There is a fundamental difference in philosophy between the nationally-based approach of the Administration bill and the regionally-based approach of the existing legislation and of S. 3546. The first report of the Secretary of Health, Education and Welfare on the Air Quality Act of 1967, made to this Congress in June 1968, describes the present structure of air quality control regions, and argues that "Because air pollution is essentially a regional problem, the most effective way to attack it is on a regional basis."

I take issue with that approach. According to the Secretary's report, air quality control regions are to be set up not only upon the basis of geographic meteorological variances, but also in light of the location and quantity of pollution emissions, social and governmental factors, projected patterns of urban growth, and various political considerations. It is my belief that the latter factors should not be determinative in measuring the danger to human health from pollutants in .the air.

No matter what the social and governmental factors, human beings in different parts of the country will be equally endangered by equal concentrations of any given pollutant under similar atmospheric conditions. That is why I believe that the Federal government ought to set maximum levels for each pollutant and enforce those levels nationally.

Regional standards would impose unequal production costs upon competitive firms in the same industry who happen, though they discharge exactly the same pollutants with exactly the same atmospheric effects, to be on different sides of a regional boundary. This is inequitable.

To account for regional atmospheric variations, it is not necessary to establish defined atmospheric areas within which different standards will be applied. Rather, the Department of Health, Education, and Welfare should, as part of the process of establishing national standards of maximal pollutant levels, calculate a discounting scale which will correct for atmospheric divergences.

The advantage of a discounting procedure over the present regional structure lies in the elimination of unequal treatment of competitive industries presently on different sides of a regional boundary. Moreover, chronological changes in atmospheric conditions may be far more flexibly corrected by the application of a changed discount ratio than by the changing of regional boundaries.

As I support the national air quality standards, so also do I support the national emission standards suggested by Senator Muskie's Air Quality Improvement Act, S. 3229. As enforcement of national ambient air quality standards would be far easier and less delayed than enforcement of state and regionallybased standards, so also would enforcement of national emission standards be less cumbersome than that of any state-based plan. Consequently, I will introduce an amendment to the Administration's bill which will have the effect of imposing national emission standards. It will do so by mandating that each State or interstate agency shall include in its air quality implementation plan emission standards prescribed by the Secretary of Health, Education and Welfare. The standards would be applicable to emissions from all types of vehicles, vessels, aircraft, and engines.

II. THE PROTAGONISTS OF ENFORCEMENT

Enforcement of regulatory standards has too often been undermined because enforcement responsibility has been given to the wrong agency.

Federal noise abatement legislation enacted in 1968, for example, empowers the Federal Aviation Agency to set noise and sonic boom requirements as part of its authority to certify aircraft. The FAA is essentially an aviation development agency, with close ties to the aircraft industry, which is not likely to impose truly effective noise or air pollutant emission standards.

I will, therefore, introduce legislation which will transfer from the FAA to the Department of Health, Education and Welfare the authority to set noise and air pollutant emission standards for aircraft.

Similarly, placement of responsibility upon the Atomic Energy Commission for enforcement of radiation safety and particulate and gaseous emission standards appears to have been an error. The AEC, too, is an agency which shares the developmental goals of its associated industry, and those goals are in conflict with rigorous enforcement of emission standards.

I will, therefore, introduce legislation, similar to that proposed in the House by Congressmen Bingham and Dingell, which will transfer from the AEC to the Department of Health, Education and Welfare the responsibility for enforcement of safety and pollution standards in nuclear development.

III. THE PROCESS OF ENFORCEMENT

It is crucial that we focus not only upon the rigor of standards, not only upon the agency responsible for enforcement, but also upon maximizing the efficacy of the process of enforcement itself.

That is why I support the provisions of Mr. Muskie's National Air Quality Standards Act of 1970 that public hearings, at which any interested parties— including environmental protection groups-may speak, should become part of the enforcement process of emission standards. So too should public hearings be part of the standard-setting process of the Department of Health, Education and Welfare. I will introduce amendments to that effect to the Administration bill.

