TESTIMONY OF THE ADIRONDACK COUNCIL
BEFORE THE SENATE SUBCOMMITTEE ON CLEAN AIR, WETLANDS, PRIVATE PROPERTY AND NUCLEAR SAFETY
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
OCTOBER 14, 1999

Good Morning. My name is Bernard C. Melewski. I am counsel and legislative director of the Adirondack Council. I would like to thank the chairman, and the members of the committee for the opportunity to be here with you this morning and to provide testimony regarding the reauthorization of the Clean Air Act.

I would like to begin with a brief explanation of the Adirondack Park, the role of the Adirondack Council in New York, and why we are particularly interested in the topic of acid rain and in the Clean Air Act.

The Adirondack Park is the largest park of any kind in the contiguous United States. It is nearly three times the size of Yellowstone National Park and covers one fifth of the State of New York making it equal in size to the State of Vermont. The Adirondack Park is roughly six-million acres of public and private land containing the largest assemblage of Old Growth forest east of the Mississippi River. The Adirondacks include the headwaters of five major drainage basins. Lake Champlain and the Hudson, St. Lawrence, Mohawk and Black rivers all draw water from the Adirondack Park. Within the Park are more than 2,800 lakes and ponds, and more than 1,500 miles of rivers fed by an estimated 30,000 miles of brooks and streams. The Park contains 46 mountain peaks more than 4,000 feet tall. Forty-five percent of the Park is publicly owned Forest Preserve protected as "Forever Wild" by the New York State Constitution since 1895. One million acres of these public lands are classified as Wilderness.

The Adirondack Council was founded in 1975; it is a private, not-for-profit organization dedicated to enhancing the natural and human communities of the Park through research, education, advocacy and legal action. Our main offices are located within the Adirondack Park, with a satellite office in Albany, New York, the state capitol.

The Council receives moral and financial support from its more than 18,000 members and from private foundations. The Council's national and regional member organizations include the Natural Resources Defense Council, The Wilderness Society, National Audubon Society, National Parks and Conservation Association, Citizens Campaign for the Environment and the Association for the Protection of the Adirondacks

Our interest in The Clean Air Act and the problem of acid rain is long held. We were active contributors to the dialogue on acid rain in New York State in the early years of the 1980s, and helped craft the first acid rain law in the country which was adopted in 1984. The New York law identified both sulfur dioxide and nitrogen oxide as precursors to acid rain, sought limits on total emissions from utilities sited within the state and even proposed an innovative trading mechanism that Congress would adopt nationwide in the Clean Air Act Amendments of 1990.

The Adirondack Council was also an active participant in the national debate that led to the adoption of the acid rain program in Title IV of the Clean Air Act Amendments eight years ago. Our publication, "Beside the Stilled Waters," which was produced and distributed in cooperation with our member organizations, brought the problem of acid rain to the attention of the nation and to Congress.

The enactment of Title IV of the Clean Air Act Amendments of 1990, known as the Acid Rain Program, were not without controversy. Congress adopted an innovative "cap and trade" program, modeled after the New York legislation, which would abandon the so-called "command and control" approach to regulation, in favor of a free wheeling pollution allowance trading program that would provide utilities with the flexibility to make compliance strategies part of their long-term business planning. Both the need for and the cost of the program were hotly debated.

The Adirondack Council was among the critics. We raised concern that the cap on total emissions might not be low enough to protect sensitive areas. We used our membership on EPA's advisory committee to seek changes as the agency developed regulations to implement Title Four. Among other issues, the Adirondack Council felt that too many credits were in the system and that EPA was not pushing to require the most modern monitoring systems. Together with the Natural Resources Defense Council, we reluctantly sought changes in federal court. (Environmental Defense Fund, et al. V. Browner, No. 93-1203 and Consolidated Cases).

I am pleased to say that years of good-faith negotiation with the USEPA and the affected industry resulted in very positive changes to the program. The Adirondack Council formally withdrew our legal challenge to the regulatory program just a few weeks ago.

Over the past year, the program of Title Four has been hailed as a new beginning in cost-effective air regulation that puts the market to work to the benefit of the health and welfare of millions of Americans. Emission trading has been heralded as the solution to pollution reduction within the United States and indeed the globe.

We are here to say that before we run to embrace trading in other pollutants and in other markets, we need to take a hard look at the results of the great sulfur experiment.

We remember well that day when a deputy administrator for the Environmental Protection Agency grandly pronounced in a press release that the regulations implementing the new Clean Air Act Amendments would mean "the end to acid rain in the Adirondacks."

Certainly that was the intention of the Senate and the House. But wisely, Congress ordered in 1990 that a series of reports be prepared over the next few years, that would advise you of the projected results of the acid rain program.

The wisdom of requiring these reports at that time is now apparent. Until recently, we had some doubt that the members of the Senate would ever see them.

