chart entitled "Added Emissions Over 1975". This is shown in Attachment A.
This chart shows that, if electric generating capacity increases at a rate of 6 percent per annum and new fossil fuel fired power plants only meet EPA's new source emission performance standards, there will be an additional 7 million tons of sulfur oxides actually discharged to the atmosphere each year.
Even with a more moderate growth rate of 4.8 percent per annum, there will be an increase in emissions of 5 million tons ofsulfur oxides per year between now and 1990, again assuming that only new source performance standards are required. If the States act aggressively to require more strict control, then — but only then — added emissions of sulfur oxides can be less than 3 million tons per year.
I would like to underscore this point. Even if the most moderate growth rate is projected and even if the States are most aggressive in the application of technological requirements as allowed by the committee bill, there will still be an increase of 2.8 million tons per year of sulfur oxides to the atmosphere nationally.
The second part of this chart which will be displayed in the Chamber in the course of debate, which relates to nitrogen oxides indicates similar trends, though in that chart we have had to factor in the implications of various auto emission control strategies.
I only note that there is but a small increase in the emissions of NOx when new statutory NOx standards for automobiles in this bill are compared with the old standards. But, if the auto industry proposals to freeze at 1977 NOx standards was adopted, there would be 23 million additional tons per year.
However, a combination of 1.0 grams per mile auto NOx standard proposed in this bill and an effective stationary source control program would limit the additional of oxides of nitrogen emissions to 9 million tons per year by 1990. Emissions in 1990 would approximately double their present level. That is, under the committee bill.
These projections show that, under almost any level of expected growth, the Nation will face increasing emissions of sulfur oxides, nitrogen oxides, and other pollutants. Thus, it is essential to select a strategy that reduces the increase as much as possible.
So that even the committee bill does not eliminate any increase. It simply reduces it. And those that would soften the requirements would increase the pollutants above present levels.
If we have learned anything from our environmental effort to date, I would hope at least that we have learned that we have to achieve a net reduction in gross national emissions to the atmosphere as soon as possible.
Application of the best available control technology is a strategy that can do this. As incorporated in this bill, prevention of significant deterioration and application of best available control technology combine to provide a strategy which will leave room for future growth and thus to facilitate growth, not a strategy to limit growth.
The environmental effects of air pollution, Mr. President, will be discussed in more detail later; however, the facts on the record clearly suggest that subtle and irrevocable changes are being made in man's basic life support system as the result of uncontrolled dispersion of pollutants into the environment. Almost without exception, research into the effects of dispersal of these pollutants has given us more, rather than less, evidence of adverse effects. To ignore these problems because they are not fully understood is to court catastrophe.
The National Academy of Sciences report of March 1975 concluded that controls to avoid such broad adverse effects are justified. It only takes one disaster of the scope of the current "Kepone" crisis, Mr. President, to demonstrate that environmental damage once done may be irreversible.
Clearly, the burden of environmental protection should rest with those who use environmental resources. The cost of control ought to be borne by those who produce the problem. The polluter should bear the responsibility to show that use of the environment for dispersal of wastes is free from risk.
The structure of these amendments supports these objectives. Let me discuss some specific issues regarding the committee bill.
NEW EMISSIONS IN AREAS EXCEEDING STANDARDS
This year the issue that drew the greatest attention during the working sessions of the committee was the issue of new emissions in areas exceeding standards. The provision contained in the bill reported by the committee last year dealt only with the expansion of existing facilities in such areas.
The committee this year determined that a broadening of that provision was necessary so that new sources, without any existing facilities in the area, could still enter the area and construct new facilities under carefully limited procedures and meeting stringent requirements. The committee adopted a provision which provides protection for air quality while at the same time allowing new sources to be constructed.
This new provision — section 13 of the bill — has five key features:
First. Where State plans have not attained the standards, new, more stringent plans must be submitted by January 1, 1979;
Second. Existing sources in such areas must use all reasonably available controls;
Third. New facilities must meet the lowest achievable emission rates;
Fourth. Emissions from each new source must be more than offset by reductions from existing sources; and
Fifth. The Administrator may waive the offset requirement if the State meets criteria specified in the provision and agrees to achieve annual reductions in emissions in the area sufficient to provide for attainment of the standards within the deadline established.
This provision relates directly to two other important parts of the air pollution control strategy. These are automobile standards and transportation control measures. The relaxations given to the auto industry in past years are a substantial part of the reason that many areas of the country presently exceed standards. Further relaxation of auto standards will make the siting of new sources in such areas extremely difficult and even impossible in some cases. Such delays would also place increasing pressure on the utilization of transportation control measures.
The provision dealing with new emissions in polluted areas is directly related to the transportation control provisions contained in section 7 of the bill. All States with inadequate plans must submit revised plans by January 1, 1979. Such plans must contain measures that will provide for attainment of the standards by 1982. In the case of oxidant and carbon monoxide, where the case is clearly made that a further extension is necessary, the State may be given up to July 1, 1987 to comply with the standards for oxidant and carbon monoxide. In gaining such extensions, all reasonable transportation control measures must be adopted, and review of alternative sites for proposed facilities must also be contained in the new source review process.
Control of pollution in urban areas depends on strict control of the automobiles, improving control technology on stationary sources, and incorporating all reasonable transportation control measures to minimize unnecessary travel and pollution. These are all important elements in attaining clean air and cannot be considered separately.
In December of 1976 EPA published its policy requiring new sources to gain offsets from existing sources prior to approval for construction. This concept of requiring offsets was incorporated in the clean air amendments presented to the Senate last year. The offset requirement in those amendments was limited to existing sources. The owner was required to clean up its existing sources so as to make room for the expansion. That concept was broadened in EPA's regulations, and continues in the requirements of the bill before the Senate.
The 1970 Amendments to the Clean Air Act clearly anticipated the need for a policy regarding the review and approval or disapproval of new sources making application for construction in
areas dirtier than ambient standards. The requirement is specific in the law.
A State implementation plan must provide for attainment and maintenance of the primary and secondary standards. In order to assure attainment, the plan must have a procedure for review, prior to construction, of the location of new sources. The procedure for review must contain "adequate authority to prevent construction or modification of a new source which will prevent" the attainment or maintenance of national ambient air quality standards.
The 1970 amendments required attainment of the standards as expeditiously as practicable but not later than 3 years after the date of approval of the State implementation plan. For most States, that deadline was May 31, 1975.
When the Administrator obtains information that the plan is inadequate to achieve the standards, he must require its revision, and that revision must call for a new attainment date, no later than 3 years after the date the revision is approved.
The pieces of this policy fit together smoothly in the 1970 amendments. There is little room for ambiguity. The relevant provisions are all included in section 110 and are subsections (a) (2) (A), (D) and (H) ; and (a) (4) (A).
For the first 4 years after the 1970 amendments, States and EPA conducted rather spotty review of new sources in dirty air areas. In 1975 EPA began discussing with its regional offices and States the need to provide coherence in new source review.
EPA then published in December 1976, an interpretative ruling for immediate national guidance and a notice of proposed rulemaking on regulatory changes involving preconstruction review of new or modified air pollution sources. The policy would make industrial growth possible in heavily polluted areas.
The bill before the Senate contains greater flexibility than the EPA regulations governing new sources. The entire EPA offset policy can be waived for a more flexible system of annual reductions in emissions if the State meets the requirements for such a waiver. This adds important flexibility to this policy. Second, even when the offset policy requirement of case-by-case tradeoffs is being utilized, one of the key elements of such policy has been modified. The EPA regulations require that any existing source involved in a tradeoff must first apply reasonably available control technology. Only credit that occurs for cleanup beyond such reasonably available control technology can be credited toward an offset for the new source. This would place sources in a guessing game of looking forward to anticipate what kind of control would qualify as reasonably available control technology.
The Senate bill makes an important modification in this policy. The only controls required on existing facilities are those contained in the existing State implementation plan. Any controls that clean the source beyond the levels required in a State plan can then be credited toward the new source. This will allow considerable flexibility for new sources compared to the present EPA regulations.
As an example, in the next 2 years, prior to the submission of revised plans by States, a new source can find existing sources that are not regulated at all under the present State implementation plan. It can then clean up these sources or arrange for the State to require such cleanup. The reduction will be credited to the emission offset applying to the new source. This will serve to help identify previously unknown sources of emissions and give an incentive to industry to assist in the effort of finding and controlling such sources.
For many sources having difficulty finding offsets under the present EPA regulations, this provision could well mean the difference between approval and denial of the source's application.
The waiver which would allow States to set aside the offset policy may only be issued by the Administrator if the State has an adequate inventory of sources. While all States have some kind of inventory, very few, if any, yet have the kind of inventory necessary to qualify for such a waiver at present, though many are improving those inventories.
One of the great difficulties in attaining the oxidant standard, which is the smog that dominates cities such as Washington, Los Angeles, and Houston, is that many of the stationary sources that emit hydrocarbons that eventually form smog have not even been identified. The present EPA emission offset policy has led to the discovery of many such sources. These sources have been proposed to be cleaned up as emission offsets for new emissions. They were previously unknown as sources of hydrocarbons. Two examples include transfer operations in the tanker transportation of petroleum products and the use of a water base instead of volatile solvents in asphalt products.
States must make more substantial effort than has occurred in the past to actually identify all sources of hydrocarbonsas well as other pollutants — prior to the Administrator granting the approval of a waiver from the tradeoff policy. The Administrator must carefully monitor the program of any State that receives a waiver, and should notify the State at any time he deems it necessary that it is in jeopardy of losing its waiver. If upon any annual assessment — annual assessments are required — the State has not met the proper annual emission reductions, the Administrator has no choice but to revoke the waiver and reinstitute the new source review policies applicable.
The committee had considerable discussion about the requirements that would apply during the period that a waiver was granted to a State. The committee determined that it was essential that the State be required to make emission reductions that would provide for attaining the standards within the time required. If a source can attain the standards by 1982, then annual reductions must be sufficient to lead to the attainment of the standard by that date.
If an area has received an extension to 1987 under section 7 of the bill, then the annual reductions must be sufficient to attain the standard by that date. Only by requiring such a clear connection between the health standards and the deadlines can enforcement of the act be effective.
Discussion in the committee was extensive about the desirability of simply assuring progress toward standards. During that time the committee received a letter from Mr. Douglas Costle, the Administrator of the Environmental Protection Agency. Mr. Costle said the following:
Concern has been raised as to whether one such criteria which requires that emissions in the region "be reduced on an incremental basis so as to assure reasonable further progress toward attainment of the applicable standard within the time required," in effect postpones indefinitely attainment of the national ambient air quality standards. I would strongly oppose any amendment which would eliminate a date certain by which national health standards must be attained, because such an amendment would limit our ability to protect public health.
Attached to this letter was a legal memorandum prepared by the General Counsel of EPA. That memorandum cited the necessity for firm final deadlines for compliance with health standards. Such final deadlines have been important to successful litigation against polluters in the past. The final paragraph of that memorandum summarizes the necessity of having firm final deadlines:
"It is clear from the Union Electric case and Train v. NRDC, 95 S.Ct. 1470 (1975), that the Supreme Court found the Act to be of a technology forcing character primarily because of its firm deadlines. And it is clear that the Court in Texas v. EPA, 499 P.2d 289 (5th Cir. 1974) would not have upheld stringent vapor recovery regulations for ship and barges, for which the Court (per Bell, J.) recognized that the "necessary technology is not presently available," were it not for the Act's "absolute command that the national ambient air quality standards be met by 1977." 499 F.2d at 312, 317. In fact, Judge Bell's decision required EPA to postpone certain measures not deemed reasonable by the Court until the final statutory attainment date. This decision bolsters our concern that if the firm statutory deadlines are nullified, every air pollution control measure imposed by EPA or a State would be held hostage to legal challenges and possible reversals on grounds of judicially perceived "reasonableness." The net effect could only be further delays in ever attaining the Act's health standards.
The new source review policy announced by EPA December 21, 1976, was greeted with a storm of protest from industry. Many claimed that such careful scrutiny of new sources would make it impossible for such facilities to be built.
The record of the past few months disproves such charges. During the deliberations of the committee on this issue, Members heard first that this policy was going to kill the siting of a large General Motors assembly plant in Oklahoma City. Because of the paint spraying and coating operations in the assembly plant, the facility would emit 3,100 tons of hydrocarbons per year. But rather than "killing" this facility at the Oklahoma location, the EPA policy actually led to a strong effort by the local chamber of commerce which persuaded oil companies in the area to control storage tanks and other petroleum facilities so as to provide a tradeoff for new emissions. The plant has been approved.
The committee heard that a Volkswagen assembly plant planned for Pennsylvania would also be killed by these requirements. But only after the committee reported the bill, word came that the State of Pennsylvania had found that by switching to a latex base asphalt in highway construction, enough new controls of hydrocarbons could be obtained so as to make room for the Volkswagen plant.
The committee has heard that the Sohio proposal for building storage facilities for Alaskan pipeline oil in Los Angeles could not be built under EPA's policy. Yet every month or so we hear of additional sources that have been "discovered" which could be controlled as part of an offset for the new Sohio plant. If enough such new discoveries occur, the plant can be built.
The tradeoff policy will provide a unique incentive to discover and control previously uncontrolled emissions. With the large number of sources that still remain uncontrolled, the tradeoff policy will provide a useful incentive to discover and control such sources.
Under the committee bill, no new sources may be built in the State after July 1, 1979, if the State is not in compliance with the steps required by these amendments.
The bill places strong guidance upon the State to control emissions from new and existing facilities in areas exceeding standards. The State may only approve new sources if the State is following, implementing, and enforcing the requirements of the State implementation plan that is approved or promulgated by July 1, 1979. This requirement is contained in the new section 113(G) (d).
This does not mean that all sources in the area must be in compliance; that might be a desirable goal, but it would also mean that any single source, if not on its compliance schedule, could preclude growth for the entire area. The enforcement procedures of the act, and the amendments setting forth delayed compliance penalties contained in these amendments before the Senate, are addressed to the problem of such recalcitrant sources.
The provisions governing new emissions in these areas do require that sources with existing facilities have such sources in compliance or on approved compliance schedules. The Clean Air Act requires that Federal facilities comply with State plans. This provision means that for any agency with pollution control problems, its facilities in the State must also be on approved compliance schedules prior to construction of new facilities. This is consistent with the requirements contained under section 118 of the act and the amendments to that section contained in the bill presently before the Senate.
The committee report identifies the intent of the committee regarding case-by-case analysis of new sources. It is important that even in the period after new plans are approved in 1979, States adopt procedures which allow clear accounting systems for the emissions of new sources compared to reductions from existing sources. While the specific tie of one particular new source with specific existing source reductions at identifiable sites is not necessarily required in this post 1979 period, the State is required to keep a strictly controlled "balance sheet" which shows that no more new sources are approved than can be accommodated within the growth margins allowed under the State plan. This is the only mechanism that will assure that the State plan actually does lead to attainment of the standard within the time required. Otherwise, States will continue to "overdraw" the credit account derived from reducing emissions on existing facilities.
This entire process of allocating air as a scarce resource is new. It is a change in outlook that must become dominant if we are to attain clean air. We cannot continue to add emissions in areas that are already exceeding standards and pretend that such areas will ever protect public health. The committee provisions, while allowing greater flexibility than the EPA requirements, establish controls more stringent than the new source review process that existed prior to the December 1976 ruling by EPA. We must not return to the old days of inattention to such important balance sheet accounting in the allocation of air resources.
A State may use a mechanism other than the case-by-case review method to accommodate growth if its plan provides for an overall improvement in air quality and emissions on an annual basis at a rate sufficient to provide for attainment by the new deadlines. Under this provision, a State must show that the total allowable emissions under its plan are less than current actual emissions and will be reduced still further each year so that air quality standards will be met by the dates required.
In calculating total allowable emissions, the State or the source will identify the total of emissions allowed under the State's plan from facilities which are covered by emission limitations. For those facilities or portions of facilities which are not covered by emission limitations, the allowable emissions will be the actual emissions from the unregulated portion of the facility prior to the construction request.
The committee adopted the term "lowest achievable emission rate" as the technology-based requirement for new sources or modifications in nonattainment areas in recognition of the fact that, given the risks to public health in such areas, additional pollution sources must be required to minimize their emissions. New sources and modifications must employ systems which achieve the greatest emission reductions possible, even if such systems may be more costly than other less effective systems. In setting new source standards of performance, EPA historically has given considerable weight to cost factors. In the committee's opinion it would be an inappropriate policy to permit costs to be weighted as heavily in defining control requirements in nonattainment areas where public health is at risk. In establishing control system requirements for new modified sources in nonattainment areas, the Administrator is to consider the costs of such systems only to a very limited extent. For example, certain control requirements might be deemed not achievable if the proponent of the source was able to demonstrate that the costs of such controls were so high that the proposed facility could not be operated at a profit.
The new amendment would allow a new source if the new facility uses the best available control technology, if existing sources meet all applicable emission limitations, and if total cumulative emissions will be sufficiently less to represent reasonable progress toward attainment of the standards. Sources resisting compliance will now have an incentive to end that resistance, since the desire to expand at existing facilities is based upon the economics of industrial expansion.
When the owner of sources in an area exceeding health standards applies for approval of a new source in the area, it is important to assure that all applicable emission limitations are met at existing facilities owned by that owner. The statutory language is quite clear. The amendment requires that all of the State requirements be met. These include limitations on visible emissions and opacity levels as well as all other types of emission limitations contained in the State requirements. The bill language makes no distinction between emission limitations which relate to the primary standard and other emission limitations. Such a distinction is not authorized.
State implementation plans usually contain a unified set of requirements and frequently do not make distinctions between the controls needed to achieve one kind of ambient standard or another. To try to separate such emission limitations and make judgments as to which are necessary to achieving national ambient air quality standards assumes a greater technical capability in relating emissions to ambient air quality than actually exists.
A Federal effort to inject a judgment of this kind would be an unreasonable intrusion into protected State authority. EPA's role is to determine whether or not a State's limitations are adequate and that State implementation plans are consistent with the statute. Even if a State adopts limits which may be stricter than EPA would require, EPA cannot second-guess the State judgment and must enforce the approved State emission limit.
In fact, in many areas where this provision will be used, such as steel facilities, it is highly possible that even when all applicable emission limitations contained in the State implementation plan have been met, the ambient standard may still be exceeded. This is particularly true where both opacity limitations and limitations on visible emissions are used as a means of enforcing emissions reductions to attain ambient standards. Any attempt to make a distinction between emission limitations on this basis would, in all likelihood, have the effect of undermining pollution control efforts at such facilities. That is one reason the statutory language makes no such distinction.
