? Not suitable for acceptable growing stock; based on 40 percent, 30 percent and 20 percent, respectively of sound poles, large poles, and sawtimber. Sound trees 20 inches and larger are considered mature.

Senator MUSKIE. Senator McClure?

Senator MCCLURE. I wonder if I might yield to Senator Domenici. He had further questions and he said he had to leave.

Senator DOMENICI. I want to assure Mr. Moss, you know the beautiful State I come from, and you know you have some of the finest members of your whole organization, especially in the Los Alamos Area, that I am very concerned about that great State keeping itself pure and clean while it developed. But I am concerned that in the process we won't get the same kind of deal we got from the oil people.

If you are aware, New Mexico is the fifth largest producer of oil and gas and yet there is not a single, solitary refinery of any type in that State. Its economics are almost bottom tier. We are fifth highest in the production and fifth from the bottom in average income for our people and in taxable base period person.

It does concern me that as we move into this new era that we be very careful.

I want to ask you a question about defining significant deterioration. It concerns me wherein this responsibility lies, who should be the ones who define. I wonder whether or not it would not be more expeditious for Congress to define it. We certainly could have eliminated it from the laws altogether, I think, and had just the health standard that we have and that would have been valid.

It would have been prudent, but it would have been valid, so somewhere in between that and the significance and zero, we could still define it, it would seem to me.

Would you address yourself to whether that is prudent, plausible, expeditious, just your general thoughts on your role because I am very willing to define it and stand up and be counted if it is a feasible approach.

Mr. Moss. First, Congress can obviously do whatever it wants to do in this matter. It is the court of last resort. If it chooses to define significant deterioration, so be it. Whatever Congress says, the administrative agencies, at least up until recently, are supposed to carry out. However, when you ask whether it would be expeditious, that is a matter which I would refer to the committee with people on it much more experienced in matters of legislation than I am."

I suspect that it would take quite some time and the most expeditious way of handling this might be to do it the way most of the other specific determinations were provided for in the Clean Air Act which is to let EPA set a standard, make the definition to implement the requirements

Senator DOMENICI. It seems to me, however, that when you are talking about that we could end up in court on every one because there is still no definition of what significant deterioration is. That is what I am concerned about.

Mr. Moss. We could end up in court. As a matter of fact, as I indicated in my testimony, we have gone back to the court not to ask them to define significant deterioration for EPA's benefit, but to say in language that EPA will understand that certain things they are proposing are clearly inconsistent with the court order. That will still leave EPA quite a bit of latitude in defining significant deterioration and we would be the first to admit that there is room for differences of opinion on exactly what the number should be. Whatever those numbers are, they should be consistent with the court order.

Senator DOMENICI. I want to just close by telling you about my little calendar here. We are going to consider today S. 1983 and it is called endangered species. One of my older children asked me what we were going to be doing. I told him we were talking today about air and pollution controls and how it affected us. They said, "Are we the endangered species?"

So I do think we are getting the message across.

There is very, very great concern of everyone, this air as it applies to us. A few years back no one would have thought that we were in any kind of danger in our air, but even our young people are very much aware of it.

I must leave, but I thank you for your testimony.
Mr. Moss. Thank you, Senator.

Senator DOMENICI. Thank you, Mr. Chairman.
Senator MUSKIE. Thank you Senator Domenici.
Senator McClure?

Senator MCCLURE. Thank you, Mr. Chairman.

The question that I would like to address is perhaps one of semantics, but I want to understand exactly what you are saying because if I view the background of these hearings, it is because we lack understanding and what was said by Congress and since by the executive, and by the courts as a third, that we are involved in a discussion today. The first part of your statement puzzles me a little. You indicate that the first action in regard to significant deterioration came from the executive.

In the first full paragraph on the page you say the idea that the Clean Air Act prohibits significant deterioration of existing air quality was not invented by the plaintiffs or in the district court. It came from the executive branch. Yet, as you go further into the statement, on the next page you indicate it came first from the Congress? Which did you intend to imply?

Mr. Moss. Perhaps I should have been more precise, Senator. What I meant here was that the first use of the phrase "significant deterioration" or preventing significant deterioration came from the executive branch. But Congress, back in 1967, in the Clean Air Act, or actually it was the Air Quality Act at that time, stated as the purpose of the act "to protect and enhance the quality of the Nation's air resources." That statement and the purpose of the act was retained when the

Part of our position in the court case was that you can't protect the quality of the Nation's air if you allow significant deterioration of that air quality to occur.

Senator MCCLURE. Then if I understand you, you say that at first the principle was established in the statute, not from the executive branch; is that correct?

Mr. Moss. That is correct.

Senator MCCLURE. That the executive branch invented the term or first used the term?

Mr. Moss. That is correct.

Senator MCCLURE. You point out that the 1970 Senate report likewise made clear that Congress deliberately intended to prohibit significant deterioration of clean air areas. Is that the first, or the clearest, statement of congressional intention with regard to this?

Mr. Moss. I am not sure that it is the very first, but it is one of the earlier statements by Congress, specifically addressed to that point. We could perhaps look back in the record and see if there was earlier reference to that.

Senator MUSKIE. Would the Senator yield just a minute for an observation?

Senator MCCLURE. If it doesn't come out of my time.

Senator MUSKIE. This could in a sense be looked upon as a definition of that language.

Mr. Moss. I think it should be considered in arriving at a definition, but an operative definition I think should have some numbers in it. It should be specific and concrete so that industry has a clear idea of what they should work with.

Senator MCCLURE. The reason I go into this background is because I think there is a difference, if I understand it, between what various people understand that phrase to mean.

