EPA-450/3-75-038
February 1974
THE CONTRIBUTION
OF URBAN PLANNING
TO AIR QUALITY
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Waste Management
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
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EPA-450/3-75-038
THE CONTRIBUTION
OF URBAN PLANNING
TO AIR QUALITY
by
George Hagevik, D. Mandelker, and R. Brail
Center for Urban Policy Research
Rutgers University
New Brunswick, New Jersey 08903
Contract No. 68-02-0278
EPA Project Officer: John Robson
Prepared for
ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Waste Management
Office of Air Quality Planning and Standards
Research Triangle Park, N. C. 27711
February 1974
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This report is issued by the Environmental Protection Agency
to report technical data of interest to a limited number of readers.
Copies are available free of charge to Federal employees, current
contractors and grantees, and nonprofit organizations - as supplies
permit - from the Air Pollution Technical Information Center,
Environmental Protection Agency, Research Triangle Park, North
Carolina 27711; or, for a fee, from the National Technical Information
Service, 5285 Port Royal Road, Springfield., Virginia 22161.
This report was furnished to the Environmental Protection Agency
by the Center for Urban Policy Research, Rutgers University, New
Brunswick, New Jersey, in fulfillment of Contract No. 68-02-0278.
The contents of this report are substantially the same as received from
the Center for Urban Policy Research. The opinions, findings, and
conclusions expressed are those of the author and not necessarily those
of the Environmental Protection Agency. Mention of company or product
names is not to be considered as an endorsement by the Environmental
Protection Agency.
Publication No. EPA-450/3-75-038
11
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PREFACE
A number of persons contributed to the preparation of this study.
Dr. George Hagevik, Chief, Environmental Resources Division, Association
of Bay Area Governments, served as director of the study and as editor of
this volume. In addition, he wrote Chapters 1, 4, 9, 10, and 11, and parts
of Chapters 5 and 6. Dr. Daniel Mandelker, Professor of Law, Washington
University prepared Chapter 2 with Susan Rothschild (J.D., Columbia Univ-
ersity, 1947) and contributed to Chapter 6. Dr. Richard Brail, Assistant
Professor of Urban Planning and Policy Development, Livingston College,
Rutgers University prepared Chapters 7 and 8. Judy Bever (J.D., Columbia
University, 1974) prepared Chapter 3. Ben Suckewer (J.D., Columbia Univ-
ersity, 1974) contributed to Chapter 6 and Mark Yecies (J.D., Columbia
University, 1974) prepared part of Chapter 5. Bill Gustafson (M.U.P.,
Rutgers University, 1973) and Kevin Guinaw (M.U.P., Rutgers University,
1974) assisted in various stages of the research project and report prep-
aration.
Since most of the work on this study was completed in 1973 no mention is
made of the preparation of guidelines on air quality maintenance which EPA has
undertaken in 1974. Also, relevant material published after 1973 is not in-
cluded .