The first report was due in 1993, from the Environmental Protection Agency (ordered under sec. 404, Title IV appendix B of the 1990 CAAA) and was entitled the Acid Deposition Standard Feasibility Study Report to Congress. The report, dated October, 1995, was finally released in 1996, in partial settlement of the lawsuit brought by the Natural Resources Defense Council, the Adirondack Council and the State of New York.

The report concluded that the pollution reductions accompanying the 1990 Clean Air Act Amendments would not be sufficient to allow recovery of certain sensitive ecosystems (including the Adirondacks) and that many would continue to get worse. The report was particularly compelling for New Yorkers because it revealed that despite the reductions expected from the 1990 Amendments the loss of nearly fifty percent of its lakes and acidification of most streams in the Adirondack Park could be expected.

The second of two reports to Congress, the report of the National Acid Precipitation Assessment Program (NAPAP) was due in 1996, and was finally submitted to Congress as you left for the August recess in 1998 (ordered under Sec. 901J of the 1990 CAAA). It too was released under the threat of litigation from the State of New York. Despite its May 1998 title, the document would not be realistically available to the public until a year later (May, 1999), almost nine months after its transmission to Congressional committees.

In short summary, the NAPAP report peer reviewed, confirmed and substantially elaborated upon the findings of the earlier report to Congress submitted by the EPA.

We believe that a fair reading of the two reports to Congress lead to two very clear conclusions:

First, that the mechanism of a national cap in emissions coupled with the pollution allowance trading program has been an outstanding success. All facilities are in compliance and there is every reason to believe that the target level of emissions will be reached. The administrative and implementation costs of the program are less than a traditional regulatory approach. The actual cost of the program is substantially less than projected at the time of adoption.

According to EPA's 1998 Compliance report for the Acid Rain Program, all 713 utility boilers and turbines affected by the SO2 and NOx regulations met their emissions goals for 1998 as they have for every year since the program's inception. The simple, efficient design of the program, coupled with large automatic penalties for exceedences and the diligence of EPA administrators and the regulated community are all factors in this success. We can look forward to similar results when Phase II of the program, which will include many more power plants, begins.

The administrative and implementation costs are far below those associated with traditional regulatory approaches because in many ways the program is self-implementing. Devices known as Continuous Emissions Monitors (CEMS) count each ton of pollution as it is emitted from the smokestack. At the end of each year a utility must have enough credits (either initially allocated or purchased) to cover those emissions. The accounting of allowance holdings and trading is in a database maintained by EPA.

The compliance costs of the program are proving to be far below those estimated when Title IV was adopted. EPA estimated that the fully implemented program would cost four billion dollars a year; industry estimates were much higher. According to the Massachusetts Institute of Technology, compliance costs have so far been less than one billion dollars per year. Again, the design of the program helped achieve these relatively low compliance costs. Other factors, such as rail transportation improvements that reduced the cost of transporting low-sulfur coal were crucial here as well. Projections (by EPA and ICF Resources) of what new SO2 and NOx reductions would cost beyond those called for in Title Four indicate that deep new reductions could be achieved at or near the initial four billion dollar estimate.

While we hold no special expertise in the field of the health effects of air pollution, a brief review of the literature reveals some interesting facts. EPA studies (Human Health Benefits from Sulfate Reductions Under Title IV of the Clean Air Act, 1995) indicate that every dollar spent on reducing sulfate emissions can result in tens of dollars in savings in health care costs. With asthma cases on the rise nationwide we need to be aware that even brief exposure to relatively low levels of sulfur dioxide has been repeatedly shown to trigger asthma attacks.

The market for trading allowances is improving as well. Each year there are more trades between utilities occurring and the value of each allowance is rising steadily. In fact, the Adirondack Council is a market participant.

Over the past two years, we have acquired thousands of pollution allowance credits, most of them donated as a community good will gesture by utilities in New York. Unlike most other holders of allowances, it is our intention to retire all credits we may obtain by transferring them to a retirement account we maintain with USEPA. The Adirondack Council has permanently retired one- ton of sulfur dioxide on behalf of thousands of individuals around the nation, including New York Governor George Pataki.

The Second major finding of the two reports is that despite the success of the regulatory scheme, the overall cap in emissions is too high to accomplish the primary goal, which was to protect sensitive resource areas from the harmful effects of acid rain. The national cap on emissions of sulfur-dioxide from power plants must be cut. The reports agree that nitrogen oxide emissions are a significant contributor to acid rain and must be addressed.

The NAPAP report also confirms that acid rain is not just an Adirondack problem.