A key aspect of the amendment allowing new sources in the period prior to July 1, 1979 is the requirement that reasonable further progress toward attainment of the standard must result from the new scheme. This means that further control of existing facilities, development of further production process controls, and new innovative control techniques must be applied on all sources, including all "fugitive" emissions, before the condition of "nothing further" is met. It is also the intent that "reasonable further progress" means pollution control will reduce emissions at a rate that will lead to attainment of the ambient standards in the time required.
III
EXTENSIONS FOR OXIDANT AND CARBON MONOXIDE CONTROL
Transportation and land use controls were authorized as air pollution control mechanisms by the 1970 act. The Congress recognized that air pollution problems of many urban centers were the cumulative result of development patterns encouraged and sustained by the private use of automobiles.
We knew in 1970 that air pollution problems were extensive in many areas and would require the use of these controls. in ways that could require substantial changes. The Senate report in 1970 said this:
Land use policies must be developed to prevent location of facilities which are not compatible with implementation of national standards.
Transportation policies must be developed or improved to assure that the impact of pollution from existing moving sources is reduced to the minimum compatible with the needs of each region. Construction of urban highways and freeways may be required to take second place to rapid and mass transit and other public transportation systems. Central city use of motor vehicles may have to be restricted.
When carried out properly, such controls are a positive tool. The requirements of the 1970 act could have been the stimulus for beneficial uses of land and transportation in environmentally compatible ways.
This opportunity was not seized. The Administrator initially allowed States to put aside development of transportation control plans. That action was overruled by the U.S. Court of Appeals for the District of Columbia on January 31, 1973. States adversely affected by mobile source related pollutants were required to develop and submit transportation control plans which provided for the achievement of primary ambient air quality standards no later than 1977, the final date in the statute. This belated effort to require transportation controls and land use regulations to prevent further deterioration in air quality resulted in many EPA promulgations in the absence of adequate State action. This caused a furor.
In addition, the limited time available for submission of plans, the controversial nature of many of the measures contained in the plans, and the magnitude of the pollution problem in many metropolitan areas made this task extremely difficult.
In order to adjust the transportation control requirements to the difficulties of implementing such policies, the committee has adopted an amendment which provides more flexibility, more local involvement, more time, and more State discretion in fashioning these strategies. The bill requires the adoption as rapidly as practicable of all reasonable transportation control measures in areas where such measures are necessary.
Under the 1977 amendments, the States will establish and the Administrator will approve designation of areas which fall under four different classifications. The first classification will be areas where transportation control plans will be required. The second and third categories are covered by section 110(c) of existing law and the last category will be nondegradation areas.
States are required to involve local communities in the selection of strategies contained in transportation control plans.
The key tests are that all reasonable requirements are contained in the plan and are implemented as expeditiously as practicable. If the State plan does not meet these tests, the Administrator shall promulgate an implementation plan for the area after consultation with State and local elected officials.
A new provision would allow the States to apply to the courts for a stay of any provision of such an EPA promulgated plan, pending review of that plan in the courts. Grants of 100 percent funding are available to local planning organizations to help implement this provision.
In order to assure that this new flexibility and additional time are used effectively, the Secretary of the Department of Transportation is required to withhold highway funds for projects after January 1, 1979 if the Governor has not submitted a revised implementation plan where such revision is required.
In the event that a State — or region — does not implement the requirements of an approved plan, the Secretary is required to decrease by 15 percent annually the highway funds for any project in the region in question. Other Federal agencies must assure that the funds provided for federally approved projects are expended so as to conform with approved transportation control plan requirements.
The control requirements in this provision have been integrated with requirements for improved State plans dealing with all sources, so that review of new sources and transportation controls are treated in a consistent fashion. For oxidant and carbon monoxide control, the new subsection 110(h) will allow limited extensions to 1987 where necessary for these two pollutants.
Adjusting the Clean Air Act to provide a more acceptable plan of implementing transportation controls was frustrating. The committee recognized that relaxation of deadlines would cause millions of people to be exposed to unhealthy levels of air pollution. Yet, to continue with the present deadlines could create equally unacceptable adverse public health and welfare implications.
The committee action is a compromise assuring that reasonableness will guide transportation control strategies. Further relaxation would not provide adequate public health protection at an early enough date. Any further compromise of transportation control requirements would allow unhealthy levels of pollution in cities for far too long.
The selection of measures to be used is to be made initially by State and local governments. The bill does not specify the "reasonable measures" to be adopted. However, the Administrator cannot reject any measure selected at the State or local level because he considers it to be unreasonable. If it is adopted by the State or regional agency, then it is reasonable.
Conversely, the Administrator may determine that all reasonable measures have not been adopted. In this case the Administrator is required to promulgate additional reasonable measures. The court will ultimately rule on any disagreement between the affected State or local agency and the Administrator as to the reasonableness of an EPA proposal.
The definition of what is a reasonable measure will relate to the adverse social and economic impact that would occur through its use.
While it is not possible to completely define this concept, it is possible to provide some boundaries. The adverse impact must be widespread and general. It must also be of sufficient duration to cause substantial difficulties. Some dislocation and disruption frequently occurs during the beginning stages of any control program or any change in transportation patterns. This interim impact is not justification for ruling that a measure is unreasonable. The adverse impact must be of a continuing nature. The difficulties that initially occur during the transition period during implementation of strategies are not sufficient to meet this test.
The committee bill injects additional flexibility into the initial planning process by requiring local involvement in the development of transportation control plans at the outset, with a more limited EPA role throughout. We have shifted much of the burden to the States and localities in an effort to overcome past failures.
Many of the transportation control plans now in existence for the communities have been tested in the courts. It is not the intent of these new amendments to interfere with or void any requirements which have been upheld by the courts or which were not timely challenged under the existing law.
Several decisions invalidating certain transportation control measures promulgated by EPA were appealed to the Supreme Court. After briefing and argument of the cases, the Court declined to decide them on the merits. The Court noted that EPA intended to revise the regulations in certain respects, vacated the judgments below, and remanded the cases for further proceedings. As a result,some of the basic legal issues in this area have not been finally resolved.
In view of the time that has elapsed since enactment of the 1970 amendments, it is regrettable that legal uncertainties have held up implementation of inspection and maintenance programs and other necessary measures. EPA's authority to promulgate transportation control measures requiring the States to take action, where necessary, and to compel compliance with such requirements, where necessary, is clear in sections 110 and 113 of existing law. Although this is a delicate area of Federal-State relations, it is appropriate to require affirmative State action in the field of transportation controls where this proves necessary to protect the public health.
By providing roads and highways that facilitate and encourage extensive use of motor vehicles, the States have played a substantial, if unintentional, role in causing the pollution problems that result. And, as a practical matter, State and local governments are in a better position than EPA to attack those problems, which involve millions of motor vehicles, through inspection and maintenance programs and similar measures.
In addition, the scheme contemplated by the act is a reasonable approach to this problem, one that is designed to involve the least possible intrusion into State affairs consistent with the task that is necessary. The 1970 amendments were carefully drawn to provide the States with maximum flexibility and discretion in developing plans under section 110 of the act, so long as the essential objective — attainment and maintenance of the national ambient air quality standards — was met. Thus, the States may make the basic policy choices, if they wish, in developing inspection and maintenance programs and similar measures; Federal promulgation is required only if the States default.
For all these reasons, I hope that further progress in this area will not be stalemated by legal uncertainties, and I urge EPA to continue to press for implementation of the necessary programs.
It should be noted that the various mechanisms provided to induce voluntary State implementation of approved or promulgated measures, such as cutoffs of highway funds for failure to implement such measures, are intended to provide alternatives to injunctive actions under section 113, thus allowing the Administrator to avoid compulsion where he believes that implementation can be assured by other means.
The Administrator will be receiving plan revisions which may call for his action prior to the publication of the information documents required by these new amendments. In such cases, the Administrator is not required to wait for the publication of the information documents.
Information has been gathered over the last 4 years on transportation control measures. That information will serve as the basis for the Administrator's decision until it is replaced by the new information documents.
The plans submitted by States must be reviewed by the Administrator under section 110(a) of existing law. This means that the Administrator must review and approve or disapprove transportation control plans within 4 months after submittal. In addition, the date for submission of new plans is an outside date. The Administrator may seek earlier submission where it is appropriate. This authority is to be exercised only where processes are already underway which would make an earlier submission more appropriate.
For example, the January 1976 letter received by the committee from the Environmental Protection Agency during consideration of these amendments, indicated that transportation control plans were under development in nine cities where such plans were not previously required. All of these cities received notice of the need for action in 1973. The data which has been developed to justify the provisions contained in such plans would be obsolete and would have to be gathered again if submission of control plans is not required prior to 1978.
LAND USE
The reported bill revises the basis on which land use controls are to be used to assure that land use decisions be made at the local level. The 1976 amendments place EPA's authority to promulgate land use regulations in a new perspective. Land use questions are to be resolved at the State and local level. Federal action is to occur only when the State fails to act or there is a demonstrated inadequacy in the State program to achieve or maintain a health related level of clean air.
Even this restricted authority does not extend to land use planning in any conventional sense.
While EPA may require land use controls for maintenance of primary air quality standards or for prevention of further deterioration from such standards, this authority only applies in the absence of appropriate State action. It does not require Federal planning. At most, the Federal role will be limited to an examination of the air quality impact of a particular site location decision.
The Administrator is required to consider the potential energy, environmental, and economic impact of such controls prior to their imposition. This is new guidance provided in the 1977 amendments. It does not affect the review of new stationary sources under the existing requirements of section 110 of the present law.
These amendments provide the assurance that improper land use controls will not be authorized under the Clean Air Act. It also assures that proper land use controls can and must be used where necessary to protect public health. Specific decisions regarding construction ofa facility must be reviewed to examine the associated effects of that facility. This is not a requirement for land use planning, but a requirement for examining the air quality impact of land use decisions. That is an important distinction.
LONG TERM BENEFITS
The proper design of communities and transportation systems can yield numerous benefits. In addition to significant air quality improvements, it can mean less money spent traveling because destination points are less scattered and more accessible. It can mean less commuting from home to office and thus less consumption of scarce energy. It can mean increased freedom for residents who have access to adequate public transportation. It can mean reduced costs for supplying sewer connections and other basic services.
A study conducted of the Washington, D.C. metropolitan area stresses that if new growth is directed to the areas where the new mass transit system is being constructed, the air pollution impact of new growth could be drastically reduced. Such action could yield a 50 percent reduction in the increased vehicle-miles traveled projected for the Washington, D.C. area. The sober side of that calculation is that, unless such policies are encouraged, pollution in the area will be much worse than at present even with clean cars.
IV
NONDEGRADATION
A nondegradation policy was articulated first in Federal water pollution law. That was in 1965. The concept was incorporated in the 1967 Air Quality Act, which stated that a basic purpose of the act was to "protect and enhance the quality of the Nation's air resources." Guidelines to prevent degradation of clean air were issued in 1969. The statutory basis for those guidelines was not altered by the 1970 clean air amendments.
In 1971, EPA proposed new guidelines to prevent significant deterioration for air quality implementation plans, but this requirement was deleted before final guidelines were promulgated. A court challenge followed.
On June 2, 1972, the U.S. District Courtfor the District of Columbia upheld the interpretation given by the 1969 guidelines that the Clean Air Act required protection of clean air in addition to enhancement of air quality in dirty air regions. That action was upheld by the circuit court of appeals and affirmed by the Supreme Court on June 11, 1973.
EPA promulgated regulations to prevent significant deterioration in December, 1974. These were promptly challenged in court by industry and environmental groups.
During hearings in 1973, 1974 and 1975, the committee was urged to clarify and resolve this issue through legislation rather than leaving the matter to the courts.
In July, 1973, National Coal Association president, Carl Bagge, testified:
This is far too significant an issue to be determined, as it has been thus far, on narrow legal grounds by the judiciary. Its economic and social implications are so broad that it cannot and should not be determined by an independent regulatory agency in a rulemaking proceeding as has been proposed. This is an issue which can only be resolved if we seek to achieve a common commitment which is responsive to our national goals, by the Congress of the United States. For this is truly a political issue of such importance that it must be resolved in the political crucible. Only then can it be examined and deliberated on by the entire range of national interests as represented in our legislative process. The fundamental issues raised by today's inquiry demand no less.
On behalf of the American Petroleum Institute, Howard Hardesty testified.:
It is the Institute's conviction that unless this issue is quickly and intelligently resolved, efforts to strengthen our economy and develop a stronger domestic energy base will be stymied.
This bill attempts to respond to the appeals of these and other witnesses. The committee unanimously agreed as to the importance of preventing significant deterioration of air quality in clean air areas. The committee also unanimously agreed that the prevention of deterioration of clean air areas should be resolved by the Congress and not by the courts. Having reached these conclusions, the committee worked for many months to develop a consensus regarding the most useful method for prevention of deterioration.
The provisions in the bill:
First. Place primary responsibility and authority with the States, backed by the Federal Government;
Second. Apply only to new major emitting facilities, not affecting existing facilities;
Third. Require that large new sources use the best available technology to minimize emission, determined by each State on a case-by-case basis;
Fourth. Provide a margin of safety to protect national ambient air quality standards, assuring prudent consideration of any major emitting facility that may threaten that air quality;
Fifth. Require the Federal Government, as a property owner, to protect the values related to air quality on certain Federal lands under the stewardship of various Federal agencies;
Sixth. Eliminate the so-called "buffer zones" that were hypothesized around various land classifications;
Seventh. Affect only those areas where air quality is cleaner that the present primary or secondary standards;
Eighth. Establish a permit process, managed by the State, which is included in an analysis of the air quality impact of new major emitting facilities;
Ninth. Require that the permit application should include data on background air quality and potential associated growth in order to better understand the overall air quality implications of the new facility; and
Tenth. Establish that there should be a nationally applicable maximum level of change in the air quality of clean air regions — the so-called class II increments — which would be a measure in the change in air quality permitted in any given area as a result of the operation of one or more new major emitting facilities.
The committee made only four changes this year in the nondegradation provision that passed the Senate last year. First, the committee further enhanced the State's power under this provision by eliminating the concurrence of the Federal land manager when a State wants to designate a Federal land area as a class I area. Second, new national parks created after the passage of these amendments would begin as class II areas, and the State would have the power to redesignate the area as class I with no further action required from the Federal Government.
Third, the committee agreed that a source with combined pollution of actual emissions — after pollution controls were adopted — which totals less than 50 tons per year would not be required to be counted against the class II increments.
And fourth, federally recognized Indian tribes were given the authority to redesignate the classification of their tribal lands.
The committee bill requires each State to identify the air quality of existing air quality control regions or portions thereof for each pollutant. The States must submit this information to the Administrator within 4 months.
The regional designation of ambient levels of each regulated pollutant is preliminary to all State regulatory programs. It is therefore essential that the identification process proceed in the timely fashion required by the Senate bill.
If the air quality levels of a region or portion of it exceed the primary standard for a pollutant, it is subject to the requirements for nonattainment areas, which may include transportation control planning under existing section 110, as amended by section 7 of the committee bill.
An area in which air quality levels for sulfur oxides or particulates are better than the ambient standards would be subject to the nondegradation process of the bill, section 6. The State would be required to adopt and enforce as part of its implementation plan provisions to prevent significant deterioration of air quality.
For the most part, there is sufficient information available to determine which air quality control requirements apply to which portions of each State. In the absence of information to the contrary, a region would be assumed clean and thus subject to the significant deterioration provisions.
The bill's procedures to prevent significant deterioration apply only to new major emitting facilities and do not affect existing facilities or new facilities which are not specified as major by this bill or by subsequent EPA regulations.
Major emitting facilities are only those 29 industrial sources identified by category in the statute — or later identified by EPA — and which have the potential to emit more than 100 tons of a pollutant per year. These do not include houses, dairies, farms, highways, hospitals, schools,. grocery stores, and other such sources.
Just as sources in class II areas must be reviewed to assure that emissions do not cause or contribute to significant deterioration in class I areas, sources in other areas must be reviewed to assure that they do not cause or contribute to significant deterioration in nondegradation areas.
The Federal role is sharply restricted in implementing this policy. The Environmental Protection Agency has responsibility to: First, approve the new source review process established by the State; second, seek injunctive relief or other judicial relief as necessary to prevent the issuance of a permit for a new source if it does not comply with the specific statutory requirements related to significant deterioration; third, resolve interstate disputes; and fourth, notify appropriate Federal land managers when an adverse impact may occur in a class I area. Once the State adopts a permit process in compliance with this provision, the Environmental Protection Agency role is to seek injunctive or other judicial relief to assure compliance with the law.
Much confusion has been generated about so-called buffer zones that encircle the class I regions. This bill eliminates the inflexibility of current EPA regulations by establishing the class I increments solely as a means of determining where the burden of proof should lie as to adverse impact on air quality values. Like the class II numbers, the class I increments are an index of the change in air quality. They do not, in any way, establish a final basis for approval or disapproval of a permit application. Thus, any maps which describe buffer zones as a result of the Senate bill distort the impact of these amendments.
Decisions regarding each new facility will be made by a State depending on the information presented in each permit application. Whether or not there is a Federal interest related to class I. areas will be established on a case-by-case basis. The decisions which the Federal land manager and the States make as a result of the analysis of impact on class I areas and the extent to which any parties appeal the results of the class I increment test and the decisions reached during such an appeal are flexible. I repeat: there are no arbitrary buffer zones.
If the Federal land manager certifies that the air quality values of the class I areas in question will not be adversely affected by sulfur dioxide or particulate emissions from a new major emitting facility, the source can be given approval to build even if the class I increments would be exceeded. Conversely, if the Federal land manager convinces the State that the air quality related values would be adversely affected, the State must deny approval even if the class I increments would not be exceeded.
This approach is flexible. It provides a basis for determining the air quality values of Federal lands which are to be protected. And it requires a balancing judgment to be made on a case-by-case basis.
The committee did not extend the use of nondegradation increments to pollutants other than sulfur oxides or particulates. The lack of adequate information on the implications of covering other criteria pollutants precluded such a requirement. The committee did, however, agree that the best available control technology requirements should be applicable to all pollutants emitted from any new major emitting facility so that the maximum degree of emission reduction would be achieved in order to minimize potential deterioration. And the committee did authorize a study by EPA of increments applicable to other pollutants in order to establish a basis for future congressional action.
Again, I refer my colleagues to the charts, with particular reference to the chart entitled "Added Emissions Over 1975." These statistics show various air pollution trends under differing growth and control technology assumptions — attachment A.
One purpose of the committee provision to prevent significant deterioration is to try to reverse the current trend in air pollution. The lower segment of this chart which shows oxides of nitrogen trends is particularly interesting.
