"The question whether the defendants have done everything reasonably practicable to avoid the cause of offense is important. Reasonable care must be used to prevent annoyance and injury to other persons beyond what the fair necessities of the business require."

In the more recent case of People v. Oswald (116 N.Y. Supp. 2d 50 (1952)), where the defendant was prosecuted for violation of provision of the Administrative Code of the City of New York prohibiting the emission of dense smoke, the defendant was held not to be guilty since he had done everything possible to comply with the regulations promulgated under the code. In so holding, the court said:

"This legislation is regulatory in character and must be interpreted in the light of its necessity and the purpose to be accomplished. It is malum prohibitum and regardless of the efforts made by any individual to avoid a violation of the law or regardless of the intent if the prohibited acts occur that in and of itself is sufficient to constitute a violation. But this rule is subject to reason and the court must not close its eyes to obvious facts. The law does not seek to compel a man to do that which he cannot possibly perform. (Walden v. City of Jamestown, 178 N.Y. 213, 217, 70 N.E. 466, 467.)

"A reasonable interpretation should be made and if the adduced proof shows that a defendant has complied with the literal requirements of the law as nearly as it is practicable to do so under the prevailing circumstances, and that he has adopted the best devices presently known to all, then the letter and spirit of the legislation has been complied with. In interpreting statutes sense must be brought out of words used." (McCluskey v. Cromwell, 11 N.Y. 593.)

Perhaps the differing views on whether use of the best device is a defense can be rationalized. They probably are determined by the gravity of the problem in a given location. Assuming a situation in which air pollution has become so severe as to cause great annoyance and damage, or perhaps personal injury or death, there can be little doubt that by adopting the best control devices known a defendant could not shield himself from liability, civil or criminal.

19. Control by local air pollution control agencies of vehicles in interstate

commerce.

Many instrumentalities in interstate commerce are sources of air pollution. It has been noted that a jet aircraft on takeoff produces more air contaminants than a thousand automobiles. Oceangoing ships, railroads, etc., are also potential sources of air pollution. The question then becomes what, if anything, can local agencies do to control these sources of air pollution?

The problem was considered by the Senate of the 84th Congress. Hearings were conducted and, subsequent to the hearings, the Federal Government expressed its intention not to preempt the field.

"The committee recognizes that it is the primary responsibility of State and local governments to prevent air pollution. (Senate Rept. No. 389, 84th Cong., 1st sess. 3.)

"[I]n recognition of the dangers to the public health and welfare, injury to agricultural crops and livestock, damage to and deterioration of property, and hazards to air and ground transportation, from air pollution, it is hereby declared to be the policy of Congress to preserve and protect the primary responsibilities and rights of the States and local governments in controlling air pollution, to support and aid technical research, to devise and develop methods of abating such pollution, and to provide Federal technical services and financial aid to State and local government air pollution control agencies * * * and institutions in the formulation and execution of their air pollution abatement research programs." (69 Stat. 322; 42 U.S.C., sec. 1857 (1958 ed.).)

State control of interstate commerce for the purpose of preventing air pollution has been the subject of litigation. In the case of Huron Portland Cement Co. v. Detroit (362 U.S. 440, 4 L. Ed. 2d 852, 78 A.L.R. 2d 1294 (1960)), the court stated:

"The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city's inhabitants. Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power. In the exercise of that power, the States and their instrumentalities may act, in many areas of interstate commerce and maritime activities concurrently with the Federal Government ***

"The basic limitations upon local legislative power in this area are clear enough. The controlling principles have been reiterated over the years in a host

of this court's decisions. Evenhanded local regulation to effectuate a legitimate local public interest is valid unless preempted by Federal action, *

"In determining whether State regulation has been preempted by Federal action, the intent to supersede the exercise by the State of its police power as matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field * * *' id."

It should be noted, however, that at least in one case, it would appear that the regulation of interstate commerce will be subjected to severe scrutiny by the Federal courts.

"If the prohibition against the discharge of dense smoke is so applied that a steamship company may be found guilty of a violation because, in the operation of great liners with up-to-date equipment, dense smoke is discharged for a few minutes while a vessel is being prepared for departure, though it is shown that even in the exercise of the greatest care, it would be impossible or impractical to avoid such smoke, then it seems to me clear beyond question that the ordinance is unreasonably, obstructs foreign commerce, and exceeds the power of the State" (People v. Cunard White Star (1939 4-3 decision) 280 N.Y. 413; 21 N.E. 2d 489, 490).