In that Senate report, it goes on—

In areas where current air pollution levels are already equal to or better than the air quality goals the Secretary should not approve any implementation plans which does not provide to the maximum extent practicable for the continued maintenance of such ambient air quality.

I understand you to say that that is a good definition of significant deterioration?

Mr. Moss. By itself, no. I don't think it is. But it has to be viewed in the context of the entire statement which goes on to talk about how "given the various alternative means to preventing and controlling air pollution including the best available technology, industrial processes, and operating practices."

Senator MCCLURE. Then I understand you to say that this is not an arbitrary, inflexible, rigid standard against which everything is measured. It has some variables involved?

Mr. Moss. The concept of no significant deterioration involves a matter of judgment and application of good sense, I think.

Senator MCCLURE. I certainly agree with you. I think there are some people who would deny that. I underscored in that statement "to the maximum extent practicable."

You also mentioned that there were some variables with respect to the status of the art and the alternatives that were available and the technology that might be applicable. To me that is different than the

rigid stand that has been taken by some which says that this statute and the interpretation of the court says nondegradation. That is an aim, not inflexible, rigid standard, as I understand your statement.

Mr. Moss. It is quite correct that we do not intend there to be a policy of nondeterioration.

Senator MCCLURE. You changed the words on me. I am not sure whether you meant to or whether there was meaning in it. I used the term "nondegradation." You used the term "nondeterioration."

Mr. Moss. I wasn't drawing any distinction between the two. It is not a policy of nondegradation. It is a policy of no significant deterioration.

Senator MCCLURE. Senator Muskie in his opening statement this morning referred to the national policy of nondegradation I understand you now to say that you don't agree with that?

Mr. Moss. Those words "nondegradation" do not appear in the court order. The court case was fought on and decided on the principle of "no significant deterioration." People like to use shorthand for these things. Talking about preventing significant deterioration of air quality is a little bit cumbersome.

As I was reading my statement I was thinking that it was a little bit cumbersome to repeat that phrase so many times. I would like to have been able to use nondegradation because it is shorter but I resisted the temptation because it might have been confusing and it might have raised a misleading impression as you indicate from your question.

Senator MCCLURE. A good many people have taken the court decision to mean that there can't be any minus change in air quality standards. I don't think the court decision says that. Apparently you don't read it as saying that either?

Mr. Moss. No; not at all.

Senator MCCLURE. In your statement you says, "increases in air pollution below the secondary standards are a danger to public health." We have had statements to us by, I think, the National Academy of Science that secondary standards themselves are not necessary to protect the public health.

Have you any scientific background for the statement that "increases in air pollution below the secondary standards are a danger to public health"?

Mr. Moss. Yes, I include that in my statement with references to the source materials. I covered quite a few instances of that.

Senator MCCLURE. Do you believe that there is a basis for any kind of a court challenge to the secondary standards on the basis of a threat to public health?

Mr. Moss. First of all, the secondary standards are not intended to protect public health. They are intended to protect public welfare. Senator MCCLURE. Aren't primary standards intended to protect public health?

Mr. Moss. They are intended to. Secondary standards are supposed to be more stringent.

Senator MCCLURE. Secondary standards are more stringent?

Mr. Moss. Yes. I gather your question relates as to whether there is a basis for the court test of the primary standards because they may not

Senator MCCLURE. You have indicated that even beyond the secondary standards there is a threat to public health?

Mr. Moss. That is quite correct.

Senator MCCLURE. If the primary standards are intended to protect the public health, could you not challenge both the secondary standards and other standards that go beyond the primary standards because it fails to meet the mandate of the law?

Mr. Moss. One would think so. But the Clean Air Act has certain time limits within which court challenges can be joined. If those times expire, then the standard that has been promulgated cannot be challenged, at least under that section of the act. I think in the case of the setting of the primary and secondary standards, it was something like 90 days. I believe the only challenge came from the Anaconda Copper Corp. that thought that the secondary standards were much too stringent.

Environmentalists have joined in that suit to back up EPA, and perhaps now that EPA has called for the rolling back of the secondary standards on sulfur oxides, the national average, so that they will no longer exist, the whole situation may call for a complete review involving some litigation of just what those standards should be.

Senator MCCLURE. Mr. Chairman, I have some more questions, but I will yield at this time.

Senator MUSKIE. Senator Clark, you have been very patient.

Senator CLARK. Mr. Moss, I thought that your statement was very interesting and very informative and very clearly presented.

I have only three questions, all of which I think have been touched on, but I would like to explore a little further.

The first one I will just read to you. It is one you will remember very clearly.

I have no doubt that EPA can promulgate a reasonable definition for significant deterioration which would clearly spell out the amount of deterioration which is permissible and provide adequate room for the growth and development of rural areas.

I assume you are going to reserve the right to disagree with those standards and so forth.

Prior to that definition, should it come, do you have any specific proposals or any specific ideas, criteria, as to how that phrase "significant deterioration" might be defined?

Mr. Moss. Yes, we do. We have communicated these to EPA, but they have not chosen to take our advice. To begin with, we think that there ought to be expert percentage increases or absolute increases in micrograms per cubic meter of each of the pollutants spelled out in the definition, such increases being defined as constituting significant deterioration. We suggest something like a 10-percent increase in the pollutant level from what was there before or something like 5 micrograms per cubic meter, whichever number is larger.

I say whichever number is larger because in a situation where the background concentration is very, very low, you might be able to increase it 1.000 percent or 2,000 percent without getting into a situation where there would be significant deterioration.

So in that case the magnitude of the 5 micrograms per cubic meter for most of the pollutants would apply.