The damage that sulfur and nitrogen pollution causes is far from a regional issue. It is an issue of national, even international importance. Excess nitrogen in waters and in soils- "nitrogen saturation" - can be found in the Northeast and in West Virginia's Allegheny Mountains, Tennessee's Great Smoky Mountains, Colorado's Front Range of the Rockies and even as far west as the San Bernardino and San Gabriel Mountains of California. High levels of nitrogen deposition are causing nitrate to leach into stream water from these watersheds. This nitrate leaching acidifies streams and strips base cations from soils. In snow covered areas the flush of nitric acid stored in the snowpack is the leading cause of "acid pulses" which are responsible for fish kills during spring thaws.

NAPAP found that high elevation areas in the Northeast and the Appalachians are bathed in acidic cloud water for extended periods of time. Sulfuric acid from sulfur dioxide emissions is the significant cause of the widespread loss of red spruce trees in these areas. The mechanism for the die back is the leaching of calcium from the spruce needles and aluminum from the soils by the acidic fog which makes the trees susceptible to frost and winter injury.

The coastal estuaries of the entire east coast suffer from airborne inputs of nitrogen that can make up nearly 40% of the total nitrogen loaded into their systems. In estuary systems such as the Long Island Sound, Narragansett Bay, the Chesapeake Bay and Tampa Bay in Florida, nitrogen-based pollution is overloading the water with nutrients. This causes "eutrophication"- an overabundance of algae. When algae dies and decays, it depletes the water of precious oxygen needed by all aquatic animals. This condition is known as hypoxia. These blooms are associated with fin fish kills, shellfish kills and human illness.

NAPAP also concluded that areas of the United States that are not seeing damage now are likely to in the future due to an effect known as soil acidification. Over the long term, acidic deposition is slowly leaching away key soil nutrients like calcium and magnesium (known as base cations) that are essential for plant growth. This nutrient depletion is occurring in high and mid elevation forests in New England, New York and the Southern Appalachians. NAPAP cited studies concluded that fifty nine percent of the commercial pine forest soil in all of the southeast has low enough reserves of these chemicals to warrant concern.

Acid deposition, whether from sulfur or from nitrogen based pollution, not only leads to base depletion, but also the release of toxic compounds from soils to living things. For example, the release of aluminum from soils rapidly accelerates when pH drops below 5. The release of aluminum interferes with plant biochemistry. It is also the leading cause of fish mortality in affected lakes. In other words, it is not the acidity directly, but the aluminum toxicity that is responsible for the damage. This effect is very wide-spread. NAPAP cited studies conducted in the Shenendoah National Park show that fish species richness, population density, condition, age distribution, size and survival rate were all reduced in streams no longer able to neutralize acidity. Another NAPAP study of streams in the Adirondacks, Catskills and Northern Appalachians in Pennsylvania showed that episodic acidification "acid pulses" had long term adverse effects on fish populations including significant fish mortality.

Lake acidification, whether from sulfur or nitrogen is also implicated in the increase in mercury concentrations found in fish. Acidity leads to greater conversion of mercury from its less toxic elemental form to methyl mercury, which is much more toxic. Fish consumption warnings due to mercury contamination are common in many states and are on the rise. The bio-accumulation of mercury in some species of fish in New York has reached levels of grave concern to human health. In the western mountains of the Adirondack Park and in the Catskill Mountain reservoirs of New York City's water supply, the levels of mercury in fish exceed that which is safe for human consumption, and fishermen are urged to limit eating perch and bass. The acid rain problem is now a public health problem.

The cost to Americans from acid rain is not just the loss of pristine lakes in one of its greatest parks, or the almost imperceptible die out of sensitive species of trees, or even the haze that obscures the views of our national parks, it is also in the loss of our great monuments.

Acid rain is also falling on the District of Columbia. Acid rain is eating away at the marble of the Capitol building and that of many of the great monuments on the mall. The Lincoln memorial corrodes more every year. So it is with buildings and monuments throughout the Capitol, so numerous and so obvious that until recently you could obtain an illustrated walking tour guide to the acid rain damage to our nations capitol, thoughtfully provided free of charge. (Acid Rain and our Nation's Capital, US Dept. Of Interior / US Geological Survey. 1997)

The monuments to the fallen on the great battle sites of the Civil War, Gettysburg and Vicksburg, lose their inscriptions and carved features from the acid bath they endure each rainy day. The Statute of Liberty simply slowly melts away, day by day. This is why the fight to stop acid rain has been joined by many of the nation's prestigious organizations dedicated to historic preservation.

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The findings of the reports to Congress have been seconded by other studies that have found similar results;

Environment Canada, in its 1997 report "Towards a National Acid Rain Strategy", said that reducing sulfur emissions significantly beyond the current Clean Air Act requirements in both countries would be needed for all of eastern Canada to be protected from acid rain. In southern Canada, an area the size of France and Britain combined continues to receive harmful levels of acid deposition. As many as 95,000 lakes in the region will remain damaged.