Under the nondegradation provision, each new facility in a nondegradation area is required to comply with the best available control technology for all pollutants emitted. This is critical if the growth trend for oxides of nitrogen is to be slowed. Current new source performance standards for power plant NOx emissions are inadequate. For many other industries, standards do not even exist. As the chart shows, virtually any set of assumptions which relies on current new source standards for NOx results in a significant increase in total national emissions.
Conversely, in combination with aggressive auto controls, the application of best available control technology for oxides of nitrogen can begin to restrain the upward trend in emissions.
These charts indicate the importance of an effective nondegradation provision. Although total emissions of sulfur oxides have declined about 15 percent between 1970 and 1974 as reported by the Council on Environmental Quality, analysis of future trends shows that this decline will soon be reversed.
This chart shows that emissions will climb again as the number of new stationary sources grows. Although it will be difficult to make progress, we can and must at least minimize the increase. If the States insist on the best available control technology instead of being satisfied with the inadequate new source performance standards for sulfur oxides, there can be 3.2 million fewer tons of sulfur oxides in 1990, even in the high growth scenario.
There were numerous other issues associated with nondegradation which are important to an understanding of this legislation.
ENVIRONMENTAL IMPLICATIONS
The nondegradation provision provides needed environmental protection which the existing ambient air quality standards do not provide. If the national secondary ambient air quality standards were revised to protect against these damages, achievement of the secondary standards in dirty air areas would be extremely difficult.
Secondary standards were envisioned as a goal for cleanup of dirty air areas. They were intended to identify the degree to which pollution needed to be reduced to stop damage to crops, household plants, buildings, and general esthetic deterioration. Secondary standards as promulgated did not address ecological and esthetic values. EPA apparently assumed that if secondary standards had been established to protect these values, their achievement in dirty air areas would have been virtually impossible in any reasonable time frame.
The nondegradation provision is intended to provide protection against harmful environmental effects not anticipated by secondary standards and to assure that a single, new major emitting facility will not consume the entire regional air resource, thus barring any future growth.
For example, if the secondary standards were the only restraint on new sources in clean air regions, visibility which is now 100 miles or more in some areas could deteriorate to 12 miles. If humidity is high, visibility would be reduced even further. While visibility may not be important in dirty air areas, it has high public value in many clean air regions and should have been protected by secondary standards.
Another example of the inadequacy of secondary standards is the increasing number of studies indicating that pollutants are transported for much greater distances than previously thought. This means that emissions from sources in rural areas contribute to urban pollution problems and vice versa. In its report to the Senate Public Works Committee of March 1975, the National Academy of Sciences expressed concern that emissions as far away as 300 miles could contribute to unhealthy air in major cities.
Sulfur oxides and nitrogen oxides increasingly are returning to the ground in the form of acid rain which damages valuable water and soil resources. A conference was held in the summer of 1975 in Columbus, Ohio, where many scientists expressed concern over this impact.
Norway has experienced a substantial decline in its fishery resources which has been attributed to acid rain. A 20 year study in Scandinavia indicates that acid rain has killed fish and caused an ecological change. Forest growth and yield have declined. Fish populations have been adversely affected by acid rain in 75 percent of the high elevation lakes of the Adirondack Mountains.
Pollution at less than the concentrations accepted by the national secondary standards has been proved to damage vegetation. Acute injury to spruce trees has been reported when average concentrations of sulfur dioxide were only two-thirds the level allowed by the ambient secondary standards. Studies indicate that other crops are also damaged at concentrations less than the secondary standards, including wheat, potatoes, spinach, apples, and white pine.
Exposure to low level concentrations of pollutants has health effects. Studies done in Japan since the establishment of the primary standards in the United States indicate that air pollution concentrations lower than the national standards cause increases in reported illnesses. The National Cancer Institute estimates that 60 to 90 percent of cancer is environmentally caused. The ambient standards as presently established do not include consideration of these facts.
The nondegradation amendment is intended to help reduce overall emissions and thus provide protection against these kinds of adverse impacts.
TECHNOLOGICAL IMPLICATIONS
One of the cornerstones of a policy to keep clean air areas clean is to require that new sources use the best technology available to clean up pollution. It is important to assure that new, improved technology is applied as it is developed. And it is important toprovide incentives toimprove pollution control systems.
To encourage this result, the bill requires the use of pollution control systems which achieve the maximum degree of continuous emission reduction, determined by the States on a case-by-case basis. The States are authorized to take into account energy, environmental, and economic impacts and other costs in reaching their determination. Such an approach should provide greater emission reductions and allow more rapid application of improved technology than would otherwise occur through uniform application of the new source performance standards periodically promulgated — and seldom changed — by the Environmental Protection Agency.
The record to date under the new source performance standards approach has been disappointing. The most glaring example occurs in the control of coal fired power plants — the largest and fastest growing stationary source of sulfur oxides and particulates. The adequacy of these standards is exemplified by the fact that pollution control for particulates achieved at the Four Corners power plant in New Mexico is already 14 times cleaner than required by the new source performance standards promulgated by EPA. In addition, the new San Juan plant in New Mexico, scheduled to begin operation in 1977, is expected to achieve cleanup of particulates which is 30 times better than required under EPA's new source performance standards. These facts were presented in our hearings last April. For sulfur oxides, the San Juan plant is expected to be almost 10 times cleaner than required by EPA's new source performance standards.
Because of the gap that exists between actual best available technology and what has been required under new source performance standards, individual States have established emission limits which exceed the new source performance standards of sulfur dioxide which are more restrictive by an order of magnitude.
At present there are only 18 source categories for which new source performance standards have been promulgated — less than half of the biggest sources that should be covered. Though some of these were promulgated as long ago as 1971, none have been revised to take into account improved technology which has been developed, and only one is under active consideration for such a revision.
Much of the advancement of pollution control technology has occurred at new plants located in clean air regions. This has been due to the efforts of States interested in preserving clean air. The Federal standards, on the other hand, were based upon burning poor quality coal with stack gas cleaning. While this may be necessary in areas where dirty coal will be used, it is certainly not an adequate basis for national policy. In addition, although cleaner coal is burned in many areas, the impacts of resulting emissions are still substantial.
A typical new 1,000 megawatt coal fired power plant using clean coal and no control technology for sulfur oxides emits 144 tons per day when operating at full load. When controlled with technology currently being used today, these emissions can be reduced to 14 tons per day.
In some cases the new source standards mean that requiring the "best technology" will result in no improvement in emission control at all — a disappointing result from a requirement which was designed to maximize the protection of air resources and minimize the need to retrofit facilities in the future.
One objection which has been raised to requiring the use of the best available pollution control technology is that a technology demonstrated to be applicable in one area of the country is not applicable at a new facility in another area because of difference in feedstock material, plant configuration or other reasons. For this and other reasons, the committee voted to permit emission limits based on best available technology on a case-by-case judgment at the State level. This flexibility should allow such differences to be accommodated and still maximize the use of improved technology.
Reliability of new pollution control technologies has also been challenged, particularly against sulfur oxides emission control systems.
An EPA study on scrubber development issued in May of 1977, it was reported that 122 flue gas desulfurization systems with a rating of 50,000 megawatts are either operational, under construction, or planned in the United States. The efficiency of these systems in removing sulfur dioxide was reportedly to be in the range of 80 to 90 percent. Although the older systems did have problems, developments have reached the stage where these systems are clearly a viable means of pollution control. And evidence available to the Environmental Protection Agency and the committee indicates that sulfur oxide control systems are, in fact, more reliable than electric generating equipment.
ECONOMIC IMPLICATIONS
The economic objections raised against the nondegradation provisions are not new. They are restatements of old arguments used by industry against other attempts to improve the lives of Americans.
When we fought for improved wages for workers, industry said that they could not afford it.
Now when we are fighting for an improved environment, industry says that it cannot afford it.
The chart on projected capital investment for selected major industries through 1985 shows that the added capital investment required for pollution control is modest — attachment B.
And if an expenditure of an additional 2.3 to 2.6 percent — the maximum estimated by an FEA-EPA study of the various significant deterioration policies being considered by the Congress — is required, it is not an unreasonable price to assure that air quality in clean air areas remains clean. Not only would such an investment protect the public against the long term ecological impacts of increasing levels of overall pollution, but also such a policy would reduce public exposure to low levels of pollutants which may lead to chronic health effects.
The FEA study found that total operating costs for power plants, including air pollution controls through 1990, would be $1.335 trillion. The Senate nondegradation provision could add a maximum $16.5 billion or 1.1 percent to operating costs if the States insisted on the use of the best and most expensive pollution control systems. The minimum increase would be zero, using new source performance standards, if States could justify such modest efforts. The actual cost would obviously be somewhere in between.
The impact on the consumer, in both direct costs and indirect costs attributable to the increased prices of goods manufactured through the use of electricity, would be modest. Again, if the States require the most stringent levels of control and expensive techniques, the maximum consumer cost would be $2.33 or 2.3 percent additional costs per month during the year showing the greatest cost. The direct impact on consumers in electric bills would, under the most rigorous scenario, be $1.17 per month additional cost in the year 1990. This is approximately a 1.1 percent increase.
Some opposition to meeting stringent environmental goals is based on a desire to balance these goals against the cost of installing pollution control equipment. This is a distorted view of economics. It places the cost of pollution on those who receive the damage: the asthmatic who has more attacks, the child who has bronchitis or a more serious respiratory disease, and the farmer whose crops yield less. These people are now bearing the costs of air pollution.
According to the National Academy of Sciences, a single large source such as a power plant may cause $20 million to $50 million in pollution related costs per year.
Another important economic question relating to nondegradation policy is the impact on national coal development and the goal of energy independence.
There is a great deal of justifiable concern about potential decline in the use of eastern and midwestern high sulfur coal. The EPA/FEA analysis indicates that the nondegradation requirements would have a beneficial effect for the marketing of eastern and midwestern coal.
The report concludes that many plants, especially those in the Midwest which formerly were planning to import oil or rely on Western low sulfur coal in order to meet the requirements of the Clean Air Act, will find it more economical to blend local medium sulfur coal with high sulfur and install a scrubber. As a result of the Senate control technology requirements, the demand for Western coal — or Mideast oil — would be reduced by 35 million tons or by 5 percent — a demand which would be filled by Eastern high sulfur coal and stack gas cleaning equipment or new clean fuels techniques.
Some additional costs may result from the disposal of captured pollutants. These captured by-products — sludge which would otherwise be dispersed in the air, can be treated to reduce volume substantially. And there are regenerable sulfur oxide control processes which yield no added sludge, other than would normally result from reduced dispersal of pollutants to the atmosphere. In any case, the amount of sludge — captured pollutants — need be little more than the amount of ash which has been disposed of by powerplants for many years.
Some low sulfur coals presently being burned actually result in three times the amount of ash produced compared to Eastern high sulfur, high Btu coal. Treated sludge, on the other hand, can reduce the volume of ash and sludge combined by approximately 50 percent and can be used as landfill and building materials.
ENERGY IMPLICATIONS
In many cases, the use of the best available new processes will yield significant pollution reduction and also conserve energy. The adoption of hydro-metallurgical processes to replace smelting techniques in the copper industry is yielding pollution reduction approaching 100 percent. New paper mill processes for burning pulping liquors will provide half the steam to run the mill. A new paper mill evaporator recently developed eliminates odors and saves 200,000 barrels of oil per year.
Coating processes using volatile solvents that contribute to smog are being replaced by water based, ultraviolet, or dry processes which are solvent free.
The use of best available control technology as add-on devices may increase energy consumption. But these increases are expected to be modest. Flue gas desulfurization systems for power plants use approximately 3 percent of the capacity of the plant. For example, according to available data, the energy demand of a scrubber system for an 800 megawatt power plant is roughly equivalent to the energy demand to mine the coal for that plant. And the energy used is not foreign energy — it is domestic coal.
An EPA study of costs of nondegradation policies indicates that the maximum energy penalty associated with the operation of pollution control equipment at new power plants would be modest: Only 0.8 percent in 1990.
If all new power plants between now and 1990 were equipped with stack gas cleaning devices, the energy needed to operate these cleaning devices could be generated without the addition of any new capacity if existing plants were to increase their actual generation by 1 percent of capacity over their present performance.
The present performance of coal fired power plants is approximately 65 percent of capacity; for nuclear plants the performance is 59 percent capacity. Clearly, priority should be given to increasing the reliability of existing power plants so that energy is available for public consumption and for the operation of pollution control equipment.
FEDERAL-STATE RELATIONSHIP
The States are assigned the lead role in implementing nondegradation policy. As I pointed out earlier, EPA is given a carefully defined role.
As important to the national controversy on significant deterioration is the role of the Federal Land Manager. These Federal officials are given a positive responsibility to assure protection of air quality values associated with the national parks and wildernesses and other Federal lands which may become designated as class I areas. The Federal Land Manager will play an important role relative to emissions which have potential impact on these valuable areas.
Many national parks and wilderness areas have been set aside because of their extensive vistas, expansive scenic views, unique natural formations or primitive value. If pollution would impair such values, or if the existence of the plume or the discoloration which would be caused by a major emitting facility would detract from the values of a park or wilderness area, then the Federal Land Manager must act to try to prevent this damage.
The Federal Land Manager has a mandate to protect the air quality values of these areas. This bill requires the Federal Land Manager to be diligent in carrying out this new responsibility.
In most cases, the added pollution allowed by this act will still leave a cushion in clean air areas before the national health and welfare standards are exceeded. The States are expected to avoid using up this safety margin with pollution from non-major emitters.
This is an important admonition. If efforts are not made to control these sources before they begin to threaten health and welfare standards, there is great likelihood that those standards will, in fact, be exceeded. The patterns that create such pollution — such as sprawl requiring excessive transportation — will already be established. Reversal will be difficult if not impossible. Even if reversal is possible, unnecessary and undesirable deterioration of air quality would have occurred.
It would be of little value to have carefully reserved the option of States to make balancing judgments in relation to the degree of emission reduction beyond that required by the increments if, in the absence of careful consideration of non-major emitters, the growth capacity were frittered away.
Last year, during Senate consideration of the nondegradation provision, the Senate was asked to adopt a provision allowing for a 1 year study of the nondegradation policy prior to passage of the legislation in the Senate. That amendment was rejected by a vote of 31 to 63. The Senate determined that adequate studies already existed to make decisions regarding nondegradation.
The judgment that adequate studies had been conducted has proven to be correct. There has been a 1 year lapse since the Senate reported its bill in 1976. The reports available at that time have held up well over the last year. The studies conducted in the 1975-76 period still serve as the basis for judging this policy. Studies done since the Senate debate last year have only been supplemental. Extensive new studies have not been required. The basic choices are available, and the Senate made the correct choice last year.
A nondegradation policy has been governing the country for the past 2½ years. The EPA regulations were issued in December 1974. All of the clean air portions of the country have been designated as class II areas, just as in the Senate bill.
Growth did not stop. Industry did not come to a standstill. The Nation did not come to its knees. In fact, business has gone forward, and new facilities were constructed.
Let me give some examples. A pulp and paper mill in western Montana, in mountain country near Missoula, has had a large expansion approved. A coal cleaning facility in western Colorado has received a permit. A 350 megawatt power plant at Brush, Colo., was approved. A sewage sludge incinerator was approved in Westchester County, N.J. Petroleum storage tanks along the east coast have been approved. Dozens of industrial, commercial, and residential combustion units have been approved. A 750 megawatt power plant has been approved at the Iatan station of Kansas City Power and Light. A refinery in Kansas City has been approved.
These examples are merely a sampling of the hundreds of facilities that have been approved throughout the country. These are industrial facilities. They have been able to comply with the increments that are contained in the Senate bill. Any fears that a nondegradation policy is unreasonable are unfounded.
V — ENFORCEMENT AND PENALTIES
ENFORCEMENT
The 1970 Clean Air Act established a deadline for achieving public health-related air quality standards. States were authorized to establish a "reasonable time" for achievement of secondary standards. The statutory deadline for primary standards was mid-1975 with 2 additional years available in areas with particularly difficult air pollution control problems. As the committee considered the current legislation, it became evident that, for a variety of reasons, some sources would not meet the compliance schedules established pursuant to that act.
A substantial number of major emitting facilities remain out of compliance with emission limitations. Some States have not even adopted full State implementation plans. While substantial progress has been made in bringing many sources into final compliance, an improved mechanism must be established to handle sources presently not in compliance.
The committee recognizes that some of the facilities are in compliance and that other facilities are on compliance schedules. These sources deserve praise. They have made or committed investments. They have cleaned up their emissions or are in the process of cleaning up their emissions.
Such sources are faced with a competitive disadvantage associated with increased costs for pollution controls — costs not incurred by sources either not on a schedule or not in compliance with a schedule. Those sources which have chosen to delay, avoid or litigate have, in fact, achieved economic advantage. Thus the competitive health, as well as the public health has been placed in danger. The committee bill attempts to correct this imbalance.
The nature of the problem is underscored by a review of the status of compliance with eight major categories of stationary sources. As the chart entitled "Stationary Source Compliance" indicates, between one-third and two-thirds of stationary sources are in compliance or on compliance schedules and meeting those schedules — attachment C.
However, this chart shows that a large fraction of powerplants and industrial boilers — approximately 40 percent — are either not on schedule or not in compliance with the applicable schedule. Only 41 percent of Federal facilities are in compliance or on schedule. Only 32 percent of the smelters and 35 percent of the steel mills are in compliance. These sources are not in compliance in many cases represent the largest industries and the largest emitters within those industries.
DELAYED COMPLIANCE PENALTIES
The committee bill provides for delayed compliance orders and delayed compliance penalties as a new strategy to enforce applicable emission limitations and to address the problem of those existing sources which are out of compliance. This provision allows a State or EPA to issue enforcement orders to sources not in compliance with applicable emission limitations. Such orders will require compliance as expeditiously as practicable but in no event later than July 1, 1979.
Sources which are presently on schedules extending beyond that date are operating under unauthorized extensions and are to have their schedules revised to meet that date. In order to enforce this provision, an automatic delayed compliance penalty is provided for sources which are not in compliance by July 1, 1979. The level of this penalty is intended to assure that no economic benefit will accrue to a facility that does not comply.
The penalty will require monthly payments equal to the cost of compliance computed over a 10 year amortization period.
On the chart there is a category described as unknown. Included in this unknown category are plants where the emission standards are in litigation or where the compliance status otherwise cannot be precisely determined. It can be assumed in general that most of the plants in the unknown category require controls in order to meet the requirements of the Clean Air Act.