In order that speedy enforcement may be achieved, it is imperative that the Air Pollution Control Administration have the power to issue cease and desist orders to emission standards violators, as provided in Senator Muskie's legislation. We must reduce the built-in delays in present enforcement and standard-setting structures-which provide for endless conferences, hearings, and other enforcement delays of up to 5 years. Federal standards and cease and desist orders should, presuming public hearings and fact-finding before their issuance, become effective immediately upon their promulgation. Court appeals to stay the promulgation of standards or the enforcement of cease-and-desist orders should be allowed. The standards or orders should, however, remain in effect-as Senator Muskie's proposal provides-unless and until the court issues a stay order.

Moreover, interested private parties should be given, by legislation, the authority to go to court in order to seek enforcement of pollution standards.

The customary argument against private suits is that the lack of decisional standards will lead to a lack of uniformity in enforcement as courts in different jurisdictions adopt different tests of reasonability.

That argument is not applicable here, since the legislation which I support would establish national air quality standards and national emission standards, as well as providing for explicit state implementation plans. Courts could, thus, measure pollution levels in any particular area against fixed statistical standards publicized by the Department of Health, Education and Welfare. They could measure municipal and state efforts to implement standards against the explicit implementation plans which each state will have proposed and the Department will have approved.

Given the existence of exlicit standards and implementation plans upon the basis of which courts will be able to make determinations, it would be beneficial to allow private interested parties to (1) intervene as parties plaintiff in Federal and other governmental suits for equitable relief, such as injunction, to enforce emission standards, (2) file amicus curiae briefs in such suits and in governmental damage suits against polluters, and (3) have standing to seek equitable relief against any state, municipal, or interstate body which fails to act in accordance with its own implementation plan which had been approved by the Department of Health, Education and Welfare.

Federal legislation should provide that the full litigation costs-including particularly the costs of providing expert scientific testimony-of such private parties will, upon their winning any suit, be assumed by the unsuccessful defendants. That provision would remove what is probably the largest financial impediment to the litigative effectiveness of private conservation groups.

CONCLUSION

Studies and research, as in the field of solid waste disposal, must continue, but the time for studies and research alone is past. It is the responsibility of Congress to pass, now, effective legislation which will provide for the establishment of rigorous national standards and effective enforcement procedures.

Senator MUSKIE. The views of the Federal Bar Association on S. 3229, S. 3466, and S. 3546, are included in the materials I have received from Paul E. Treusch, who is presented of that group. It will be included in the record at this point.

Hon. EDMUND S. MUSKIE,

THE FEDERAL BAR ASSOCIATION,
Washington, D.C., March 25, 1970.

Chairman, Subcommittee on Air and Water Pollution, Public Works Committee, U.S. Senate, Washington, D.C.

MY DEAR SENATOR MUSKIE: Thank you for inviting me to present the views of the Federal Bar Association on the three air pollution control measures now pending before your Subcommittee, S. 3229, S. 3466 and S. 3546.

The Federal Bar Association is composed of almost 14,000 attorneys, all of whom either now serve or at one time served the Federal Government in a civilian or military capacity. We now have 96 chapters located in each of the fifty states and overseas, and have nearly 80 substantive committees, several of which have a deep and continuing interest in air pollution.

Examples of our continuing interest include such programs as a well-attended briefing conference on air and water pollution control on March 14 and 15, 1968, for which we were privileged to have you as our principal speaker. In addition, the effect of air pollution regulations on electric power and natural gas utilities was considered in two briefing conferences organized by the Association's Committee on Federal Utility and Power Law on February 17 and 18, 1970, as well as part of its conference on National Electric Power Policy on October 16, 1967. The Association's Council on Science and Technology is presently planning a briefing conference in the critical area of waste disposal management, to be held in Washington, D.C. this coming fall.

The Association's Council on Natural Resources and its component committees are also planning educational programs for lawyers in the area of protection of the environment.

The relatively short time available for analyzing the three Bills now before your Subcommittee have afforded us an opportunity only of consulting with a few of our members in the Councils and Committees which have an interest in this important legislation. Accordingly, if I were to testify on March 26, 1970, as you propose, it would not be possible to present to you the views of our Association as a whole or any of our Councils or Committees.