A study recently released by Trout Unlimited that was conducted by the University of Virginia found that without deep additional deposition reductions, up to 35% of Virginia trout streams would become "chronically acidic" and would no longer support trout populations. The study further estimated that thousands of trout stream miles in the Southern Appalachians may be lost to acidification.

Just a week ago the journal Nature, perhaps the most respected journal of its kind, published the broadest geographical study of acid rain to date. Written by 23 scientists, all of them top acid rain researchers, and taking samples from roughly 200 sites, the study again confirmed and elaborated on the disturbing findings of earlier works. How much more does Congress need to hear before it takes additional action?

The disturbing and overwhelming evidence of the destruction of the streams, lakes and forests on public lands protected by our state constitution as forever wild, the contamination of fish in otherwise pure waters and the pollution of our coastal estuaries has raised grave concern in New York State. Our entire Congressional delegation co-sponsors legislation introduced by Senators Moynihan and Schumer (S.172), and in the House by Congressmen Boehlert and Sweeney (HR 25) that seeks further emission reductions.

In the past two years, the Office of the Attorney General of the State of New York has sought legal redress via other provisions of the Clean Air Act. Most recently, Attorney General Elliot Spitzer announced his intention in the coming weeks to bring suit against seventeen utilities in five states to redress what he considers to be violations of the Clean Air Act that result in illegal emissions of acid rain precursors.

In our state legislature, bills have been repeatedly introduced and passed (A.889) by the Chairman of the Environmental Conservation Committee (Richard Brodsky, D, Scarsdale) that would discourage the trade or sale of pollution allowances by New York utilities to upwind sources of acid rain. In July of this year, the State Senate unanimously passed a similar bill (S.4917) sponsored by his Senate counterpart (Carl Marcellino, R, Oyster Bay).

The states that are most adversely affected by the damage from acid rain need to see clear movement by Congress to adjust the sulfur program and deal with the companion problem of the long-range transport of nitrogen oxides. The failure of the Senate and the House to act will result in more interstate litigation, and new efforts state-by-state to interfere with the free-market attributes that have led to the effectiveness of the program thus far. The better alternative is to fulfill the original intent of Congress to solve the acid rain problem by taking action soon.

We respectfully suggest that the Senate take prompt action to:

--Build on the successful sulfur dioxide cap-and-trade program by creating a third phase of reductions further along the current time line. All of the advantages of the current program can be preserved in a predictable, flexible, and cost-effective manner while reducing sulfur-dioxide emissions by an additional 50%.

--Create a new cap-and-trade program for nitrogen-oxide emissions from utility smokestacks that mirrors the successful program already in place for sulfur. This cap and trade program should reduce nitrogen emissions from utilities nationwide by approximately 70% of 1990 levels, resulting in a substantial and beneficial cut that is also reasonably achievable.

To put this recommendation in perspective, we would like to address the subject of the ongoing battle over new air regulations issued last September by the USEPA, which at this time is the subject of litigation.

USEPA has proposed a twenty-two state voluntary utility cap and trade program for nitrogen emissions as the preferred response for state compliance with its new ozone program.

The EPA ozone proposal, which is only summer seasonal, will not address in any significant way, the acid rain problem. The acid rain dilemma is the total loading of nitrogen to sensitive areas. For high elevation areas the main concern stems from the buildup of nitrogen in the snow pack and the subsequent "acidic pulse" to aquatic systems in the spring of the year. Year-round controls will be necessary to address the nitrogen problem. Furthermore, only nationwide reductions will address the problems outside of the twenty-two state region covered by EPA's plan.

Congress can level the competitive playing field for the utility industry by enacting national controls which will permit an expanded allowance trading market that will be more efficient and cost effective. The Congressional Budget Office has reached similar conclusions. In a report on the proposed nitrogen/ozone rules this summer. (Factors Affecting the Relative Success of EPA's NOx Cap-and-trade Program, June 1998), the CBO identified similar benefits that would result if Congress provided additional statutory authority to EPA.

Finally, we respectfully recommend:

-- Congress should provide additional resources to the monitoring and research networks that, on a shoe-string budget, have provided the nation's research scientists with invaluable data on the actual state of affairs on the ground and in the air. The level of scientific certainty and confidence on acid rain has improved substantially since 1990, but existing research activities should be expanded..

The need for additional action on acid rain is not just a New York perspective. In May of l998, the Conference of New England Governors and Eastern Canadian Premiers issued a joint call for action that recommended additional reductions in utility emissions of SO2 and NOx. Earlier this year, the Adirondack Council was privileged to be joined by national, state and regional organizations representing hundreds of thousands of Americans concerned about the health of our forests, the productivity of our coastal bays, the improvement of our fisheries and the protection of our heritage, in a public letter to Congress asking that the acid rain program be revisited.

Mr. Chairman, this nation committed itself to the task of ending the destruction of acid rain almost a decade ago. We think it is time to finish the job. Thank you again.