CIVIL PENALTIES
The committee bill also authorizes the Administrator to seek civil penalties for violation of emission limitations or schedules and timetables of compliance. This authority is independent of the deadline extension and the delayed compliance penalty. If a State has not issued a delayed compliance order with a new time schedule, the Administrator is required to seek an injunction against the noncomplying source and is authorized to seek civil penalties for noncompliance. In addition, the Administrator is authorized to seek additional penalties against sources which are subject to the delayed compliance penalty.
The principle purpose of the Clean Air Act is to protect the public health. The mere payment of an economic penalty required by the delayed compliance penalty provision should not be insulation against achieving requirements related to protection of public health. The purpose of the delayed compliance penalty is to create an adequate economic disincentive to achieve compliance at the earliest possible date. It is not intended to provide an opportunity for continued noncompliance. As an enforcement mechanism, the delayed compliance penalty should remove some of the burden on the Administrator to commit enforcement resources; but it should not reduce the responsibility for the Administrator to seek injunctive relief and penalties against noncomplying sources.
Finally, the delayed compliance penalty will give the courts an option which has not heretofore been available. When the courts determine the public health and welfare costs of plant closure are greater than the public health benefits to be achieved from strict adherence to compliance with emission limitations by the deadlines in the statute, the court may rely on a combination of delayed compliance penalty and civil penalties to equalize economic differences while maintaining momentum for compliance with the law.
COAL CONVERSION AND UTILIZATION
The committee bill gives special consideration to power plants and major fuel burning installations converting to coal because of orders by the Federal Energy Administration or because of approved curtailments of their natural gas supplies. Such sources may be issued delayed compliance orders which allow delays of up to 3 years in the time when the applicable emission limitation must be met.
Public health will be protected because the bill requires that the burning of coal during the delay may not cause primary health related air quality standards to be exceeded. Enforceable emission limits to assure this result should accompany any conversion permit. Yet the need of the Nation to convert oil and gas boilers back to coal is recognized by allowing such conversions to proceed even while pollution control equipment is being ordered and installed rather than insisting that the burning of coal wait in every case until the necessary retrofit of control technology is complete.
In a similar vein, the bill exempts sources ordered by FEA to convert to coal and sources subject to approved natural gas curtailment plans from the requirement to meet new source performance standards under section 111 of the Clean Air Act. However, such sources would still be subject to the provisions of section 110 including nonattainment and nondegradation and other portions of the act.
Finally, in recognition of the fact that coal conversion has become an ongoing program rather than just a short term response to the oil embargo, the bill changes the focus for required certifications and notifications from the Federal level — EPA — to the States. This brings this important program into procedural conformity with other stationary source pollution control programs.
Aside from conversion of existing plants to coal, a major initiative in President Carter's national energy plan is to require new utility and industrial boilers to burn coal, except under extraordinary conditions. This initiative reflects the realities of the marketplace, where nearly all the fossil fired utility boilers being ordered today are equipped to use coal as a fuel. These initiatives, if successful, will increase coal utilization in the United States from 600 million tons in 1976 to over 1 billion tons in 1985. The question has been raised of the connection between this program and the Clean Air Act.
The Clean Air Act itself provides an adequate framework for insuring protection of the public health and welfare as these new sources are built. As a result, the Committee did not have to make legislative changes in the bill in this area. However, such a massive increase in the burning of coal, a fuel which is inherently much dirtier than natural gas or fuel oil will require careful administrative attention.
EPA is expected to immediately direct States to reexamine their implementation plans — SIP's — which are devised to meet national air quality standards, but which are generally based on the widespread use of natural gas and oil. Such plans commonly allow higher emission levels for coal than for other fuels. And some plans specify fuels rather than stack emissions as the control requirement. That difference in emission limitations will have to be removed. Modification may be sufficient. But, in every case, the SIP's must be reviewed to make sure that they will still be adequate to bring compliance with needed clean air standards in accordance with the deadlines of the act.
In order to protect public health when coal conversions are ordered in States where the SIP is inadequate for the greatly increased use of coal, the Administrator of EPA should use his authority to require a SIP revision prior to a coal conversion in any air quality control region where national primary ambient air quality standards would be exceeded if the conversion occurs and current emission limitations are met. Only in this manner can accurate assessments of the potential for coal conversion be made, with the assurance that the public health will be protected at all steps in the process.
EPA must reexamine the emission requirements set in new source performance standards. Originally intended to require that new plants use available technology to minimize harmful emissions, these have fallen far behind the state of the art. Today, sulfur dioxide emissions can be reduced by a factor of 10 on low sulfur coal compared to present new source performance standards, using available flue gas desulfurization and coal cleaning equipment, at a cost of only $8 to $10 per ton of coal burned. Likewise, technical assessments provided by EPA show that nitrogen oxide emissions from fossil fired boilers can be reduced by a factor of 2 compared to the totally inadequate present requirements.
This does not require exotic technology, but only careful boiler design, and it is necessary. Without more stringent stationary source NOx control, emissions of this dangerous pollutant will double by 1990. And there will be increased pressure for mobile sources to take up the slack, both by even tighter exhaust standards for autos and by more stringent transportation controls.
Some critics have argued that increased coal use is incompatible with the Clean Air Act and have called for relaxation of the act to meet energy goals. This committee has consistently taken the opposite view: The way to increase the acceptability of coal as a fuel is to insist that it be burned cleanly.
The President has also emphasized this point by supporting a requirement that all new facilities use best available control technology and by supporting a strong provision on prevention of significant deterioration. The administration's assessment indicates that its energy goals can be achieved without endangering the public health or degrading the environment.
Of course, the conversion to coal will be somewhat constrained in nonattainment areas where air quality standards are already being exceeded. The President's national energy plan points out that
utilities and industrial facilities will be asked to convert to coal without sacrifice of air quality standards. It is recognized that, in areas with serious air pollution problems, it may be necessary to continue burning oil in order to protect public health.
As for cost, clean burning of coal costs somewhat more than uncontrolled burning of coal, but it is worth it. And in most cases it will be cheaper than burning expensive imported oil. If firm environmental requirements are maintained now, while the price of coal is relatively low, even if coal prices rise, that increase will be limited. The price of coal will be sufficiently less than the equivalent price of oil to allow for transportation and pollution control costs. And the cost of electricity to the consumer will still be less than it would be with imported oil.
In some urban areas, direct burning of coal in conventional boilers may not be possible because of air quality requirements. But even there, technology offers some hope for alternatives. Fluidized bed combustion removes pollutants within the boiler even as the coal is burned. Although this technology is not available yet for large utility boilers, smaller pilot plants have been tested, and it can be used in smaller industrial boilers. Another option is low Btu gasification, a process that has been used commercially for many years in Europe. The gas produced is not of high enough quality for it to be economic to ship in the interstate pipelines, but it can be produced from coal onsite for industrial uses. And it is a process that is inherently cleaner than direct burning of coal.
Coal conversion is also connected with auto emissions, as pointed up in testimony received by the committee. Douglas Costle., Administrator of EPA, said:
While emissions of NOx (nitrogen oxides) are approximately the same in 1985 with or without the National Energy Plan, NOx emissions are projected to be 25 percent above 1975 levels.
To hold that NOx increase down to that 25 percent requires an automobile emissions standard of 1 gram per mile NOx and accelerated implementation of new source performance standards for stationary sources. But if the Griffin-Riegle automobile amendment is adopted and current new source performance standards remain, the NOx level in 1985 will be 60 percent higher than 1975. That would mean an additional 9 million tons per year of NOx emissions nationwide. In that event, it is not likely that public health considerations will permit many conversions to coal.
Thus, adoption of relaxed automobile standards as proposed by the Griffin-Riegle amendment translates into even more limitations to growth in nonattainment areas, even more limitation of growth in nondegradation areas, and more harm to public health. Thus, the automobile emission standards are not simply arbitrary bureaucratic judgments. They should not be relaxed and if they are, we must be prepared to face the adverse consequences on the coal conversion program as well as those on public health.
Thus, the Clean Air Act and these amendments are a useful tool, not a barrier, as we strive toward the twin goals of energy sufficiency and environmental quality.
VI.—OTHER ISSUES
EMISSION LIMITATIONS
The 1970 Clean Air Amendments included a requirement that State implementation plans impose "emission limitations." This term has been the subject of controversy, litigation, and dispute. These 1976 amendments provide a statutory definition of the phrase "emission limitation" to make clear the intent of the 1970 law — as upheld in numerous judicial decisions — that the basic strategy for implementation of air quality programs must be premised on continuous emissions control. Intermittent controls or dispersion techniques are unacceptable as a substitute for continuous control of pollutants under this Act.
This clarification of existing law is grounded on these factors: First, intermittent control strategies are, as a practical matter, unenforceable by air pollution control agencies. Such strategies require elaborate monitoring and forecasting capability. Implementation relies on the polluter's ability to predict weather conditions and willingness to curtail production in response to those predictions. At the same time, few air pollution control agencies have the resources to police these strategies to assure that a polluter does in fact curtail production on a timely basis. In addition, they can cause unacceptable disruptions in production and employment.
Former Administrator Russell Train recently summarized his Agency's position in this way:
In the area of ICS, we have determined that such methods are inherently pliable and difficult to enforce. EPA's view has been supported by the Department of Commerce Technical Advisory Board which has found in its 1975 Report on Sulfur Oxide Control Technology that intermittent control systems create administrative and financial difficulties which could prevent effective enforcement. The report also states that under certain circumstances the costs of such a system would approach that of continuous emission control measures. The National Academy of Sciences has also supported the EPA position.
Without emission limitations there would be no fixed end point when compliance would be achieved. And, even if air quality standards were enforceable, it would have to be on a constant, continuous day-by-day basis: There would be no basis for judging the performance of one source against another in regard to air quality effect in a multi-source area because each source would have no specific, legally enforceable requirement to meet.
There would be no credible measure of air pollution control against which the public would judge the performance of the polluter. And, most important, there would be no legal basis against which to take an action if the polluter failed to perform. This is particularly true for citizen enforcement.
Mr. Benjamin Wake, Administrator of the Division of Environmental Sciences of the Montana Department of Health and Environmental Sciences, stated to the Subcommittee on Environmental Pollution in April of 1975:
If it was the intent of the Congress, and I do not believe it was, to make the country uniformly dirty then the attaining of the national ambient air quality standards by use of the intermittent control system will achieve those ends in short order.
Second, continuous emission reduction measures are available, they are reliable, and they are economically justified. Available measures for continuous emission reduction include use of fuels which are low in sulfur or ash, and techniques such as desulfurization of fuels, coal cleaning and washing, flue gas cleaning, and more effective combustion engineering. The choices among such measures or the combination of measures to achieve the level of emission control set by the air pollution control agency rests with the owner of the source. The use of intermittent controls is appropriately reserved for air pollution emergencies.
Third, there is increasing evidence of the long range transport of pollutants that become sulfates, acid rain, and other phenomenon affecting human health, vegetation and soils, but leaving no definable plume that is traceable back to the source.
In a report for the committee. the National Academies of Science and Engineering found that dispersion measures may exacerbate the formation in the atmosphere of acid sulfates and nitrates from the sulfur and nitrogen oxides emitted from fuel burning sources. These derivative pollutants are thought to be more toxic forms than the oxides of sulfur and nitrogen that are actually emitted at the smoke stack and are measured in the vicinity of the source.
It is recognized that the source controls may not be available to achieve the full reduction required of a particular source under particular circumstances. In such cases, supplementary programs can and should be used on a temporary basis until continuous controls are developed. But this flexibility occurs only after compliance with continuous emission limitation requirements.
EPA will be expected to review existing State implementation plans and require revision in any that depend upon dispersion techniques rather than continuous controls. Where necessary, State implementation plans will have to be modified. This injunction also affects the provisions of State plans which permit tall stacks.
Former Administrator Train stated on April 9, 1976:
... EPA's position on tall stacks and ICS are founded upon a pre-existing and longstanding opposition to an increase of the total atmospheric burden of sulfur oxides. Prior to EPA's creation, the Federal officials had argued that dispersion methods of air pollution control would not guarantee that air quality goals would be met at the ground level. The former National Air Pollution Control Administration (NAPCA) consistently opposed the use of tall stacks as the primary means of sulfur dioxide control because of their effects on the formation and dispersion of fine particulate acid sulfates, visibility conditions, the health of exposed populations, and the acidity of rainfall. Information collected since 1970 has reaffirmed these NAPCA assessments. Thus, ... ample evidence exists to support concerns over total atmospheric sulfur loading and the use of tall stacks.
The recently promulgated guidelines setting forth the agencybeen developed, and only one is under active consideration for such a revision.
Much of the advancement of pollution control technology has occurred at new plants located in clean air regions. This has been due to the efforts of States interested in preserving clean air. The Federal standards, on the other hand, were based upon burning poor quality coal with stack gas cleaning. While this may be necessary in areas where dirty coal will be used, it is certainly not an adequate basis for national policy. In addition, although cleaner coal is burned in many areas, the impacts of resulting emissions are still substantial.
A typical new 1,000 megawatt coal fired power plant using clean coal and no control technology for sulfur oxides emits 144 tons per day when operating at full load. When controlled with technology currently being used today, these emissions can be reduced to 14 tons per day.
In some cases the new source standards mean that requiring the "best technology" will result in no improvement in emission control at all — a disappointing result from a requirement which was designed to maximize the protection of air resources and minimize the need to retrofit facilities in the future.
One objection which has been raised to requiring the use of the best available pollution control technology is that a technology demonstrated to be applicable in one area of the country is not applicable at a new facility in another area because of difference in feedstock material, plant configuration or other reasons. For this and other reasons, the committee voted to permit emission limits based on best available technology on a case-by-case judgment at the State level. This flexibility should allow such differences to be accommodated and still maximize the use of improved technology.
Reliability of new pollution control technologies has also been challenged, particularly against sulfur oxides emission control systems.
An EPA study on scrubber development issued in May of 1977, it was reported that 122 flue gas desulfurization systems with a rating of 50,000 megawatts are either operational, under construction, or planned in the United States. The efficiency of these systems in removing sulfur dioxide was reportedly to be in the range of 80 to 90 percent. Although the older systems did have problems, developments have reached the stage where these systems are clearly a viable means of pollution control. And evidence available to the Environmental Protection Agency and the committee indicates that sulfur oxide control systems are, in fact, more reliable than electric generating equipment.
ECONOMIC IMPLICATIONS
The economic objections raised against the nondegradation provisions are not new. They are restatements of old arguments used by industry against other attempts to improve the lives of Americans.
When we fought for improved wages for workers, industry said that they could not afford it.
Now when we are fighting for an improved environment, industry says that it cannot afford it.
The chart on projected capital investment for selected major industries through 1985 shows that the added capital investment required for pollution control is modest — attachment B.
And if an expenditure of an additional 2.3 to 2.6 percent — the maximum estimated by an FEA-EPA study of the various significant deterioration policies being considered by the Congress — is required, it is not an unreasonable price to assure that air quality in clean air areas remains clean. Not only would such an investment protect the public against the long term ecological impacts of increasing levels of overall pollution, but also such a policy would reduce public exposure to low levels of pollutants which may lead to chronic health effects.
The FEA study found that total operating costs for power plants, including air pollution controls through 1990, would be $1.335 trillion. The Senate nondegradation provision could add a maximum $16.5 billion or 1.1 percent to operating costs if the States insisted on the use of the best and most expensive pollution control systems. The minimum increase would be zero, using new source performance standards, if States could justify such modest efforts. The actual cost would obviously be somewhere in between.
The impact on the consumer, in both direct costs and indirect costs attributable to the increased prices of goods manufactured through the use of electricity, would be modest. Again, if the States require the most stringent levels of control and expensive techniques, the maximum consumer cost would be $2.33 or 2.3 percent additional costs per month during the year showing the greatest cost.
The direct impact on consumers in electric bills would, under the most rigorous scenario, be $1.17 per month additional cost in the year 1990. This is approximately a 1.1 percent increase.
Some opposition to meeting stringent environmental goals is based on a desire to balance these goals against the cost of installing pollution control equipment. This is a distorted view of economics. It places the cost of pollution on those who receive the damage: the asthmatic who has more attacks, the child who has bronchitis or a more serious respiratory disease, and the farmer whose crops yield less. These people are now bearing the costs of air pollution.
According to the National Academy of Sciences, a single large source such as a power plant may cause $20 million to $50 million in pollution related costs per year.
Another important economic question relating to nondegradation policy is the impact on national coal development and the goal of energy independence.
There is a great deal of justifiable concern about potential decline in the use of eastern and midwestern high sulfur coal. The EPA/FEA analysis indicates that the nondegradation requirements would have a beneficial effect for the marketing of eastern and midwestern coal.
The report concludes that many plants, especially those in the Midwest which formerly were planning to import oil or rely on Western low sulfur coal in order to meet the requirements of the Clean Air Act, will find it more economical to blend local medium sulfur coal with high sulfur and install a scrubber. As a result of the Senate control technology requirements, the demand for Western coal — or Mideast oil — would be reduced by 35 million tons or by 5 percent — a demand which would be filled by Eastern high sulfur coal and stack gas cleaning equipment or new clean fuels techniques.
Some additional costs may result from the disposal of captured pollutants. These captured by-products — sludge which would otherwise be dispersed in the air, can be treated to reduce volume substantially. And there are regenerable sulfur oxide control processes which yield no added sludge, other than would normally result from reduced dispersal of pollutants to the atmosphere. In any case, the amount of sludge — captured pollutants — need be little more than the amount of ash which has been disposed of by powerplants for many years.
Some low sulfur coals presently being burned actually result in three times the amount of ash produced compared to Eastern high sulfur, high Btu coal. Treated sludge, on the other hand, can reduce the volume of ash and sludge combined by approximately 50 percent and can be used as landfill and building materials.
ENERGY IMPLICATIONS
In many cases, the use of the best available new processes will yield significant pollution reduction and also conserve energy. The adoption of hydrometalurgical processes to replace smelting techniques in the copper industry is yielding pollution reduction approaching 100 percent. New paper mill processes for burning pulping liquors will provide half the steam to run the mill. A new paper mill evaporator recently developed eliminates odors and saves 200,000 barrels of oil per year.
Coating processes using volatile solvents that contribute to smog are being replaced by water based, ultraviolet, or dry processes which are solvent free.
The use of best available control technology as add-on devices may increase energy consumption. But these increases are expected to be modest. Flue gas desulfurization systems for power plants use approximately 3 percent of the capacity of the plant. For example, according to available data, the energy demand of a scrubber system for an 800 megawatt power plant is roughly equivalent to the energy demand to mine the coal for that plant. And the energy used is not foreign energy — it is domestic coal.