The proposed legislation, along with the suggested amendments, have been referred to each Council and Committee involved, with instructions to give it their prompt consideration, and to poll their membership on the more important features of this proposed legislation, preliminary to preparing proposed recommendations.

I have asked our Executive Director, Mr. J. Thomas Rouland, to assure that the handling of this matter will be given a top priority so that it will be possible to present any comments or recommendations of the Association or its component committees to your Subcommittee prior to any final action on this proposed legislation.

Your interest in asking the views of the Federal Bar Association is greatly appreciated, and we hope we can be of continuing assistance in this important area, which is of vital concern to us all.

Sincerely yours,

PAUL E. TREUSCH, President.

(Subsequent to the hearing the following letter and statement were received from Mr. Treusch:)

Hon. EDMUND S. MUSKIE,

THE FEDERAL BAR ASSOCIATION,
Washington, D.C., April 28, 1970.

Chairman, Subcommittee on Air and Water Pollution, Committee on Public Works, U.S. Senate, Washington, D.C.

MY DEAR SENATOR MUSKIE: I am pleased to send you my statement, as President of the Federal Bar Association, on three Bills pending before your Subcommittee, S. 3229, S. 3466, S. 3546. In the time available, the Association has not been able to poll its total membership on the position presented. However, the statment does represent the position adopted by our Committee on Environmental Affairs and approved by the Executive Committee of the Association.

Thank you very much for the opportunity to present this statement and best wishes for the continuing success of your Subcommittee.

Sincerely yours,

PAUL E. TREUSCH, President.

STATEMENT BY PAUL E. TREUSCH, PRESIDENT OF THE FEDERAL BAR ASSOCIATION

I welcome this opportunity to present to the Subcommittee on Air and Water Pollution some consideration and comments on S. 3229, S. 3466, and S. 3546. The Federal Bar Association is composed of some 14,000 attorneys, all of whom either now serve or formerly served the Federal Government in a civilian or military capacity. Our membership includes public servants in the legislative, executive and judicial branches of our Federal Government. We have 96 chapters located throughout the fifty states and overseas.

The Association's Council on Science, Technology and the Law has had a continuing interest in air pollution. On March 14 and 15, 1968, the Council (then called the Council on Select Substantive Fields) sponsored a well attended briefing conference on air and water pollution control. One of the featured speakers was Senator Muskie. In addition, the effect of air pollution regulation on electric power and natural gas utilities was considered in two briefing conferences, organized by that Council's Committee on Federal Utility and Power Law on February 16 and 17, 1967, and February 17 and 18, 1970, and briefly during its National Electric Power Policy Conference on October 16, 1967. That Council is presently planning a briefing conference devoted to industrial environmental systems to be held in Washington, D.C., this coming fall.

The FBA Council on National Resources and Lands, recently reorganized to include a Committee on Environmental Affairs, is planniing a briefing conference on pollution of the environment, including air pollution, this coming December in Miami. Its plans include continuing education of members of the legal profession on problems of environmental quality, symposia on environmental problems, periodic speaking programs, and gathering of information on developments at the administrative, judicial and legislative levels of government, ranging from state, to national, and to the international arenas.

In your telegram of March 6, you asked me to discuss the three bills presently pending before you, with particular emphasis on their enforcement provisions. However, to constructively criticize the three bills, I had first to review the past experience of air pollution control by federal, state and local agencies. Of particular interest was a comparison of the actual enforcement of emission restrictions on polluters as between the National Air Pollution Control Administration and some of the state and local control agencies.

I think it fair to equate successful enforcement with the rapidity and the reach of the imposition of emission restrictions on uncooperating polluters. The Clean Air Act as amended, and as it would be further amended by the proposed legislation, places a great many unnecessary hurdles in the way of successful pollution control enforcement. I say hurdles, because they delay such enforcement, but some are so great that perhaps they may constitute a barrier, rather than just a delaying hurdle.

I refer particularly to the entire approach of the Air Quality Act of 1967, which starts the enforcement program by going through the following steps: (1) Establishment of "criteria" and "control technology documents." (2) Establishment of “air quality control regions."

