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ing or cross-examination is meant to imply criticism of the courts in their past reviews of administrative action under the Act. Those reviews have in general been thorough and searching. Nor is the purpose of this provision to shift the traditional burden of proof in judicial review of administrative action. The traditional presumption of validity would remain in effect and the petitioner would, of course, bear the burden of showing that the rule is invalid. Thus, the purpose of the Committee's provision in this regard is to endorse the court's practice of engaging in searching review without substituting their judgment for that of the Administrator and to assure that no retreat to a less search approach takes place.

The Committee recognizes that the factual support needed for a rule may vary greatly according to the subject being addressed, and that rules on some subjects, such as procedures, may not require any factual. basis at all. There is no intention to increase the amount of "factual" support now required to support "policy judgments where no factual certainties exist or where facts alone do not provide the answer", Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d. 467, 476 (D.C. Cir. 1974). Nor is there any intent to diminish the Administrator's authority to adopt precautionary regulations based on a showing of risk, which has been confirmed by the amendments to various sections of the Clean Air Act set forth in section 102 of this bill.

Section 307 (d) (7) (B) would specify the circumstances in which a reviewing court may consider data and arguments that were not presented to the agency during the rulemaking. Even in such cases, however, the Agency must first be given an opportunity to pass on the significance of the materials and determine whether supplementary proceeding are called for or not. Thus, the Committee bill confirms the court's decision in Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975).

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On behalf of A. Robert Stevenson, who represented the National Retail Merchants Association at hearings held by the Subcommittee on Environmental Pollution on February 11, 1977, I am herewith submitting NRMA's responses to questions submitted to us by the Subcommittee concerning our position on amendments to the Clean Air Act. The retail industry has a vital interest in the proposed amendments, and we appreciated the opportunity to appear before the Subcommittee and to respond to these questions.

If you or your staff need further information about NRMA or our position on this issue, please contact Bruce Turnbull, Legislative Counsel to NRMA, in our Washington office at 223-8250. Thank you for your time and consideration.

Sincerely,

Verrick French

Verrick 0. French

Vice President

Governmental Affairs

VOF: BHT: pch

GENERAL QUESTIONS FOR ALL INDIRECT SOURCE PANEL

1. Oxidant levels are very high in many areas of the country. These levels exceed health standards in many communities. That requires that new sources proposed in such areas that emit directly the pollutants which form oxidant must be examined carefully before approval is given for construction, and it also means that approval may often need to be denied. These industries have asked for a relaxation on the requirements affecting them.

Likewise, the statements you have made this morning ask for a relaxation of efforts on your part. If requirements were relaxed for stationary sources that make direct emissions, that would seem to increase the necessity to reduce the travel of mobile sources and the pollution caused by those sources. And that leads to the necessity of reconstruction review of indirect sources to assure that they are not causing increases, of the travel in the area.

In light of these comments what is your reaction to the proposals to relax requirements on those sources that directly emit hydrocarbons and nitrogen oxide that form smog? Should we relax our efforts there and try to pick up the slack with you?

Should we simply let each group that ask for special treatment slip out from under the requirements of rapid clean up?

If we do that, wouldn't it be more straight forward to simply repeal the health standards and make no pretense at attaining those standards?

2. For approximately two years now we have constantly heard from your organizations that when we relax automobile emission standards, you are asked to pick up the slack. While we appreciate your support for strict standards on auto emissions, it does not in fact appear to be the case that you have actually been asked to or actually have in fact picked up any slack at all. The regulations have been suspended and have never been implemented regarding indirect source review.

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Can you document any way in which the requirements proposed for reviewing indirect sources have in fact become more stringent as the automobile has been given extensions? Have the review procedures become more demanding? Have new limitations been written into the conditions an indirect source must meet before it can gain approval?

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Because of the extent of the oxidant problem, we know now
that a number of metropolitan areas will not achieve ambient standards
even when the automobile finally meets the original statutory standards.

Is there any possible reason why we should not begin to
egulate indirect sources of pollution and direct sources of pollution,
both stationary and mobile, so that the problem does not continue
to get worse?

(Prior to conSTRUCTION)

-- Shouldn't we now begin immediately to review indirect sources to assure ourselves that they will not make a contribution to worsening u already deteriorated situation?

4. The automobile has been cleaned up to a level of 83% reduction in hydrocarbon emissions; the actual record of these cars in the real world is closer to 60%.

Nevertheless, this is an improvement, though we certainly are

not ready to stop at present emission standards.

as your industry made a comparable effort to the reduction of air pollution from mobile sources? Is there any indication as to whether You have shouldered an equal portion of the load here?

- Have 60% of your facilities been reviewed to even see if there
is air quality impact? Or perhaps in a more direct analogy, have the
vehicle miles traveled by individuals to reach your facilities been reduced-
by 60% or even 201?

5. We all recognize that there is great wisdom in encouraging
growth in metropolitan areas to occur where there is easy access
to mass transit facilities. This in turn benefits the viability of
the operation of that mass transit system and the potential for expansion.
It also reduces energy consumption and provides air quality benefits
by reducing pollution.

- How do we go about assuring that this growth pattern
ctually occurs? How can the facilities you represent make sure that
their location does not worsen the situation unless there is some kind of
review procedure to see that the best decisions are made?

- If you do not like the Cloan Air Act mechanism for providing this review, how do you propose that metropolitan areas solve this problem of urban sprawl and low density that makes the viability of mass transit very difficult?

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ou have argued that slow progress in auto emission controls I require you to pick up the slack. Lets reverse this for a minute nd see if it makes any sense.

-- Couldn't the auto companies argue that they have been forced to "pick up the slack" caused by the kind of sprawl and excessive driving habits created by unsupervised development, easy parking at subsidized rates, and the like?

-- Could they not argue that they have been asked to meet an impossible clean up target simply because development interests such as those you represent have resisted community planning that might have led to the design of transportation systems that would have reduced pollution and saved energy?

Do you have any objections to reviewing highways and airports as indirect sources? Your organizations are composed of people who own facilities, not highways. In addition, highways and airports are clearly government activities, while your activities occur essentially in the private sector.

Is this a meaningful distinction and would you be willing to Support a more rigorous regulation of these kinds of indirect sources at an earlier date than you have proposed for private facilities in your proposal and your endorsement of the louse bill?

You are currently arguing that you should not be regulated until the automobile manufacturers comply with final standards. We know that cars on the road do worse than the actual standards allow.

- If the auto companies do meet the final standards in the next few years, would your argument then shift to resisting regulation until all cars on the road, in actual use, meet these standards? Will you continue to resist regulation until the nationwide inspection and maintenance program is instituted to assure the actual real world performance of automobiles is adequate?

-- The oxidant problem is so extensive and in many areas readings are so far above the standards that it is important for us to know at what point you and your organizations will willingly share some of the responsibility of the burden for reducing air pollution problems in the

nation.

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