An EPA study of costs of nondegradation policies indicates that the maximum energy penalty associated with the operation of pollution control equipment at new power plants would be modest: Only 0.8 percent in 1990.
If all new power plants between now and 1990 were equipped with stack gas cleaning devices, the energy needed to operate these cleaning devices could be generated without the addition of any new capacity if existing plants were to increase their actual generation by 1 percent of capacity over their present performance.
The present performance of coal fired power plants is approximately 65 percent of capacity; for nuclear plants the performance is 59 percent capacity. Clearly, priority should be given to increasing the reliability of existing power plants so that energy is available for public consumption and for the operation of pollution control equipment.
FEDERAL-STATE RELATIONSHIP
The States are assigned the lead role in implementing nondegradation policy. As I pointed out earlier, EPA is given a carefully defined role.
As important to the national controversy on significant deterioration is the role of the Federal Land Manager. These Federal officials are given a positive responsibility to assure protection of air quality values associated with the national parks and wildernesses and other Federal lands which may become designated as class I areas. The Federal Land Manager will play an important role relative to emissions which have potential impact on these valuable areas.
Many national parks and wilderness areas have been set aside because of their extensive vistas, expansive scenic views, unique natural formations or primitive value. If pollution would impair such values, or if the existence of the plume or the discoloration which would be caused by a major emitting facility would detract from the values of a park or wilderness area, then the Federal Land Manager must act to try to prevent this damage.
The Federal Land Manager has a mandate to protect the air quality values of these areas. This bill requires the Federal Land Manager to be diligent in carrying out this new responsibility.
In most cases, the added pollution allowed by this act will still leave a cushion in clean air areas before the national health and welfare standards are exceeded. The States are expected to avoid using up this safety margin with pollution from non-major emitters.
This is an important admonition. If efforts are not made to control these sources before they begin to threaten health and welfare standards, there is great likelihood that those standards will, in fact, be exceeded. The patterns that create such pollution — such as sprawl requiring excessive transportation — will already be established. Reversal will be difficult if not impossible. Even if reversal is possible, unnecessary and undesirable deterioration of air quality would have occurred.
It would be of little value to have carefully reserved the option of States to make balancing judgments in relation to the degree of emission reduction beyond that required by the increments if, in the absence of careful consideration of non-major emitters, the growth capacity were frittered away.
Last year, during Senate consideration of the nondegradation provision, the Senate was asked to adopt a provision allowing for a 1 year study of the nondegradation policy prior to passage of the legislation in the Senate. That amendment was rejected by a vote of 31 to 63. The Senate determined that adequate studies already existed to make decisions regarding nondegradation.
The judgment that adequate studies had been conducted has proven to be correct. There has been a 1 year lapse since the Senate reported its bill in 1976. The reports available at that time have held up well over the last year. The studies conducted in the 1975-76 period still serve as the basis for judging this policy. Studies done since the Senate debate last year have only been supplemental. Extensive new studies have not been required. The basic choices are available, and the Senate made the correct choice last year.
A nondegradation policy has been governing the country for the past 2½ years. The EPA regulations were issued in December 1974. All of the clean air portions of the country have been designated as class II areas, just as in the Senate bill.
Growth did not stop. Industry did not come to a standstill. The Nation did not come to its knees. In fact, business has gone forward, and new facilities were constructed.
Let me give some examples. A pulp and paper mill in western Montana, in mountain country near Missoula, has had a large expansion approved. A coal cleaning facility in western Colorado has received a permit. A 350 megawatt power plant at Brush, Colo., was approved. A sewage sludge incinerator was approved in Westchester County, N.J. Petroleum storage tanks along the east coast have been approved. Dozens of industrial, commercial, and residential combustion units have been approved. A 750 megawatt power plant has been approved at the Iatan station of Kansas City Power and Light. A refinery in Kansas City has been approved.
These examples are merely a sampling of the hundreds of facilities that have been approved throughout the country. These are industrial facilities. They have been able to comply with the increments that are contained in the Senate bill. Any fears that a nondegradation policy is unreasonable are unfounded.
V—ENFORCEMENT AND PENALTIES
ENFORCEMENT
The 1970 Clean Air Act established a deadline for achieving public health-related air quality standards. States were authorized to establish a "reasonable time" for achievement of secondary standards. The statutory deadline for primary standards was mid-1975 with 2 additional years available in areas with particularly difficult air pollution control problems. As the committee considered the current legislation, it became evident that, for a variety of reasons, some sources would not meet the compliance schedules established pursuant to that act.
A substantial number of major emitting facilities remain out of compliance with emission limitations. Some States have not even adopted full State implementation plans. While substantial progress has been made in bringing many sources into final compliance, an improved mechanism must be established to handle sources presently not in compliance.
The committee recognizes that some of the facilities are in compliance and that other facilities are on compliance schedules. These sources deserve praise. They have made or committed investments. They have cleaned up their emissions or are in the process of cleaning up their emissions.
Such sources are faced with a competitive disadvantage associated with increased costs for pollution controls — costs not incurred by sources either not on a schedule or not in compliance with a schedule. Those sources which have chosen to delay, avoid or litigate have, in fact, achieved economic advantage. Thus the competitive health, as well as the public health has been placed in danger. The committee bill attempts to correct this imbalance.
The nature of the problem is underscored by a review of the status of compliance with eight major categories of stationary sources. As the chart entitled "Stationary Source Compliance" indicates, between one-third and two-thirds of stationary sources are in compliance or on compliance schedules and meeting those schedules — attachment C.
However, this chart shows that a large fraction of powerplants and industrial boilers — approximately 40 percent — are either not on schedule or not in compliance with the applicable schedule. Only 41 percent of Federal facilities are in compliance or on schedule. Only 32 percent of the smelters and 35 percent of the steel mills are in compliance. These sources are not in compliance in many cases represent the largest industries and the largest emitters within those industries.
DELAYED COMPLIANCE PENALTIES
The committee bill provides for delayedcompliance orders and delayed compliance penalties as a new strategy to enforce applicable emission limitations and to address the problem of those existing sources which are out of compliance. This provision allows a State or EPA to issue enforcement orders to sources not in compliance with applicable emmission limitations. Such orders will require compliance as expeditiously as practicable but in no event later than July 1, 1979.
Sources which are presently on schedules extending beyond that date are operating under unauthorized extensions and are to have their schedules revised to meet that date. In order to enforce this provision, an automatic delayed compliance penalty is provided for sources which are not in compliance by July 1, 1979. The level of this penalty is intended to assure that no economic benefit will accrue to a facility that does not comply.
The penalty will require monthly payments equal to the cost of compliance computed over a 10 year amortization period.
On the chart there is a category described as unknown. Included in this unknown category are plants where the emission standards are in litigation or where the compliance status otherwise cannot be precisely determined. It can be assumed in general that most of the plants in the unknown category require controls in order to meet the requirements of the Clean Air Act.
CIVIL PENALTIES
The committee bill also authorizes the Administrator to seek civil penalties for violation of emission limitations or schedules and timetables of compliance. This authority is independent of the deadline extension and the delayed compliance penalty. If a State has not issued a delayed compliance order with a new time schedule, the Administrator is required to seek an injunction against the noncomplying source and is authorized to seek civil penalties for noncompliance. In addition, the Administrator is authorized to seek additional penalties against sources which are subject to the delayed compliance penalty.
The principle purpose of the Clean Air Act is to protect the public health. The mere payment of an economic penalty required by the delayed compliance penalty provision should not be insulation against achieving requirements related to protection of public health. The purpose of the delayed compliance penalty is to create an adequate economic disincentive to achieve compliance at the earliest possible date. It is not intended to provide an opportunity for continued noncompliance. As an enforcement mechanism, the delayed compliance penalty should remove some of the burden on the Administrator to commit enforcement resources; but it should not reduce the responsibility for the Administrator to seek injunctive relief and penalties against noncomplying sources.
Finally, the delayed compliance penalty will give the courts an option which has not heretofore been available. When the courts determine the public health and welfare costs of plant closure are greater than the public health benefits to be achieved from strict adherence to compliance with emission limitations by the deadlines in the statute, the court may rely on a combination of delayed compliance penalty and civil penalties to equalize economic differences while maintaining momentum for compliance with the law.
COAL CONVERSION AND UTILIZATION
The committee bill gives special consideration to power plants and major fuel burning installations converting to coal because of orders by the Federal Energy Administration or because of approved curtailments of their natural gas supplies. Such sources may be issued delayed compliance orders which allow delays of up to 3 years in the time when the applicable emission limitation must be met.
Public health will be protected because the bill requires that the burning of coal during the delay may not cause primary health related air quality standards to be exceeded. Enforceable emission limits to assure this result should accompany any conversion permit. Yet the need of the Nation to convert oil and gas boilers back to coal is recognized by allowing such conversions to proceed even while pollution control equipment is being ordered and installed rather than insisting that the burning of coal wait in every case until the necessary retrofit of control technology is complete.
In a similar vein, the bill exempts sources ordered by FEA to convert to coal and sources subject to approved natural gas curtailment plans from the requirement to meet new source performance standards under section 111 of the Clean Air Act. However, such sources would still be subject to the provisions of section 110 including nonattainment and nondegradation and other portions of the act.
Finally, in recognition of the fact that coal conversion has become an ongoing program rather than just a short term response to the oil embargo, the bill changes the focus for required certifications and notifications from the Federal level — EPA — to the States. This brings this important program into procedural conformity with other stationary source pollution control programs.
Aside from conversion of existing plants to coal, a major initiative in President Carter's national energy plan is to require new utility and industrial boilers to burn coal, except under extraordinary conditions. This initiative reflects the realities of the marketplace, where nearly all the fossil fired utility boilers being ordered today are equipped to use coal as a fuel. These initiatives, if successful, will increase coal utilization in the United States from 600 million tons in 1976 to over 1 billion tons in 1985. The question has been raised of the connection between this program and the Clean Air Act.
The Clean Air Act itself provides an adequate framework for insuring protection of the public, health and welfare as these new sources are built. As a result, the Committee did not have to make legislative changes in the bill in this area. However, such a massive increase in the burning of coal, a fuel which is inherently much dirtier than natural gas or fuel oil will require careful administrative attention.
EPA is expected to immediately direct States to reexamine their implementation plans — SIP's — which are devised to meet national air quality standards, but which are generally based on the widespread use of natural gas and oil. Such plans commonly allow higher emission levels for coal than for other fuels. And some plans specify fuels rather than stack emissions as the control requirement. That difference in emission limitations will have to be removed. Modification may be sufficient. But, in every case, the SIP's must be reviewed to make sure that they will still be adequate to bring compliance with needed clean air standards in accordance with the deadlines of the act.
In order to protect public health when coal conversions are ordered in States where the SIP is inadequate for the greatly increased use of coal, the Administrator of EPA should use his authority to require a SIP revision prior to a coal conversion in any air quality control region where national primary ambient air quality standards would be exceeded if the conversion occurs and current emission limitations are met. Only in this manner can accurate assessments of the potential for coal conversion be made, with the assurance that the public health will be protected at all steps in the process.
EPA must reexamine the emission requirements set in new source performance standards. Originally intended to require that new plants use available technology to minimize harmful emissions, these have fallen far behind the state of the art. Today, sulfur dioxide emissions can be reduced by a factor of 10 on low sulfur coal compared to present new source performance standards, using available flue gas desulfurization and coal cleaning equipment, at a cost of only $8 to $10 per ton of coal burned. Likewise, technical assessments provided by EPA show that nitrogen oxide emissions from fossil fired boilers can be reduced by a factor of 2 compared to the totally inadequate present requirements.
This does not require exotic technology, but only careful boiler design, and it is necessary. Without more stringent stationary source NOx control, emissions of this dangerous pollutant will double by 1990. And there will be increased pressure for mobile sources to take up the slack, both by even tighter exhaust standards for autos and by more stringent transportation controls.
Some critics have argued that increased coal use is incompatible with the Clean Air Act and have called for relaxation of the act to meet energy goals. This committee has consistently taken the opposite view: The way to increase the acceptability of coal as a fuel is to insist that it be burned cleanly.
The President has also emphasized this point by supporting a requirement that all new facilities use best available control technology and by supporting a strong provision on prevention of significant deterioration. The administration's assessment indicates that its energy goals can be achieved without endangering the public health or degrading the environment.
Of course, the conversion to coal will be somewhat constrained in nonattainment areas where air quality standards are already being exceeded. The President's national energy plan points out that:
Utilities and industrial facilities will be asked to convert to coal without sacrifice of air quality standards. It is recognized that, in areas with serious air pollution problems, it may be necessary to continue burning oil in order to protect public health.
As for cost, clean burning of coal costs somewhat more than uncontrolled burning of coal, but it is worth it. And in most cases it will be cheaper than burning expensive imported oil. If firm environmental requirements are maintained now, while the price of coal is relatively low, even if coal prices rise, that increase will be limited. The price of coal will be sufficiently less than the equivalent price of oil to allow for transportation and pollution control costs. And the cost of electricity to the consumer will still be less than it would be with imported oil.
In some urban areas, direct burning of coal in conventional boilers may not be possible because of air quality requirements. But even there, technology offers some hope for alternatives. Fluidized bed combustion removes pollutants within the boiler even as the coal is burned. Although this technology is not available yet for large utility boilers, smaller pilot plants have been tested, and it can be used in smaller industrial boilers. Another option is low Btu gasification, a process that has been used commercially for many years in Europe. The gas produced is not of high enough quality for it to be economic to ship in the interstate pipelines, but it can be produced from coal onsite for industrial uses. And it is a process that is inherently cleaner than direct burning of coal.
Coal conversion is also connected with auto emissions, as pointed up in testimony received by the committee. Douglas Costle., Administrator of EPA, said:
While emissions of NOx (nitrogen oxides) are approximately the same in 1985 with or without the National Energy Plan, NOx emissions are projected to be 25 percent above 1975 levels.
To hold that NOx increase down to that 25 percent requires an automobile emissions standard of 1 gram per mile NOx and accelerated implementation of new source performance standards for stationary sources. But if the Griffin-Riegle automobile amendment is adopted and current new source performance standards remain, the NOx level in 1985 will be 60 percent higher than 1975. That would mean an additional 9 million tons per year of NOx emissions nationwide. In that event, it is not likely that public health considerations will permit many conversions to coal.
Thus, adoption of relaxed automobile standards as proposed by the Griffin-Riegle amendment translates into even more limitations to growth in nonattainment areas, even more limitation of growth in nondegradation areas, and more harm to public health. Thus, the automobile emission standards are not simply arbitrary bureaucratic judgments. They should not be relaxed and if they are, we must be prepared to face the adverse consequences on the coal conversion program as well as those on public health.
Thus, the Clean Air Act and these amendments are a useful tool, not a barrier, as we strive toward the twin goals of energy sufficiency and environmental quality.
VI.—OTHER ISSUES
EMISSION LIMITATIONS
The 1970 Clean Air Amendments included a requirement that State implementation plans impose "emission limitations." This term has been the subject of controversy, litigation, and dispute. These 1976 amendments provide a statutory definition of the phrase "emission limitation" to make clear the intent of the 1970 law — as upheld in numerous judicial decisions — that the basic strategy for implementation of air quality programs must be premised on continuous emissions control. Intermittent controls or dispersion techniques are unacceptable as a substitute for continuous control of pollutants under this Act.
This clarification of existing law is grounded on these factors: First, intermittent control strategies are, as a practical matter, unenforceable by air pollution control agencies. Such strategies require elaborate monitoring and forecasting capability. Implementation relies on the polluter's ability to predict weather conditions and willingness to curtail production in response to those predictions. At the same time, few air pollution control agencies have the resources to police these strategies to assure that a polluter does in fact curtail production on a timely basis. In addition, they can cause unacceptable disruptions in production and employment.
Former Administrator Russell Train recently summarized his Agency's position in this way:
In the area of ICS, we have determined that such methods are inherently pliable and difficult to enforce. EPA's view has been supported by the Department of Commerce Technical Advisory Board which has found in its 1975 Report on Sulfur Oxide Control Technology that intermittent control systems create administrative and financial difficulties which could prevent effective enforcement. The report also states that under certain circumstances the costs of such a system would approach that of continuous emission control measures. The National Academy of Sciences has also supported the EPA position.
Without emission limitations there would be no fixed end point when compliance would be achieved. And, even if air quality standards were enforceable, it would have to be on a constant, continuous day-by-day basis: There would be no basis for judging the performance of one source against another in regard to air quality effect in a multi-source area because each source would have no specific, legally enforceable requirement to meet.
There would be no credible measure of air pollution control against which the public would judge the performance of the polluter. And, most important, there would be no legal basis against which to take an action if the polluter failed to perform. This is particularly true for citizen enforcement.
Mr. Benjamin Wake, Administrator of the Division of Environmental Sciences of the Montana Department of Health and Environmental Sciences, stated to the Subcommittee on Environmental Pollution in April of 1975:
If it was the intent of the Congress, and I do not believe it was, to make the country uniformly dirty then the attaining of the national ambient air quality standards by use of the intermittent control system will achieve those ends in short order.
Second, continuous emission reduction measures are available, they are reliable, and they are economically justified. Available measures for continuous emission reduction include use of fuels which are low in sulfur or ash, and techniques such as desulfurization of fuels, coal cleaning and washing, flue gas cleaning, and more effective combustion engineering. The choices among such measures or the combination of measures to achieve the level of emission control set by the air pollution control agency rests with the owner of the source. The use of intermittent controls is appropriately reserved for air pollution emergencies.
Third, there is increasing evidence of the long range transport of pollutants that become sulfates, acid rain, and other phenomenon affecting human health, vegetation and soils, but leaving no definable plume that is traceable back to the source.
In a report for the committee. the National Academies of Science and Engineering found that dispersion measures may exacerbate the formation in the atmosphere of acid sulfates and nitrates from the sulfur and nitrogen oxides emitted from fuel burning sources. These derivative pollutants are thought to be more toxic forms than the oxides of sulfur and nitrogen that are actually emitted at the smokestack and are measured in the vicinity of the source.
It is recognized that the source controls may not be available to achieve the full reduction required of a particular source under particular circumstances. In such cases, supplementary programs can and should be used on a temporary basis until continuous controls are developed. But this flexibility occurs only after compliance with continuous emission limitation requirements.
EPA will be expected to review existing State implementation plans and require revision in any that depend upon dispersion techniques rather than continuous controls. Where necessary, State implementation plans will have to be modified. This injunction also affects the provisions of State plans which permit tall stacks.