(3) Monitoring of air quality.

(4) Establishment of "air quality standards" by the states.

(5) Development of an implementation plan.

(6) Enforcement of an implementation plan.

I am going to discuss, in a few minutes, the lengthy time it takes to go from (1) through step (4), but here I would like briefly to mention the great difficulty of going from step (4) to step (5).

PROOF OF FACT

One problem is that of proof-of-fact. The present law requires the enforcement agency to start with the monitoring and study of "ambient air quality" (Section 107 and 108 of Public Law 90-148). After "proof-of-fact" of poor ambient air quality, which is difficult, but feasible, it requires that the cause of specific concentrations of pollutants in the atmosphere be traced to one or more specific sources apparently as a prologue to the establishment of a plan to maintain a particular level of ambient air quality. Where emission sources are many, and meteorological phenomena are complex and undefined, whether such "proofof-fact" is feasible by any lawyer or engineer is a doubtful question which can only be answered after the expenditure of considerable sums and the passing of a good deal of time. And yet this presumption of feasibility is carried forward

in the proposed amendments, which do not change the statutory scheme based on this presumption.

I would like to note that some bills introduced in the House have adopted a direct emissions control approach, for example, H.R. 14867, H.R. 15070, and H.R. 15577, although I cannot endorse all the specific provisions of those bills.

PROCEDURE

The procedure of the present "Clean Air Act," Sections 107 and 108, which we summarize as steps (1) through (4) above, is an overelaborate ritual.

Before anything remotely resembling enforcement can commence, the present act requires the development of "criteria" and "control technology documentation" which takes quite a long time. You can simultaneously start creating air quality control regions during this period, but you cannot go any further. At present five criteria and control technology documentation publications have been issued. We urge that this process be accelerated to the extent possible, and that additional appropriations be made available to do so. However we do not believe that the remainder of the procedures should be held in abeyance pending issuance of these documents.

After both the criteria and the control technology documentation are developed, sent to, and received by the governors of the several states, and the air quality control regions have been created, the governor has 90 days in which to file a "letter of intent" (Section 108 (c) (1)). S. 3546 would reduce that period from 90 days to 30 days.

Then the state has still another 180 days to adopt, after public hearings, ambient air quality standards for the designated air quality control regions, and then still another 180 days to adopt a plan for the implementation, maintenance and enforcement of such air quality standards. Then it takes the Secretary of Health, Education and Welfare some time to determine whether or not to approve the state adopted standards.

Not considering time necessary to develop the criteria and control documentation, and time to establish air quality control regions, and time for the Secretary of Health, Education and Welfare to determine the adequacy of the state adopted standards, there has still been a total allowed time of over one year and three months to get this far.

Then if the standards are not acceptable, or are not even created, additional time starts to run as follows:

The Secretary has first to give notice, and call a conference and then prepare his own air quality standards. This could take a considerable period of time. After the Secretary publishes these regulations, the state has six months within which either to adopt its own standards or to petition for a public hearing. During this six months, the Secretary's regulations are not yet effective (Section 108 (c) (2)). Then in another 30 days the governor can petition the Secretary for a hearing.

I will not burden you with the great number of succeeding steps that must be taken before enforceable orders to restrict emissions can be issued. But in trying to trace through this maze of procedure, I begin to wonder whether the end will ever come.

We suggest that after criteria are published, the State be required within thirty days to give public notice and information of public hearings, to be held within another 45 days, for the purpose of establishing State ambient air quality standards. Within 180 days the Secretary should compare the State ambient air quality standards established to a minimum national standard to be established, and approve it if equal to or more stringent than the national standard. If the State ambient air quality standard falls below the national standard, the national standard should be substituted in its place.

INTERIM BURDEN

A third defect in the present Clean Air Act, as amended, and continued in the proposed amendments, is also related to the problem of proof-of-fact, and to the problem of timing. Under the present Act, the burden of proof of need for control for particular emissions is upon those who are the victims of emissions and they do not get a chance to try to prove their facts until sometime late in the game-after damage has occurred.