It would appear from the language in the Cunard White Star case that local agencies must be prepared to demonstrate that any air pollution caused by a vehicle in interstate commerce can be controlled by reasonable measures, before the local agency can circumscribe the activities of the interstate vehicle.

CONCLUSION

In the preceding discussion we have seen some of the development of the law of air pollution and its control. From the standpoint of the public health official it is well to note that the rising interest in the field must inevitably change the emphasis in the case law. This means that in the future more cases will be decided in relation to statutes rather than to principles of common law nuisance. A greater percentage of the cases will involve contamination of the air mass rather than emissions which can be traced to specific damage to nearby residents or to neighboring property.

The public health officials must be familiar with these legal principles in order to act effectively against air pollution. With the help of his attorney he will have to be able to prepare and support regulations which are effective and which will withstand the test of litigation.

A very important function which public health officials in this field can now perform is the development of information about the effects of air pollution upon the public health.

As we noted earlier, legal control of air contamination has seldom been based on a demonstrated cause-and-effect relationship between the contaminant and any injury to health. In recent years some research work has been performed in an attempt to provide this link. To our knowledge, however, no court or regulatory agency has ever been convinced that there is such a direct relationship. No legislative body has acted to control air pollution with much more than a strong suspicion that the regulation which it was adopting would actually protect the health of people.

Part of our job is to do what we can (and there is much we can do) with the knowledge and legal precedents at hand. Another part of our job is to exert our efforts to fill in the gaps in our scientific knowledge. This means individual study and encouraging research and appropriations of funds for research, at every opportunity.

Some day a court will decide from the scientific evidence before it that a particular emission of air contaminants should be controlled because it causes a particular damage to the human body. Some day rapid transit systems will be developed and power resources will be allocated upon the basis of proved benefits to the public health. When these things happen, we will have entered a new era in air pollution control.

STATEMENT OF CLARA MCDONALD, PRESIDENT, UNITED PATRIOTIC PEOPLE OF U.S.A., INC.

I have high regard for motor vehicles and their use. No one complained of air pollution the result of electrically driven street cars. This system was

taken from the Los Angeles area.

It is now almost impossible to buy premium gasoline for use in the gasoline tank. In the gasoline, according to officials' own reports, is sulfur and leaddeadly poisons. We must concede that much blame for air pollution is the result of the manufacturing and using cheap, low-grade, profitmaking gasoline, and leads me to ask: Why the hullabaloo about the auto vehicles needing "devices"?

To quote a statement made before the motor vehicle pollution control board, by Dr. A. J. Von Haagen-Smit of Cal Tech: "There is nothing wrong with the automotive industry." Why blame the innocent automotive vehicle, old or new? Automotive devices are a curse on intelligent thinking. Certainly a $30 million expenditure and cost, as proposed, is a disastrous blow to the economy of Los Angeles County and to its car owners.

Dr. Faith, who invented the afterburner, says: "Afterburner use requires white gasoline usage." When clean white gasoline is restored, there will be "no need" for an afterburner, states Mr. Chandler Phillips, a qualified, experienced expert in this field,

We receive the information from expert mechanics that with the use of an afterburner and dirty gasoline, the car will burn up.

Oil producers and manufacturers attest to results in abating air and smog pollution through the exclusive use of clean gasoline.

In the California Legislature is pending A.B. 2163, introduced by Assemblyman George E. Danielson. Hearing is to be held in Los Angeles on May 7, 1964, toward results as outlined in this brief résumé.

I offer for your records, a statement issued to some of the California State legislators.1

We, organization affiliates, endorsed the air pollution control board and the Los Angeles County Board of Supervisors in its endeavor to replace fuel oil burning with natural gas through the extension of rule 6 to year-around use.

STATEMENT SUBMITTED BY MILO A. PARKER, CHAIRMAN, GLENDALE, CALIF., BETTERMENT COMMITTEE, INC.

Every day in the year hundreds of tons of hydrocarbons from automobile exhausts are poured into the air of large metropolitan areas.