Former Administrator Train stated on April 9, 1976:
... EPA's position on tall stacks and ICS are founded upon a pre-existing and longstanding opposition to an increase of the total atmospheric burden of sulfur oxides. Prior to EPA's creation, the Federal officials had argued that dispersion methods of air pollution control would not guarantee that air quality goals would be met at the ground level. The former National Air Pollution Control Administration (NAPCA) consistently opposed the use of tall stacks as the primary means of sulfur dioxide control because of their effects on the formation and dispersion of fine particulate acid sulfates, visibility conditions, the health of exposed populations, and the acidity of rainfall. Information collected since 1970 has reaffirmed these NAPCA assessments. Thus, ... ample evidence exists to support concerns over total atmospheric sulfur loading and the use of tall stacks.
The recently promulgated guidelines setting forth the agency's tall stacks policy, however, does not fulfill this policy pledge.
On February 18, 1976, the Assistant Administrator for air pollution programs published guidelines of the Environmental Protection Agency's position on the use of "tall stacks" and "supplementary control strategies" as control strategies under the Clean Air Act. The guideline was ostensibly published as a response to three U.S. circuit court of appeals opinions. The courts have permitted "tall stacks" and "supplementary control strategies" only on an interim basis and only after the maximum imposition of constant emission reduction measures.
The guidelines are considerably less protective of the environment than the courts' decisions require.
Far from prohibiting the construction of tall stacks or the use of intermittent controls, the guidelines provide that once minimal emission control requirements are met, polluters are encouraged to substitute unlimited stack height for any further control of emissions.
As the courts have held, the act prescribes how air quality standards must be met — neither EPA nor the States may permit a proposed plan to meet the requirements by using tall stacks or other dispersion devices or systems.
A policy of encouraging "tall stacks" will increase the burden of pollution. Long range transport of pollutants will be exacerbated. There is no support in the Clean Air Act for such a policy. Certainly such a policy would be wholly inconsistent with the policy to prevent significant deterioration.
SECTION 112
There has been concern expressed that design standards cannot be used when there is no margin of safety for a hazardous pollutant. However, as the report's discussion of asbestos shows, such a blanket rule is not intended. Indeed, such a rule could lead to EPA avoiding use of section 112 to regulate pollutants which have no apparent threshold of effects. Where numerical emission standards can be used, they are required. But, wherever they are impossible or infeasible, the use of design, equipment, and operational standards, even for pollutants such as asbestos — where EPA has concluded that no margin of safety exists — is appropriate.
EPA might also be reluctant to list pollutants under section 112 because of a belief that, once the section is invoked, the Agency could not decide that another section or another law such as the Toxic Substances Control Act is a more appropriate regulatory vehicle. This is not the case, and the Agency should not list pollutants under section 112 because of a belief that it is inflexible in that manner. The emissions standard would still need to be set, but the means to achieve that standard can be the implementation of a pre-production prohibition or regulation pursuant to the Toxic Substances Control Act.
EPA REPRESENTATION
The committee has been concerned about the adequacy of representation provided to EPA in the past by the Justice Department. On the strength of a personal commitment made by Attorney General Griffin Bell to remedy past problems, the committee did not include a specific amendment to transfer representation formally to EPA. However, it is important that procedures be worked out between EPA and the Justice Department to provide for EPA lawyers to represent the Agency in those classes of cases where familiarity with the subject matter is paramount, such as petitions for review of EPA regulations. In such cases, EPA should be able to take the lead on briefs and oral arguments without a duplicative layer of review by Justice Department attorneys.
It is also important that, even where the Justice Department takes the lead, there be appropriate means for insuring the incorporation of EPA's views on legal, policy and technical matters and for participation of EPA lawyers.
VII. AUTO EMISSIONS
In 1970, the Clean Air Act established statutory standards for automobiles because it was recognized that the automobile presented the single most difficult national pollution problem. Auto emissions continue to be a threat to public health.
Congress recognized in 1965 that, as a national industry, automobiles required national emission regulation. Except for California, which is unique both from a product distribution and an air pollution point of view, the argument in 1967 for preemptive national standards was defensible.
The underlying principle of national emission standards was, and should continue to be, that those national standards would be adequate to achieve health related air quality standards in the areas with the most difficult problems. Statutory standards established in 1970 reflected that policy. This legislation continues that policy.
STANDARDS IN THE COMMITTEE BILL
The committee has made two modifications of the statutory standards adopted in 1970. First, a new standard for oxides of nitrogen emissions is proposed which increases by 21/2 times the level of emissions of that pollutant which will be permitted. Second, except for a minimum number of vehicles, the achievement of that new statutory standard for oxides of nitrogen has been delayed until 1980.
In other respects, this bill represents a modest extension of time for the auto industry to bring emission control technology into conformity with fuel economy and other objectives. The bill continues the basic purpose that health related air quality standards associated with auto emissions should be achieved uniformly throughout the country.
The committee bill requires compliance with the statutory standards of .41 HC, 3.4 CO, 1.0 NOx in 1980.
Also, the committee bill requires manufacturers to produce 10 percent of their 1979 fleet at the statutory levels required for all cars in 1980. This phase-in is intended to provide a period during which new emission control systems meeting the statutory requirements can be introduced and modified if necessary before 1980. However, the remaining 90 percent of production would continue to meet the 1977 requirements. This will enable manufacturers to maximize their efforts on the statutory standards, and to minimize disruption which would occur were another incremental jump mandated as in the Administrator's proposal.
Equally important, the 10 percent phase-in can be used to evaluate the implications of the technology which, in all probability, will be used in 1980.
The requests for a further delay in auto emission standards were rejected by the committee after careful analysis.
Such a delay would merely give the automobile industry further time to continue to lobby Congress for further extensions.
Such a delay would remove the kind of pressure that has been absolutely essential in forcing the adoption of improved auto emission pollution control technology.
Such a delay would demoralize many local communities which have made efforts to develop control strategies to reduce auto emission pollution in their area.
The committee had before it a number of auto emission proposals.
These include the standards in the existing law, S. 252, the provision which passed the Senate last summer; S. 253, the conference report which died at the end of the previous Congress; S. 251, Senator MUSKIE's bill which gives a modest extension of the auto standards; S. 919, which would permanently relax two of the three pollution standards and delay final deadlines to 1982; and the proposal by President Carter announced on April 18 of this year.
There was no convincing evidence presented to the committee during its hearings in February of this year to suggest that the timing of the auto emission standards adopted by the Senate 9 months ago should be altered for reasons of public health needs, technological feasibility, cost, fuel economy, or the economic condition of the auto industry.
TECHNOLOGICAL FEASIBILITY
There is no doubt that the industry has now and has had for some time the technological capability to meet the standards in the committee bill within the time frame required.
In March 1975, former Administrator Train stated that—
We found that oxidation catalyst technology to meet the hydrocarbon and carbon monoxide statutory standards (in 1977) was available.
In June 1975, the National Academy of Sciences reported that—
Attaining these levels (0.41. grams per mile HC and 3.4 grams per mile CO.) by 1978 is both feasible and worthwhile.
And—
With respect to nitrogen oxide emission control: It is probably feasible with catalyst technology to achieve the statutory emission standards for NOx (0.4 grams per mile) in 1978.
Independent evidence presented 2 years ago from the National Academy of Sciences and the Environmental Protection Agency indicated that automobiles could meet the ultimate emission standards by 1978 on many cars, and on all cars by 1978. If we had required that some 1978 cars meet those final standards, we would have assured that the industry would direct their efforts to meeting those standards. The manufacturers and the Congress both know this would have made subsequent appeals for delay lack credibility.
But the Congress did not take the hardest line possible, despite the achievability of such a mandate. The auto industry has been given the benefit of the doubt. The industry got more time and as a result the length of time Americans are exposed to unhealthy air is increased.
And what was the response of the industry? They participated in the organization of a filibuster in the Senate last year which killed the conference report on amendments which gave them relief.
Another year has passed, and there can be no question now that the industry can produce clean cars by 1980. The question which remains is whether they will be required to make use of their capability to manufacture clean cars.
All of the U.S. auto companies have stated they can meet the final statutory standards contained in the Senate bill, with varying estimates on cost, fuel penalties and lead time. Ford testified in February 1977 that it could meet the 1980 standards of S. 252 on 100 percent of their models with three-way catalysts, with a 5 percent fuel penalty. By 1981 Ford expects to meet the standards "with minimum fuel economy penalties." Both Ford and General Motors plan to utilize the three-way catalyst, the most promising new technology, on some of their 1978 California models in the fall of 1977 as a major production trial.
In fact, EPA has tested a number of 1977 California cars which had emission levels lower than the statutory 0.41/3.4/ 1.0 standards of the Senate bill. The Environmental Protection Agency certification employed the standard Federal test procedure, including a deterioration factor for 50,000 miles. The California cars which achieved these emission results were equipped with a conventional oxidation catalyst, exhaust recirculation and air pumps, not any new technology, and were targeted for the less stringent California standards of 0.41 hydrocarbon, 9.0 carbon monoxide and 1.5 nitrogen oxide. Those cars include American Motors' Pacer and Matador, Chrysler's Aspen, Ford's Maverick, and General Motors' Caprice, Impala, Monza, Sunbird, and Skyhawk.
It is notable that this list includes vehicles with a wide variety of weights, sizes, engines, and manufacturers. And these cars achieved the standards by accident. Does anyone believe that these standards could not be met on each and every car, if the companies really tried?
The argument is made by the industry that these represent only a few cars, which is quite different from meeting standards across a wide range of model lines. However, to show how close their entire production has come without even trying, it can be noted that the median emissions for each manufacturer range from 0.4 to 0.6 grams per mile of hydrocarbons, 4.7 to 6.2 grams per mile for carbon monoxide, and 1.2 to 1.7 grams per mile of NOx. There is little doubt that between now and 1979-80, these figures can be improved the rest of the way. The industry can do it. The only question is will they be required to?
The allegation that the auto industry cannot technically meet the Senate 1980 deadline due to insufficient lead time is not borne out by the facts. The three-way catalyst has been the focus of the development efforts of the U.S. industry for the past 3 years It has now been sold commercially for one model year. The crucial barriers have been the use of carburetor with this system rather than fuel injection, and the durability of the oxygen sensor. Both of these technical questions have been resolved and a full scale production program can proceed.
As the focus of the debate has changed, the industry has resorted to its last available defense — withholding information on their development programs, which indicate a capability to meet statutory emission standards with ease. For example, companies are required by law to supply data annually to EPA. EPA engineers use this information to prepare an assessment of emission control technology development. This past year, EPA learned of the existence of a large General Motors diesel program. The results of the development of the diesel to meet the statutory standards are extremely promising; however, this information was given to EPA by an independent source, not by General Motors.
Numerous other examples of the withholding of technology information by domestic and foreign auto manufacturers are cited in the 1977 EPA Technology Assessment Report.
I would like to cite a second example of this obstruction of information which disturbs me greatly.
On April 27, 1977, I received a letter from the President of the Mitsubishi Motor Corp. of Japan. He stated that they had developed a car which met all of the original "Muskie standards," with improved fuel economy. He stated that the new engine "does away with the old idea that gas mileage must suffer if NOx is reduced."
On May 23, 1977, an article appeared in Automotive News describing a second letter to me from Mitsubishi. The letter was quoted as follows:
However, lest there be any misunderstanding, I would like to make it clear that, given a more reasonable NOx standard, fuel economy improvements could be even greater.
I did not release the letter, because it had not even arrived at my office. It was released by the Chrysler Corp., for whom Mitsubishi makes the Plymouth Arrow and the Dodge Colt. This smacks of the same intimidation tactics used 5 years ago by the auto companies on their catalyst suppliers. The threat then was cancellation of supply contracts if the catalyst manufacturers spoke out regarding the true capability of catalysts to reduce auto emissions.
I am greatly disappointed that an American company feels the necessity to downplay its own supplier's accomplishments, rather than welcoming the technological achievement as a means of getting on with the cleanup jobs.
I ask unanimous consent that these two communications be printed in the RECORD.
There being no objection, the material was ordered to be printed in the Record, as follows:
MITSUBISHI MOTORS CORP.
Tokyo, Japan,
April 27, 1977.
Hon. Senator EDMUND S. MUSKIE,
Russell Office Building,
Washington, D.C.
DEAR SENATOR MUSKIE: In 1970 you proposed the "Muskie Act" with the belief that international cooperation was essential in order to save our earth from air pollution. As you may know, special regulations have been established in Japan, based on your proposals in order to control exhaust emissions.
It is our great pleasure to inform you that we at Mitsubishi Motors Corporation have developed and released, as of April 27, a new type of engine which will clear the Japanese regulations for 1978, the strictest in the world.
This new engine is named the "MCA JET," because it incorporates a jet valve in it. This is extremely effective in reducing NOx, the subject to the control standards, as well as controlling CO and HC emissions. Moreover, it does away with the old idea that gas mileage must suffer if NOx is reduced, as it provides even better fuel economy than 1973 models (33 MPG for 1200 cc model for Japanese 10 mode drive which correspond to city drive somewhat comparable to U.S. II mode).
We would like you to know that this technical breakthrough is to a large part attributable to the fact that Mitsubishi engineers were inspired by your own vision.
We also want to assure you that we will continue searching for more and better technical developments, keeping in mind our goal of harmony among man, the environment, and the automobile.
To announce our development, and to publicly thank you for your inspiration, we are placing an open letter such as you see in the enclosed copy in major newspapers in Japan and perhaps later in the United States. We hope you will be pleased by this turn of event.
With deepest appreciation, we remain, Sincerely yours,
MITSUBISHI MOTORS CORP.,
TOMIO KUBO, President,
MAY 17,1977.
Hon. Senator EDMUND S. MUSKIE
Russell Office Building,
Washington, D.C.:
Further to my April 27, 1977 letter to you. I would like to say again that Mitsubishi Motors Corporation's new MCA jet engine is extremely well engineered to achieve the emission standards established by the Japanese Government using the Japanese test procedures and provides improved levels of fuel economy.
However, lest there be any misunderstanding I would like to make it clear that given a more reasonable NOx. standard, fuel economy improvements could be even greater. We are proud of our technical achievements in the MCA jet engine and we are confident that with a reasonable NOx standards we can achieve even higher levels of fuel efficiency
Respectfully yours,
TOMIO KUBO, President.
Mr. MUSKIE. Mr. President, this is simply additional evidence that we have arrived at the last frontier. We cannot stop short of our goal, after the long, hard battles of technology forcing, and industry intransigence have been fought and won.
I would remind my colleagues of the risk of any further delay. When too much time is granted the auto industry, they use that time to petition for further delays and weakening of standards.
It is useful to remember that, with the exception of NOx, present cars being produced meet standards no better than the industry volunteered to achieve at White House meetings 1 year prior to the enactment of the 1970 Clean Air Act. Other than reducing NOx and lead emissions, the act has primarily served to hold the industry to its self-defined goals. This was no easy accomplishment, but beyond that, the basic objectives imposed by Congress in 1970 have been delayed subsequently by the Administrator or by Congress.
GRIFFIN-RIEGLE AMENDMENTS
The supporters of the Griffin-Riegle auto emission standards assert that the permanent relaxation of the carbon monoxide and nitrogen oxides standards are necessary for air quality, energy and economic reasons. To the contrary, the Griffin-Riegle schedule will have a severe adverse impact on public health, fuel economy and cost to the consumer.
HEALTH IMPACT
Harmful effects on human health from the three regulated automobile related pollutants have been reasonably well identified. These effects include premature death, aggravation of heart and lung disease, increased acute respiratory disease, aggravation of asthma, eye irritation, chest discomfort, and temporary cough and headache.
The most vulnerable groups of the population are the old, the young, and those with heart and lung disease. Together these groups constitute about one-fifth of the population. The National Academy of Sciences estimates that auto emissions may account for as many as 4,000 deaths per year and 4 million days of illness restricted days. The National Academy of Sciences has also concluded that a relaxation of the statutory standards is not justified if the most susceptible groups in the population are to be protected.
I would like to discuss the need for each of the three regulated pollutants separately, Each standard has been set at a level required to protect against adverse health effects; therefore, achievement of each of these levels is essential to our goal of eliminating the automobile's contribution to the health hazards due to air pollution.
Thus far, we have not made much progress toward that goal. Since the passage of the Clean Air Act of 1970, the net changes in total automotive emissions have been reduced by 14 percent for hydrocarbon, 16 percent for carbon monoxide, and an increase of 16 percent in nitrogen oxides.
Hydrocarbon standard: Hydrocarbons emitted into the air from automobiles react with nitrogen oxides — also emitted from the auto, and regulated by law — in the atmosphere to form photochemical oxidant — smog.
Health effects associated with oxidant are aggravation of asthma and lung disease, respiratory irritation in healthy persons, increased eye irritation and changes in heart and lung function in healthy persons. Of the 313 air quality control regions in this country, 170 regions still have not achieved the air quality standard for oxidant set at a level to protect public health from adverse effects.
There is general agreement that the 0.41 hydrocarbon standard should be imposed as rapidly as possible to mitigate the pervasive smog problem. Even with that stringent standard, a strong vehicle inspection and maintenance program, and control of hydrocarbons from stationary sources such as refineries, the health standard for oxidant — smog — will still be violated in 26 or more air quality control regions in the year 2000.
The Griffin-Riegle timetable which delays imposition of the 0.41 hydrocarbon standard will cause 4 percent more violations of the oxidant health standard between 1980 and 1990 than the Senate committee bill.
There is no reason to delay the final statutory auto emission standard of 0.41 grams/mile beyond 1970, as S. 919 would, given the availability of technology now to meet the 0.41 grams/mile standard, and the critical need to control hydrocarbons now in order to achieve healthy air.
CARBON MONOXIDE STANDARD
Carbon monoxide is the most harmful of the pollutants emitted by the automobile. In sufficiently high concentrations, it can cause death. Carbon monoxide exposure also affects the central nervous system, the heart, human reflexes, hearing, and exacerbates the incidence of heart disease. Eighty air quality control regions still have not attained the carbon monoxide standard at which adverse health effects occur. Monitoring data from New York City shows carbon monoxide levels 200 to 400 percent above the health standard.
The Griffin-Riegle bill proposes to almost triple the ultimate statutory carbon monoxide standard from 3.4 grams-per-mile to 9.0 grams-per-mile, based on theoretical calculations that every city will meet the ambient CO standards by 1990, even at 9.0 grams per mile. This is an unrealistic projection, since test data from autos on the road show that carbon monoxide emission levels are double the amount permitted by the current standards on the average. In some cases, carbon monoxide emissions have been almost as high as those from uncontrolled cars because of carburetor maladjustments. The air quality projections used by the proponents of relaxation do not take this severe deterioration into account.
