During the 94th Congress, ICSC supported comprehensive legislation to amend the Clean Air Act and we continue to support such a comprehensive approach. In fact, ICSC supported last year's Conference Committee bill and opposed the last minute efforts which successfully killed the legislation. Therefore, we believe that the indirect source review, administrative procedures and judicial review amendments that we have suggested should be part of legislation containing comprehensive amendments ot the Clean Air Act. Thank you for giving us the opportunity to present our views here today and to participate in this panel discussion. MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: Good morning. My name is Edward C. Maeder, and I appear today on behalf of the International Council of Shopping Centers (ICSC). I am an attorney with the law firm of Winston & Strawn, Washington Counsel for the ICSC. The ICSC is the trade association of the shopping center industry. Its members number over 5,500 and include owners and operators of shopping centers; retail tenants of shopping centers; and lending institutions and other business firms involved directly or indirectly in the development, ownership, and operation of shopping centers. ICSC welcomes the opportunity to appear before you today to discuss the proposed amendments to the Clean Air Act now before the Subcommittee (S. 251, S. 252 and S. 253), the land use and transportation controls which directly impact our members and the administrative and judicial review provisions of the Clean Air Act. The shopping center industry is committed to meeting the mandate of the Clean Air Act that a level of ambient air quality which protects the health of all Americans be attained and maintained throughout the United States. The industry realizes that automobile-created pollution is a problem and that it will be necessary to make some changes in our transportation and land use patterns in order to meet the mandate of the Clean Air Act. And the industry is fully prepared to assume its fail share of the burden involved in meeting these goals. The real estate development industry has been told, however, that it must shoulder an unfair portion of that burden. The principal mechanism provided by the Clean Air Act, as amended to 1970, for the attainment and maintenance of the -2 ambient standards with respect to carbon monoxide and photochemical oxidant is a set of emission standards for light-duty motor vehicles. Additionally, however, the Act provided in Section 110 (a)(2)(B) that, whenever and wherever a gap should exist between the reduction in aggregate emissions necessary to attain and maintain the standards and the reduction in aggregate emissions achievable through those emission standards, "land use and transportation controls" must be implemented to close the gap or to maintain the standard.1/ Thus, the Act provided for land use and transportation controls as secondary implementation measures, to be applied where necessary when the primary implementation measure of direct automobile emissions controls was insufficient. In other words, whenever and wherever a gap might exist between the reduction in aggregate emissions necessary to attain the standards and the reduction in aggregate emissions achievable through direct source controls, unspecified land use and transportation controls could be used to close the gap. Unfortunately, these gaps have grown in size and number as a consequence of extending the timetables for implementing the direct controls on auto emissions required by the Act. the deadlines for achieving the statutorily required reductions As 1/ Section 110 (a) (2) (B) of the 1970 Amendments provides that a state implementation plan shall be approved if, among other things: (B) it includes emission limitations, -3 on automobile emissions have been extended without concurrent extensions of the deadlines for meeting the ambient standards, a heavier and heavier burden has been placed on what were originally intended to have been secondary implementation tools. Perhaps all the extensions of automobile emissions control deadlines--both those that have been granted and those that have been requested--were, and are, necessary. In any event, the fact remains that as the Title II deadlines have been extended, conforming adjustments have not been made in the timetables for attaining the ambient standards. As presently written, the Act is inflexible in that respect, and land use and transportation controls become more draconian and more widely applied with each extension granted by the Environmental Protection Agency or enacted by the Congress. "Land Use and Transportation Controls" Under the Clean Air Act Congress did not define the phrase "land use and transportation controls" and established no priorities for the implementation of those controls. EPA has determined that this provision authorized regulation of so-called "complex" or "indirect sources" of pollution. EPA has defined "indirect source" to include "a facility, building, structure, or installation which attracts or may attract mobile source activity that results in emissions of a pollutant for which there is a national standard."2/ (emphasis added). EPA listed, as examples of such indirect sources, highways and roads, parking facilities, retail commercial and industrial facilities, recreation, amusement, sports, and entertainment facilities, airports, office and government buildings, apartment and condominium buildings, and education facilities.3/ 2/ 40 C. F.R. § 52.22(b)(1)(i), 39 Fed. Reg. 7276 (1974). 3/ Id. EPA has devised various strategies in the name of "transportation and land use controls" and those measures which will have a direct impact on real estate development are included indirect source regulations and parking in two regulations: management regulations. The INDIRECT SOURCE REGULATIONS, required in all areas, are designed to prevent the localized build-up of carbon monoxide ("hot-spots") which can result from traffic congestion and slow, stop-and-go driving patterns. The regulations would require that indirect sources be reviewed prior to construction to be certain that their design and location will not cause or contribute to violations of the carbon monoxide ambient standard in the immediate vicinity of the facility. The PARKING MANAGEMENT REGULATIONS, issued as portions of the transportation control plans for twenty-two metropolitan areas of the country, are designed to reduce region-wide levels of 4/ These various strategies can be divided into three general categories. The first category would include those measures such as vehicle retrofit programs, compulsory maintenance programs, gasoline rationing, and carpooling which directly limit emissions or directly reduce vehicle miles travelled in an effort to attain the primary ambient standards in certain air quality control regions. The second category would include those measures, such as the The third category would include those measures, such as the indirect source regulations, which are intended to prevent the deterioration of air quality below the ambient standards in the immediate vicinity of a proposed indirect source. |