By exposing cultures of human conjunctival and lung cells to the ambient air of Pasadena, Calif., a group of scientists there have concluded that there are enough carcinogens in the air to trigger the initial steps toward malignancy. "We can't say that we've induced ambient air to cause malignancy, but we can say that we see changes in cell cultures which are identical to those occurring when the cells are exposed to known carcinogens."

The changes noted by the researchers were a 30-percent increase in growth rate and an approximate doubling of the amount of chromosomal bridging and scattering, when compared with controls that had not been exposed.

The air samples were collected between noon and 3 p.m. during the months of August. September, and October-notorious smog months. The air was then washed with sterile water and the water used to dilute a double strength tissue culture medium.

With the air pollutants thus entrapped in the medium, the cells were incubated for 4 days and then counted on an electronic cell counter. Time-lapse motion picture records of the cells were taken and analyzed to determine the average interphase and mitotic times of the treated and control cells.

Previously Dr. Rounds and Dr. C. M. Pomerat, director of the foundation's department of cellular biology, had done similar tissue culture experiments in which butter yellow, a known carcinogen, had been applied to the cells.

The changes occurring in smog-exposed cells were nearly identical in every way with those seen in the butter yellow treated cells, according to Dr. Rounds. The researcher is confident that it is the hydrocarbons in the polluted airand not the gaseous components-that are doing the damage. The gases, such as sulfur dioxide and nitrogen oxide, are probably involved in producing conjestion, bronchitis, and emphysema effects of smoggy air.

1 In committee files.

2 Chairman of the Glendale Betterment Committee, 1014 North Cedar Street, Glendale, Calif., with the kind permission of Dr. Donald E. Rounds of the staff of the Pasadena Foundation for Medical Research, 99 North El Molino Avenue, Pasadena, Calif.

"If you breathe smoggy air for 3 minutes you'll get changes comparable to what you see occurring in our cell studies," Dr. Rounds said. We don't all get lung cancer, however, because most of us have hard-working phagocytes which clear out the noxious agents. In addition, many of the abnormal cells die because the chromosomal changes are lethal, the researcher explained.

Dr. Rounds believes his experimental setup, in which a full concentration of the pollutants are in direct contact with lung cells, is consistent with the natural situation of man, although in the natural situation there are celia to sweep away small particles entrapped on the walls of the trachea and bronchi.

Dr. Rounds pointed out that Dr. Paul Kotin and Dr. Hans Falk formerly of the University of Southern California School of Medicine and now at the National Cancer Institute, showed that aldehydes, organic acids, and other air pollutants inhibit ciliary beat, allowing abnormal deposits of soot particles with their absorbed carcinogens to remain in contact with the cellular lining of the airways.

In addition, the same two scientists have reported a predominance of the small-diameter particles (0.1 to 1.0 micron) in the atmosphere and in the exhaust of vehicular engines.

"Therefore, the lack of a cleansing mechanism in tissue culture vessels probably does not radically alter the significance of our results" the Pasadena researcher told Medical World News.

Dr. Rounds and Dr. Pomerat have used the same tissue culture technique to test the efficiency of automobile exhaust control devices now under study by the California State Motor Vehicle Pollution Control Board.

By exposing tissue cultures to exhaust before and after it has passed through the automobile filtering devices they are able to observe the ability to screen out biologically active exhaust components.

Recent California law requires that devices which will eventually become mandatory on all motor vehicles in the State filter at least 80 percent of the hydrocarbons and 60 percent of the carbon monoxide.

Dr. Rounds points out that the State now checks only one of many types of hydrocarbons, it is possible that a device would be approved for general use which would meet State requirements, without removing the hydrocarbons potentially capable of causing cancer.

The State department of public health, which sets the standards for ambient air which auto devices must meet, is now considering duplicating the Pasadena test system to insure adequate safety, the biologist said.

His work is the first done on human cells demonstrating a medical hazard from particulates bearing carcinogenic hydrocarbons.

NOTE.-State of California allows 20 percent pollution in the ambient air in California, therefore if the efficiency of the devices is 80 percent and air at 80 percent clean, then efficiency of device would be only 64 percent. None of the devices now being forced on people have any guarantee with them on efficiency under all conditions. All auto mechanics have rejected all crankcase devices as detrimental to plugs and carburetion.

STATEMENT OF DAVID PLOTKIN, LOS ANGELES, CALIF.