The Griffin-Riegle 9.0 carbon monoxide standard will cause between 65 and 130 percent more violations of the health standard between 1980 and 2000 than the Senate committee bill. By the year 2000, the Senate standard leaves only 5 urban areas in violation of the health standard, while the Griffin-Riegle standard leaves 12 areas in violation of the health standard.
This argument for relaxation of the carbon monoxide standard surfaced only in January 1977 despite the ongoing debate on this subject for 7 years. The National Academy of Sciences and the Environmental Protection Agency agree that the 3.4 grams per mile standard contained in the committee bill is necessary to protect public health.
NITROGEN OXIDE STANDARD
Nitrogen oxides react with hydrocarbons to form oxidant, and thus is associated with the health hazards of oxidant. Nitrogen oxide alone, however, is known to produce adverse health effects such as acute respiratory illness, increased bronchitis, morbidity in children, decreased lung functions in children, and increased susceptibility to respiratory infection.
The original statutory NOx standard was set at 0.4 grams/mile in order to protect public health. During the past 7 years, the exact level of nitrogen oxide control required has been a matter of much debate. The committee determined on the basis of scientific data that a revised standard of 1.0. grams/mile would meet public health needs, and also stimulate new, improved control technology.
The Griffin-Riegle bill would relax the NOx standard an additional 100 percent, to 2.0 grams/ mile, on top of the relaxation of 21/2 times in the committee bill.. Although the Griffin-Riegle bill allows for the possibility of a 1.0 NOx. standard eventually, in 1982, any auto company may apply for waivers to the current 1977 standard of 2.0 indefinitely. If past history is any guide, the auto manufacturers can expect to receive such waivers. I suggest that in order to assess the Griffin-Riegle proposal, one must assume a 2.0 NOx standard indefinitely.
At the 2.0 grams per mile NOx standard of the Griffin-Riegle bill, even in the year 2000, 1 million excess attacks of respiratory disease are projected to occur in children. This health impact is almost halved by the adoption of the 1.0 NOx, standard of the committee bill.
The Griffin-Riegle proposal would also cause almost 2 million excess days of restricted activity from lower respiratory disease in children. This health impact is also approximately halved by adoption of the committee bill.
The sponsors of S. 919 base their NOx. waiver on the uncertainty as to the level of NOx. control needed to protect public health. The uncertainty surrounds the necessity for a 0.4 NOx, standard; to the knowledge of the committee, no scientific or medical body contends that a level as high as the 2.0 NOx. standard would satisfy public health requirements. S. 252 accommodates this uncertainty by maintaining the 0.4 NOx level as a research objective. Auto manufacturers must submit prototype cars at this NOx level to EPA annually. Should the EPA Administrator determine the necessity for a standard more stringent than 1.0 grams per mile NOx, of S. 252, the existing law provides authority to tighten the standard.
Air quality projections show that even with stringent stationary source controls, total NOx emissions will rise over the next 20 years at any automotive emissions standard above 0.4 grams per mile. At the 2.0 NOx. standard of Griffin-Riegle, the number of urban areas not meeting the public health standard can more than double by the year 2000. If a short term ambient air quality standard is adopted in the range being considered by the World Health Organization, there will be widespread violations in almost all areas of the country even at the most stringent automotive standards. The number of violations would be cut substantially only at the 0.4 level.
The possible NOx standard waiver available in S. 919 for model year 1982 only creates more of the same uncertainty in the final standards which has been a major complaint of the auto companies in the past. The possibility of a waiver also creates a moving target, since another technological step would have to be taken to meet the 1 NOx standard in light of existing evidence that public health protection requires the more stringent standard. The industry has opposed the stepping stone approach in the past, which requires new effort at each level of control rather than allowing them to focus all effort and resources on achieving one set of standard efficiently.
Technology to meet 1 NOx is available. Some 1977 California cars are already meeting the 1 standard, and the average NOx. emissions of California cars are between 1 and 1.5 using conventional technology.
FUEL ECONOMY
Since the energy crisis there has been a great deal of discussion of the need for fuel economy in automobiles and the relation between fuel economy and emission standards. In 1975, the Congress passed a bill mandating a 43 percent improvement in fuel economy by 1980, with further gains to be achieved thereafter. The automobile manufacturers have continued to call for further delay in achieving the statutory emission standards since that time, in order to make it easier to reach the fuel economy goal.
Some of the automobile manufacturers have projected figures for various emission requirements which suggest a loss of fuel economy of 10 percent or more if they must meet the 1980 standards adopted by the committee. Senators GRIFFIN and RIEGLE make the same allegations on their behalf, and allege that the Senate committee bill will prevent the development of alternative, fuel efficient technologies.
However, EPA has stated on several occasions that "there is no inherent relationship between exhaust emission standards and fuel economy." Actual fuel economy depends on the choice of technology chosen. Consider the following examples:
The most significant tightening of auto emission standards to date occurred in model year 1975. Although Chrysler Corp. testified that these standards would cause a fuel penalty, their cars realized a 12 percent fuel economy gain.
General Motors estimated a substantial gain, and their actual experience was twice the fuel economy improvement predicted.
In model year 1977, the NOx. standard was tightened by 33 percent. The auto industry has always claimed that this standard would cause the greatest fuel economy penalty. Chrysler estimated a 7 percent fuel economy loss; the actual loss was zero. General Motors estimated a 5 percent loss. The actual change was a 9 percent improvement between 1976 and 1977 model years.
The history of automobile fuel economy over the past 20 years illustrates well this lack of a detrimental relationship between emission control and fuel .economy. The chart below illustrates the decline in fuel economy long before the advent of emission controls. It also indicates that the biggest improvement occurred in 1975 — 13.5 percent over 1974 — when the standards were significantly tightened and the industry used a new, more advanced emission control technology.
In 1976, at the same standards, there was an additional 10 percent improvement, and in 1977, another 3.3 percent improvement for a total of 26.8 percent increase over the fuel economy of 1974 models.
[Table omitted]
The Griffin-Riegle bill proposes final standards of 0.41, 9.0, and 2.0 for the avowed purpose of allowing the auto companies to continue to use the existing, inefficient technology now in use to meet the 1977 California standards which are more stringent. The average fuel penalty of these cars was 11 percent worse than 1977 Federal cars. This illustrates the result of standards which can be met by adding on equipment to existing technology. The auto industry will do only the technological minimum when a jump to more advanced emission control technology is not required, but is a voluntary option. One must associate that fuel penalty with the Griffin-Riegle proposal, since it cannot be assumed in the absence of statutory impetus, that the manufacturers will go to a higher level of technology voluntarily.
The Senate committee bill, on the other hand, sets standards which require the auto manufacturers to go to the next level of technology, which is more efficient, and more effective to control emissions. The only way the fuel penalty of the 1977 California cars can be avoided with the Griffin-Riegle standards in effect is if the manufacturers choose to use the next level of technology, as would be required to achieve the standards in the Senate bill in 1980.
In contrast to the 11 percent fuel economy penalty of existing technology, the Ford Motor Co. estimates that the Senate standards could result in a fuel penalty of 5 percent in 1980, the first year, but better fuel economy or at least no fuel penalty in 1981.
EPA has stated that the impact of the Senate standards on fuel economy would range from plus 2 miles per gallon to minus 2 miles per gallon, depending on the technology chosen.
The advanced technology which already exists to meet the Senate committee standards improves the average 1977 fuel economy by 10 percent. This is a savings of 105,000 barrels of oil a day.
The 1.0 NOx standard in the committee bill will also allow production of alternative, fuel efficient engines. The National Academy of Sciences has identified five technologies that can meet the Senate committee standards — 0.41/3.4/1.0: Dual-catalyst or three-way catalyst on conventional engines, CVCC stratified charge — Honda, CCS stratified charge — Ford and diesel. These are in addition to longer term alternative engines which can also meet the Senate committee standards, including Sterling cycle, Rankine cycle, gas turbine, and electric or hybrid engines.
As for the diesel, the National Academy of Sciences assessment that they can meet 1.0 NOx is confirmed by a 1977 VW Rabbit diesel which has already achieved 0.8/1.0/0.8 in certification tests. Teledyne Continental Motors has studied the diesel for ERDA and finds that they can achieve 30 miles per gallon on the city cycle with a 3,000 pound car, while meeting emissions levels of — 0.24/1.2/0.2. And General Motors has been working with Opel on diesel development. Using electronic exhaust gas recirculation, they obtained emissions of — 0.27/1.30/0.71 — with fuel economy of 26 miles per gallon and no fuel penalty. Thus, at this early stage of commercial development of diesels for passenger cars, there is already strong evidence that they can meet the Senate committee standards without undue difficulty.
COST OF NEW AUTOMOBILES
Senators GRIFFIN and RIEGLE also allege that the cost of the Senate standards will be prohibitive. This is not the case.
The sticker price increase of cars due to emission controls have not been unreasonable, even as auto standards have become more stringent. Bureau of Labor Statistics since the inception of the Federal emission control program bear this out.
A specific example of this trend is the 1977 Volvo 3-way catalyst system sold this year. It has exceeded both California and Federal emission standards, and has cost the customer only $25 to $50 more. This car has been sold in California throughout 1977. Lifetime savings due to 10 percent better fuel economy exceed this initial first cost by $275 to $300. This is similar to the advanced technology which the domestic auto manufacturers have stated they will use to meet the Senate standards in 1980.
The Senate committee bill will result in substantial savings to the consumer. The current technology which the auto companies have stated they would use to meet the Griffin-Riegle standards carries an 11 percent fuel economy penalty. Advanced technology which must be used to meet the Senate committee standards could improve the average1977 fuel economy by 10 percent. The 21 percent improvement results in a $850 lifetime savings to the car owner. After deducting the EPA's estimated $250 first cost of the equipment, the Senate standards result in a net savings of $400 to the consumer. This is a conservative savings figure, since the EPA equipment cost estimate includes items which may not be needed, such as a $70 start catalyst.
EMPLOYMENT
Senators GRIFFIN and RIEGLE allege that the implementation of the Senate committee standards will result in massive job losses in the motor vehicle and related industries, and negative effects on the entire national economy.
These assumptions of a catastrophic decline in auto sales and resultant layoffs have no basis in past history. In 1973, the industry set a record for retail sales of 11.5 million cars; 1974 sales dipped 23 percent in the midst of a national recession, an oil embargo, dire projections that the gas shortage was permanent, and that gasoline would either be rationed or become prohibitively expensive.
The case was never made that the decline in sales and job losses were due to emission control requirements. Subsequent sales data indicate, to the contrary, that auto sales are most sensitive to the general health of the economy, and to the disposable income of consumers.
For example, by 1976, auto sales had once more climbed to over 10 million units. For 1977 models, the nitrogen oxide standard was tightened by 33 percent, yet sales for this year are substantially higher than those for model year 1976. The most recent figures show a 12.5 percent increase for the month of April, compared to April 1976. Henry Ford, chairman of the board of the Ford motor Co., has predicted 1977 auto sales of 11.2 million units, the second highest sales in the history of the industry.
Nor will future emission control requirements lead to unemployment or poor sales either. EPA projections indicate that 185,000 new jobs in the U.S. auto industry would be created through increased sales between now and 1985 if the Senate committee standards are adopted.
WARRANTY OF EMISSION CONTROL SYSTEMS
Senators GRIFFIN and RIEGLE allege that only by reducing the existing 5-year or 50,000-mile performance warranty for emission control systems can the competitive position of the independent parts and service dealers be improved.
The performance warranty was included in the 1970 Clean Air Act to protect the consumer and to assure continued air quality improvement by requiring that a vehicle will continue to meet the applicable emission standards over 5 years or 50,000 miles, one-half of the average life of a car on the road.
Reduction of the performance warranty to 18 months or 18,000 miles — less than one-fifth of the average life of a car — will not achieve the stated objectives and will do serious harm to other objectives.
It is anti-consumer, because it would shift the burden and expense of repairing a faulty emission control system from the manufacturer to the consumer whose car fails a State inspection after 18,000 miles.
It eliminates any financial incentive for manufacturers to produce an emission control system which functions for the car's life since their financial exposure would only be for 18,000 miles.
The Federal Trade Commission has recommended two actions to prevent any possible anti-competitive effect of the existing warranty. S. 252 adopts these recommendations and three other measures to avoid any anti-competitive effects of the warranty. These provisions include:
One. Requiring all owners' manuals to contain instructions that maintenance does not have to be performed by the dealer or with the manufacturer's own parts;
Two. Making illegal any warranty provision that attempts to tie coverage to the use of the dealer's service and parts;
Three. Establishment of a program which will enable aftermarket parts manufacturers to certify that their parts perform as well as the auto manufacturer's — the auto manufacturers have no role in approving such certification;
Four. Specifying that a car owner may go anywhere to have required maintenance performed;
Five. A Federal Trade Commission study of any possible anti-competitive effect.
The 50,000-mile performance warranty has been law for 7 years now. Independent dealers now hold 80 to 85 percent of the service and parts business, and that proportion has actually increased since 1970 when the warranty provision became law.
The United Auto Workers are in favor of maintaining the 5-year 50,000-mile performance warranty. President Leonard Woodcock stated in February 1977:
We are basically in support of the 50,000 miles (performance warranty).
The Consumer Federation of America is "strenuously opposed to this anti-consumer amendment" to reduce the performance warranty to 18 months or 18,000 miles.
Consumer's Union, publisher of Consumer's Reports, states in opposition to the reduction of the performance warranty to 18 months or 18,000 miles:
In response to the five year warranty requirement promulgated by EPA, auto manufacturers have designed the control devices, and the various parts related to the performance of these devices, for substantially longer endurance than would be the case under a one year warranty. ... a reduction in designed durability would mean an increased incidence of repair for such devices and parts. This would add substantially to the consumer's cost of maintaining emission control devices to EPA performance standards.
The manufacturers have claimed that 400 parts are covered by this provision, but most of these parts are totally unrelated to emission performance. Some of these parts must be replaced at regular intervals. Some of these parts are designed to last the entire life of the vehicle. The Congress need not be concerned with either or those conditions. The question is whether or not the car which the consumer purchases meets the standards before it is purchased — at the end of the production line — and whether or not the car will continue to meet the standards under conditions of proper maintenance.
Having established through a proper production line test that each and every car made meets the standards — with appropriate deterioration factors — when it leaves the assembly line, as the current Clean Air Act requires, then the companies have an obligation to build a car which, when properly maintained, will continue to meet those standards in the hands of the consumer. Except in those instances where the manufacturer is able to demonstrate that the proper maintenance was not followed, the manufacturer must be financially responsible to bring the vehicle into compliance.
I want to underscore this point. The performance warranty is triggered by the existence of an in-use test combined with the existence of an inspection program and a penalty for failure to pass inspection. Although this provision of existing law has not yet been triggered, the bill requires establishment of the test procedure. It is then anticipated that over the next few years a number of localities will implement in-use testing programs.
Even though the manufacturer is required to produce each car so that it will meet the standards for 5 years and 50,000 miles, he is only liable for the repair costs when an in-use test exists and the vehicle fails to pass inspection and the owner is subject to a penalty.
Reducing the duration of the performance warranty as proposed will only reduce the incentive for the manufacturer to produce clean cars that will stay clean. It will not protect the consumer. It will not protect the aftermarket industry. It will protect the auto industry. It is an auto industry proposal and it should be so branded.
If the Congress wants to protect the auto manufacturer from the responsibility to produce a clean car that will remain clean, then I suggest that we consider elimination of the Federal emission standards altogether. We are perpetrating a hoax on the American people if we tell them to invest $100 or $200 to equip vehicles with emission controls and then tell them that the auto industry has no financial responsibility to insure that those vehicles will meet the standards after they are in the hands of the consumer. I will not be a party to that hoax.
If there is an anti-competitive aspect associated with this requirement in present law, then the committee amendments should be more than adequate to correct it. The manual for each vehicle must describe the elements for proper maintenance. Independent service operators can perform that proper maintenance and record performance of that maintenance in the owner's manual. On its face, that record would provide a rebuttable presumption which the manufacturer would have to overcome to avoid the burden of any costs resulting from the failure of a vehicle to pass inspection.
DEFECTS WARRANTY
The production or defects warranty in existing law requires that each element of the vehicle related to emissions must be designed or built so as to conform to auto emission standards at the time of sales, and must be free from defects which would cause the vehicle to fail to meet emission standards over the life of the vehicle. The consumer is thus protected if a specific part fails within 5 years or 50,000 miles, and it is shown to be defective at the time it fails.
The Dingell version of Griffin-Riegle would make the production defects warranty of existing law meaningless. S. 919, as proposed, would have required a consumer to prove that a defect in an emission control system, which occurred at any time prior to 50,000 miles, existed at the time of sale of the vehicle. This means that the consumer who discovered at 45,000 miles that a piece of equipment had ceased to operate, would have to prove that that defect also existed when the car was purchased. This is an impossible burden of proof to sustain, it is counter to the thrust of the Moss-Magnuson Act, and it goes against the established principles of products liability law. I am pleased the sponsors at least deleted this onerous provision. However, the Griffin-Riegle warranty amendments benefit only one party — the auto industry. The consumer would pay for an emission control system to deal with an air pollution problem which lasts the life of the car, but for which the auto industry would have no financial responsibility whatsoever. The aftermarket industry would lose much repair and maintenance work because none could be required of the car owner after 18,000 miles or 18 months under the terms of the warranty; and the public would have cars which can legally violate emission standards after 18,000 miles, and the resultant adverse health effects from dirty cars.
HIGH ALTITUDE
Senators GRIFFIN and RIEGLE allege that their provision dealing with emissions from automobiles in high altitude areas remedies the inequities of the current EPA regulations.
The Riegle-Griffin bill does not come to grips with the high altitude problem. The committee bill adopts a solution to the problem of the inferior operation of automobiles which is far preferable to deal with consumer and air quality needs.
The major problems now are: First, the availability of only 50 percent of all car models in urban high altitude areas; second, the inferior performance of those high altitude cars; and third, the loss of business by dealers in urban high altitude areas to nearby dealers who have all models available.
The Griffin-Riegle bill proposes to solve these problems by simply exempting the adjustment of emission control systems of high altitude vehicles from anti-tampering requirements of the law.
It maintains a separate requirement for cars in high altitude — about 3 percent of total sales — which insures that minimal effort will be directed toward improvement of that technology by the auto manufacturers.
The separate high altitude requirements do not alleviate the problem of a high altitude dealer's loss of business to dealers who have all models available.
The Committee bill prohibits all differential treatment for high altitude areas so that all low altitude models can be sold everywhere in the country.