Mr. Chairman, and members of the committee, my name is David Plotkin. I live on top of a little hill not more than 4 miles from this room as the smog flies. By occupation, I am a consulting appraiser. That's an esoteric name for those of us who testify as expert witnesses and write voluminous reports for our clients on the fair market value of real and personal property.

Although I am here as a private citizen, I would like to use the phaseology of appraisal to express my view of our local smog situation. As an appraisal report might state, "by reason of my investigation and by virtue of my experience, I have formed the opinion that smog is not here to stay. It's bad, it's getting worse, and it's got to go."

We, the people of Smogsville, are doing everything that we can to help eliminate smog. We are making a start on a pragmatic level. That is, some things can be done now-while science is attacking the basic causes of smog and while a national program to combat the evils of smog is in the process of being developed by you gentlemen. The "here and now" approach steps on some toeshere and now.

In this very room on January 14, the president of our local fuel gas monopoly reluctantly admitted to our capable board of supervisors, after considerable prodding by them, that the gas which his company supplies is less smog producing than sludge or whatever type of so-called fuel oil they use in our industrial and power plants.

To get such an admission from a gas company official was quite an accomplishment for our board of supervisors, because the gas companies are probably wholly owned subsidiaries of one or more of the competing oil giants who are engaged in the honest occupation of fighting both here and in Washington before the Federal Power Commission for the right to supply us with the natural gas we need 365 days a year-366 days, this year.

Of course, this is just one step forward. Unfortunately, we who live here, all 6 million of us, own 3 million smog producers. And while we are searching for some practical and reasonably effective way of controlling pollution from cars on the State level, I feel that this is one area in which national effort, planning, and even prodding is needed.

Smog is a national problem. Most experts in the field of air pollution claim that 85 percent more or less of our smog is caused by automobiles all over the country. In this field, you can, you should, you must act to stamp out this major source of smog. To paraphrase Ben Franklin-if we don't act together, we shall be enshrouded literally, figuratively, and individually, in smog. Thank you, gentlemen.

STATEMENT OF MRS. HARRY BARKELEW, ALHAMBRA, CALIF., MEMBER, ALHAMBRA WOMAN'S CLUB

THE AIR POLLUTION PROGRAM-A FRANKENSTEIN

I am Mrs. Harry Barkelew, member of the Alhambra Woman's Club, which is affiliated with the California Federation of Women's Clubs and the General Federation of Women's Clubs across the Nation. I wear two hats as I am wife of inventor of the original direct-flame afterburner for motor vehicles. The information conveyed herewith is from direct channels.

The direct-flame afterburner was tested in 1955 by the Los Angeles APCD under S. Smith Griswold and showed elimination of 97 percent hydrocarbons, 81 percent carbon monoxide, 39.5 percent aldehydes and 69 percent acetylene. A second test on an improved device was delayed 17 months. Incomplete report showed no percentages of gas elimination. Word also received from Mr. Griswold that they were unable to approve any device under law. Research covered cars, trucks, and buses.

Subsequently Mr. Griswold downgraded and defamed said devices while lobbying for others and blowing hot and cold over each automotive industry device. The public has lost confidence in his word. Scientists of our leading universities and colleges who have received grants of money for research from Federal and State Governments, publish overall statements without test basis. Harm has been done in public minds and to cause of control of air pollution, creating a true "Frankenstein".

Since the State MVPCB has been in existence and working on test criteria-over 31⁄2 years-inventor has attempted to get "test criteria for trucks and buses", which he believed would be first logical approach to inform and educate the public as to merits and results, before law required installation of devices under penalty of law. These devices costwise have proved to be self-liquidating on transportation buses. This by savings in fuel and maintenance to engine, spark plugs, etc. Records show 50 buses with 1957 devices traveled over 5 million miles in 5 years. Old buses with devices were sold to outlying cities and another 50,000 to 60,000 miles have been added to lifespan of device insuring reliabilty and performance.

The State board, knowing these facts from records at their disposal, delayed until January 23, 1964, to supply inventor with test criteria for test required to attain certification. Two tests made on improved devices by State testing laboratories during this period also contained no percentages of gas eliminaton, even though cost was $1,000 each. Test criteria for cars require 12,000 miles performance while those on trucks and buses running on same streets in same territory are double to 24,000 miles.