From 1978 to 1980, all high altitude requirements are suspended, so that the auto manufacturers do not have to do anything additional for high altitude model cars; all model cars can be sold everywhere.
After 1980, all cars must comply with applicable auto emission standards at all altitudes. This provides 2 years for the perfection of existing technology which automatically compensates for any altitude change.
OTHER MOTOR VEHICLES
Control of mobile sources other than automobiles has lagged despite the fact that they can be regulated under the general provisions of the present Clean Air Act.
It is inequitable for automobiles alone to bear the burden of pollution control, when they only contribute, for example, 50 percent of the hydrocarbon pollution from mobile sources.
The committee intends that this situation be corrected and that all other classes of motor vehicles be required to achieve by 1980 a reduction of emission equivalent to that required for automobiles. Non-availability of technology would be the only reason for any delay.
To achieve this, this bill makes more specific EPA's authority to regulate heavy-duty vehicles and motorcycles. It is expected that EPA will use existing authority to regulate light duty trucks and other non-automobile categories of motor vehicles to meet this requirement.
TOTAL ANNUAL AUTO EMISSIONS
The need to meet tight standards is emphasized by the chart which shows total annual auto emissions 1970-85, attachment D.
The chart shows that if the Griffin-Riegle relaxation of 9 grams of CO is adopted the result will be emissions of a million tons of carbon monoxide in 1985, as contrasted with only 41/2 million tons if the 3.4 gram public health-based standard is implemented. Thus, for the sake of a freeze, we would be accepting four times as much emissions of this lethal pollutant. Emissions of smog producing hydrocarbons would follow the same pattern.
As for nitrogen oxides, the right hand chart shows that emissions rose after 1970, and have just dropped back to the 1970 level. If we were to freeze the NOx standard at the present level of 3.1 grams per mile as the administration and the auto manufacturers have suggested, by 1985 we still would be just about where we were in 1970 before NOx was controlled at all. This bill sets a standard which will allow a little more NOx — one-half million tons — than the present statutory standard. But it will reduce emissions by 2.2 million tons compared to the freeze. This is a significant 63 percent reduction from present emission levels.
The chart on in-use auto emissions against standards shows the standards which have been implemented and proposed to meet air quality needs. Compared to pre-controlled cars, the 1976 represent a reduction of 83 percent hydrocarbon, 83 percent carbon monoxide, and 11 percent nitrogen oxide. Compared to 1970 models as a base, the progress is 63 percent in hydrocarbon and 56 percent in carbon monoxide, while the standard set by Congress is a 90 percent reduction. We have made some progress, but more is clearly needed. We still must reduce hydrocarbon and carbon monoxide to about one-fourth and nitrogen oxide to about one-third of their currently allowed levels to meet our clean air goals.
COMPLIANCE TESTING
Because of the pressure of time and the controversy associated with major provisions of this bill, the committee did not try, in these amendments, to reemphasize existing authority in certain areas where the Administrator has failed to implement the intent of Congress. One such area relates to the extent to which cars which were certified to meet standards continue to meet these standards in-use for the required 5 years or 50,000 miles.
IN-USE AUTO EMISSIONS
The committee has substantial data indicating that the emission performance of cars in use, with few exceptions, is considerably poorer than the requirement of the law. The chart on in-use auto emissions against standards shows that not since 1969 has the average car met the hydrocarbon standards in use, and never has it met the carbon monoxide standards. In fact, even with our newest cars, the hydrocarbon and carbon monoxide coming from cars on the road is approximately double that allowed by the standards, while NOx emissions just barely meet the weak emissions standards presently required. Attachment E.
The chart also shows the importance of getting the industry to use new technology by careful choice of standards. In 1968 when emission standards were first introduced, there was no NOx standard. The manufacturers took advantage of that loophole and chose a technology that caused NOx emissions to increase by over 40 percent.
Also, actual emissions of hydrocarbon and carbon monoxide changed very little indeed in the 6 years from 1969 through 1974 despite the fact that the standards were tightened twice and required about a 50 percent reduction in emission levels. Then, in 1975, there was a significant decrease in these emissions, although not as great a decrease as required. Why?
The answer is that it was not until 1975 that a new level of technology was introduced. Only recently, when nitrogen oxide control has been required, have these emissions dropped even as low as their pre-1969 levels.
The committee believes that this bill sets standards that will require a new level of technology. Hopefully, this will result in a significant reduction in emissions from cars on the road — not just in certification.
The latest evidence has heightened awareness of these problems. New evidence has been received since the committee concluded its deliberations regarding the automobile provisions. In a memorandum dated February 25, 1976, the Environmental Protection Agency reported on recent tests conducted in two cities in which "about half of the 1975 model year cars are significantly exceeding CO standards." The memorandum goes on to state that a major reason for this failure may be changes made in idle mixture after the car has been purchased in order to overcome customer complaints about driveability.
According to EPA, this problem results because new cars have been built with a lean fuel mixture in order to receive high fuel economy ratings and low emissions and without regard to driveability. This is apparently satisfactory for pre-production prototypes which are hand built and only operated in certification tests by professional drivers. And the industry knows that if the consumer develops problems starting a car in cold weather, the carburetor can be adjusted with no responsibility accruing to the manufacturer even though both fuel economy and emission reduction benefits are compromised.
The conclusion from this evidence is that the industry had managed to make a car that performs well at the temperature used for the emissions testing procedures — roughly 72 degrees — but also has produced a car which the consumer can be expected to alter.
It is evident that EPA must modify pre-production certification requirements to require prototype testing for driveability and to change procedures to require a broader range of tests including conditions which are found in the real world. At a minimum, driveability tests should be conducted under a wide range of temperature conditions.
EPA also has the opportunity in its certification and its maintenance instruction review programs to take two steps which will help solve the in-use emission problem. The first is to minimize, to the extent feasible, the need for periodic maintenance of cars. The second is to minimize opportunities for mal-maintenance by eliminating adjustments that are commonly set improperly by mechanics and that significantly affect emissions. It is very important that EPA exercise its authority to stimulate these steps by the industry.
We must close the gap between demonstration vehicles and the actual cars on the road. We need an in-use test. We need to cause the manufacturer to be responsible, financially, for that vehicle which is in the hands of the consumer.
The 1970 act required a production line test and an in-use test. These tests are essential if consumers are to get that for which they pay. The law requires every vehicle produced to meet the standards set forth in the law or regulation for 5 years and 50,000 miles.
So long as the operator performs appropriately required maintenance, the manufacturer is legally responsible to pay for any costs associated with failure of that car to meet the standards.
PRODUCTION LINE TEST
Without a production line test, we will never know if cars actually meet the standards in the first instance — which they must, since without an in-use test, there will be no capability to monitor performance of vehicles on the road. And it is the combination of these tests which will create the necessary financial incentive for the manufacturer to begin to produce a clean car which can be expected to stay clean for its useful life.
The committee bill amends Section 206 to require that a production line test be implemented, within 6 months of enactment. Such a test is intended to provide assurance that all cars actually meet the emission standards when they are produced. This it not to be confused with the currently proposed production line test which uses statistical sampling techniques which will not assure that all cars meet the standards, even when new. The Administrator is expected to expand this audit procedure with an actual per vehicle test by the 1979 model year at the latest.
The existence of a per vehicle production line test will not guarantee that each new car will continue to meet standards for the required useful life of 50,000 miles. Present law provides a defects warranty and performance warranty for that purpose. The manufacturer warrants that each new vehicle will meet the emission standards for its useful life of 5 years of 50,000 miles.
The committee had considerable discussion of the automobile emission warranty provisions of the Clean Air Act. The committee report contains an extensive discussion of this issue. One of the purposes of the warranty is to assure that manufacturers make cars that control emissions when actually in the hands of consumers.
The Griffin-Riegle would make that test meaningless.
FUEL ADDITIVES
In 1973, when the auto companies announced their intention to use catalytic technology to meet the 1975 emission standards, they also stated that the catalysts could not tolerate the lead which was then in almost all gasoline. EPA subsequently issued regulations to provide for the availability of some unleaded fuel for 1975 cars.
It was clear then, as it is now, that catalyst technology would be used in the near term at least, that the number of catalyst cars on the road would increase steadily, and that the unique characteristics of the catalyst must be kept in mind by gasoline suppliers.
In February 1977, Ford Motor Co. testified to the committee that a gasoline additive, MMT, appeared to be damaging their catalysts, although MMT had long been recognized as an effective antiknock agent for gasoline. However, its use in the past has been limited, because of low availability, high cost, and possible spark plug fouling.
But oil companies have recently started adding MMT to unleaded gasoline to raise its octane rating. This was done without regard to MMT's effect on the over 25 million catalysts in cars on the road.
I consider this a total breach of good faith by the oil companies, and an outrageous act against the American consumer.
The committee took action to remove the potential hazard to 25 million automobiles by prohibiting the introduction of any new fuel additive after March 31, 1977, and requiring the removal of all additives introduced into unleaded fuel since 1975 when catalysts were first introduced. This ban can be waived by the Administrator if the proponent of the additive establishes that the additive will not impair the emission performance of vehicles produced in 1975 or afterward.
This action was absolutely essential. Ford Motor Co. recently testified at hearings on the 1979 California waiver on this issue. They said that the addition of MMT to fuel will cause a significant increase in hydrocarbon emissions, which would preclude Ford from certifying 1978 cars in California, or 1979 California cars if a waiver is granted.
Ford has stated with regard to the 1979 California waiver that EPA must deny it, or condition it upon the removal of MMT from fuel, to permit the 0.41 hydrocarbon standard to be met. I include the entire text of Ford's testimony at the end of my statement.
I think that this one example illustrates the alarming degrees to which MMT, and potentially hundreds of other additives, threaten our entire air pollution control program. Tests by Ford indicate that a three-way catalyst test fleet using gasoline with MMT had hydrocarbon emissions of double the 0.41 standard in less than 20,000 miles.
Unfortunately, this same result may have also occurred in catalyst cars on the road. We have no real way of knowing. However, there is no doubt that the irresponsible actions of the oil industry have set back our efforts to clean up the automobile. We cannot reverse that damage, but we can prevent further damage through adoption of the committee provision.
VIII. STRATOSPHERIC OZONE PROTECTION
The stratospheric ozone layer 10 to 30 miles above the Earth protects life on Earth from the ultraviolet radiation of the Sun. There is scientific concern that halo-carbon compounds and other substances introduced into the environment threaten to reduce the concentration of ozone in the stratosphere. Such a reduction in stratospheric ozone is likely to cause increased rates of disease in humans, including increased rates of skin cancer, reduce crop production, and otherwise damage the natural environment. Therefore, the committee bill requires studies by EPA and other appropriate research agencies to provide a better understanding of the effects of human activities on the ozone layer and the effects of depletion of that layer on human health and welfare.
The ozone provision depends mainly upon existing law for authority to regulate substances, practices, processes, or activities which may affect the ozone in the stratosphere to the extent necessary to protect human health and welfare.
The following regulatory initiatives have taken place recently under existing law: The Food and Drug Administration, which has authority to regulate food, drugs, and cosmetics, including propellants in their packaging, promulgated on April 29, 1977, regulations requiring a warning label on aerosol containers that contain chlorofluorocarbons. On May 13, 1977, the Food and Drug Administration published proposed rules for the phase out of chlorofluorocarbons propellants in nonessential uses, with the phase out to be completed in a time frame between October 15, 1978, and April 15, 1979.
Similar proposed regulations covering pesticides and industrial products were announced on the same date by EPA under the Toxic Substances Control Act. EPA also has authority to regulate pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act. Also on the same date, the Consumer Products Safety Commission proposed similar regulations on household cleaners and air fresheners under the Consumer Product Safety Act. The proposed action would eliminate about 60 percent of all chlorofluorocarbon emissions in this country. The remaining 40 percent of chlorofluorocarbon emissions come from non-propellant uses such as in air conditioners and refrigerators. FDA and EPA plan to propose regulations dealing appropriately with such uses next year. Exempted from the proposed ban will be essential aerosol products in which the use of chlorofluorocarbon propellants is necessary. This action was based upon the concern first expressed officially in 1975 by the Interagency Committee on Inadvertent Modification of the Stratosphere, and affirmed by the National Academy of Sciences report in September 1976.
The intention of the committee in this amendment was to provide an adequate research base for identification and assessment of present and future problems relating to stratospheric ozone layer. In addition, the committee desired not to interfere with the regulatory initiatives just mentioned. The committee did include a brief amendment to the Toxic Substances Control Act, in keeping with the gap-filling nature of that act, clarifying the fact that halo-carbons and other propellants are chemical substances subject to regulation under that act, to the extent that they are not regulated under the Federal Food, Drug, and Cosmetic Act or the Federal Insecticide, Fungicide, and Rodenticide Act.
The intention of that provision is to insure that there is authority in the law to protect the public health and welfare by regulating any substance, practice, process, or activity which may affect the ozone in the stratosphere. It is not intended to supersede or preempt authority that EPA or other agencies may have under existing law to take regulatory action with respect to the same or similar hazards presented by products or activities subject to their jurisdiction.
BUDGET IMPLICATION
Let me mention at this time that enactment of S. 252 is unlikely to lead to a breaching of the targets of the budget resolution for fiscal year 1978. Funding for the programs in S. 252 is classified in function 300: Natural resources, environment, and energy. In this function, the first budget resolution set targets of $20.7 billion in budget authority and $20 billion in outlays. While the funding of programs in this function is at the moment unclear because of uncertainty over the President's energy plan, funding for the environmental programs in function 300, including clean air, is likely to be consistent both with the assumptions of the budget resolution and with the amounts allocated under section 302(b) of the budget act to the appropriations subcommittee with jurisdiction over the environmental protection agency.
CONCLUSION
The Congress asserted in 1967 a Federal interest in protecting the public's health from the adverse impact of air pollution and a national policy to protect air quality in clean air areas. Congress recognized that a national regulatory framework with basic minimum standards and an aggressive Federal agency would be necessary.
We must not disband that effort.
I support much of this bill. There are improvements. There are causes of concern. There are provisions which, if enlarged in later actions, will lead to delay, reductions of efforts, and the inevitable conclusion that environmental goals and public health protection will not be accomplished. That possibility we must not forget.
Mr. President, I ask unanimous consent to have printed in the RECORD certain tables.
There being no objection, the tables were ordered to be printed in the RECORD, as follows:
[Tables omitted]
FORD MOTOR CO. POSITION ON MMT GASOLINE ADDITIVE
Mr. MUSKIE. Methylcyclopentadienyl manganese tricarbonyl — MMT has long been recognized as a very effective antiknock agent for gasoline. However, its use in the past has been limited because of low availability, high cost, and the indication of possible problems, such as spark plug fouling.
With the growing required use of unleaded fuel for practically all emission control systems on cars since 1975 models, the use of MMT has become more attractive. At the maximum dosage of 0.125 grams manganese per gallon recommended by Ethyl Corp., it could provide an octane gain on the order of two numbers — that 89 octane to 91 octane gasoline. According to Ethyl Corp., this gain would result in a 1 percent crude oil saving if MMT were used nationally at their recommended level. After several years of litigation, EPA is now mandating a phase-down of the lead content in gasoline used by pre-1975 cars and most trucks — of whatever vintage. The use of MMT in conjunction with the EPA regulation calling for lead phase down beginning in 1976 and going to 0.5 grams-per-gallon in 1979 is also expected to aid in the production of sufficient leadfree gasoline to meet demand during the next few years when a shortage is possible.
Current use is only about an average of 0.01 grams manganese per gallon because most of the major oil companies today are not using this additive; however, some refiners are using as much as 0.125 grams per gallon.
Based on the projected increased use of MMT by oil companies by 1979, EPA has established a requirement that 1979 certification fuel include 0.125 grams per gallon of manganese.
Because the use of MMT is increasing and because there are many different engines and emission control systems to evaluate, it is not possible to define accurately all of the adverse effects of MMT or to predict the degree to which these effects can be eliminated by other additives or by changes in the engine or emission controls. At this time, however, some very important conclusions can be made with respect to MMT use with the 1979-1980 emission control systems:
First, the addition of MMT at the 0.125 grams of manganese per gallon level will cause a significant increase in hydrocarbon — HC — emissions on many engine deposits of the manganese oxides. It can also foul spark, plugs and can seriously increase HC emissions. In fact, as shown below, a Ford three-way catalyst test fleet had tailpipe HC increases that doubled the 0.41 HC standard in less than 20,000 miles.
(Note: Chart not reproducible in RECORD.)
At this time, we do not know of scavengers or other design changes that could be made to eliminate this problem. We have no reason to believe solutions could be discovered in time for the 1979 or 1980 model year.
The effects of HC emissions increases that have been observed to date would preclude Ford from certifying vehicles at the 0.41 grams per mile HC standard for 50,000 miles as recommended by EPA for 1979 models nationwide and currently in force in California for 1977 and1978 models.
This inability to certify stems from the very low probability that certification vehicles could be run for 50,000 miles without experiencing a prohibitively high deterioration in control effectiveness for hydrocarbons.
Ford believes that there have been sufficient data generated to date that warrant elimination of MMT from leadfree gasoline until offsetting additives or new technology has been developed. Ford's recommendations are, therefore, as follows:
If an HC standard 0.41 gpm is required for 1979 or 1980, there has been sufficient data generated that shows that MMT cannot be required in the certification fuel as specified by the existing EPA advisory circular on this subject. EPA should pursue the possibility of voluntary action by oil companies or by Ethyl Corp. to eliminate MMT to the degree necessary to permit its exclusion from certification fuel. Further, consideration should be given to revisions in the EPA lead phase down program in order that elimination of MMT can be effected without a serious loss in gasoline production.
The EPA waiver to California for 1979 standards of 0.41 gpm HC must be denied or conditioned upon the elimination of the requirement to use MMT in 1979 certification fuel.
EPA should initiate proceedings under section 211 of the Clean Air Act to determine whether or not use of MMT should be prohibited or restricted.
If EPA determines that it does not have sufficient authority to take timely action, the fuel additive provisions similar to Senate bill 252 should be enacted by Congress.
Mr. MUSKIE. Mr. President, we will, of course, in the course of the debate get into these matters and I will have occasion to refer to those sections of this opening statement. In the absence of most of those who will offer amendments, a discussion of that kind at this point would seem to be a waste of the Senate's time and a waste of the committee's time. We will get into those in due course.
Mr. President, I ask unanimous consent that the committee amendments be agreed to en bloc and considered as original text for the purpose of amendment.
The PRESIDING OFFICER (Mr. SPARKMAN), Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, at this point, I am happy to yield to my distinguished friend from Vermont, the ranking Republican member of the committee and a staunch supporter of the objectives of the committee bill.