111
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CONTENTS
Page
LIST OF TABLES AND FIGURES xii
Chapter
1 INTRODUCTION 1-1
2 THE POTENTIAL ROLE OF LAND USE CONTROLS
UNDER THE CLEAN AIR ACT OF 1970 2-1
THE LAND USE CONTROLS PROVISION 2-2
LAND USE CONTROLS IN STATE
IMPLEMENTATION PLANS
Direct Versus Indirect Land Use Controls 2-6
Comprehensive and Regional Planning 2-8
Government Entities 2-9
LAND USE CONTROLS AND THE CLEAN AIR ACT 2-11
The Duty Under the Act to Impose
Land Use Controls 2-11
Primary Standards 2-11
Secondary Standards 2-13
Maintenance of Air Quality 2-15
EPA Implementation of the Land Use Control
Provisions 2-16
Recognition of Socio-Economic Factors 2-18
Extension of Deadlines 2-19
Weakening the Act 2-21
CONTROLS OVER STATIONARY POLLUTION SOURCES 2-23
The Question of Federal Pre-emption 2-24
Pre-Construction Review 2-27
EPA's Interpretation 2-28
The Need for Local Authority 2-30
v
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Page
Indirect Sources 2-32
Ambient Air Quality Standards and Federal
Performance Standards 2-35
IMPACT OF RELATED FEDERAL LAND USE CONTROL
AND ENVIRONMENTAL LEGISLATION 2-36
PRACTICALITIES OF EXERCISING LAND USE CONTROLS
IN AIR POLLUTION PROGRAMS 2-40
CONCLUSION 2-43
3 THE VERMONT AND MAINE COMPREHENSIVE LAND
USE STATUTES: AN ANALYSIS OF PROCEDURES 3-1
STRUCTURE OF THE STATUTES
Vermont's Act 250 3-3
Maine's Two Land Use Laws 3-11
ADMINISTRATIVE STRUCTURE 3-16
Under Vermont's Act 250 3-16
Act 250 and Air Pollution Control in Vermont 3-27
Maine's Administrative Structure 3-31
THE ROLE OF PLANNING IN LAND USE CONTROL 3-36
State-wide Land Use Control? 3-36
The Interim Plan 3-39
The Permanent Plans 3-40
Coordination of State, Local, and Regional Planning 3-46
Planning Under the Maine Statutes 3-49
EVALUATION 3-52
Machinery of Control 3-53
The Role of Planning 3-59
STATE-WIDE REGULATION 3-63
ADMINISTRATIVE REVIEW PROCEDURES FOR RELATING
LAND USE PLANNING TO AIR QUALITY MANAGEMENT 4-1
VI
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Page
THE NATIONAL ENVIRONMENTAL POLICY ACT 4-3
CEQ GUIDELINES FOR PRODUCING 102 STATEMENTS 4-5
The Procedures 4-5
Problems with the 102 Process 4-5
THE A-95 REVIEW PROCESS 4-16
Project Notification and Review System 4-17
Direct Federal 4-18
State Plans 4-18
Coordination of Planning in Multi-Jurisdictional
Areas 4-19
Accomplishments and Shortcomings of A-95
Review 4-19
NEPA, A-95 REVIEW AND AIR QUALITY 4-22
THE PERMIT SYSTEM 4-28
The Los Angeles Permit System 4-30
The Permit System as a Locational Control
Technique 4-31
INDIRECT SOURCES 4-33
5 BUFFER ZONES AS A CONTROL OVER AIR POLLUTION:
AN APPLICATION OF THE EMINENT DOMAIN AND
ZONING POWERS 5-1
DISPERSION AND VEGETATION 5-4
Dispersion Characteristics of Aerosols 5-4
General Dispersion Characteristics of Carbon
Monoxide: A Case Study 5-6
The Utility of Vegetation as a Pollutant
Absorption Device 5-8
MICROCLIMATE 5-9
WATER 5-11
VII
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Page
NOISE 5-12
GENERAL OBSERVATIONS ON THE UTILITY OF BUFFERS 5-16
BUFFERS AND THE HIGHWAY 5-18
USE OF THE EMINENT DOMAIN POWER TO ACQUIRE
PROTECTIVE BUFFERS 5-20
Constitutionality of Use of Excess Condemnation 5-21
Statutory Authority for Excess Condemnation 5-26
Indirect Control: Taking Property for Beautification
Purposes 5-27
Direct Taking to Control Air Pollution as a
Public Use 5-29
Acquisition of Partial Interest 5-36
EMINENT DOMAIN: A SUMMARY 5-38
USE OF THE POLICE POWER TO REQUIRE PROTECTIVE
SETBACK AREAS ALONG HIGHWAY CORRIDORS 5-39
Constitutionality of Setback Requirements
in General 5-40
Setbacks in Rural Areas 5-45
Permitted Depth of Setbacks 5-46
Planting Requirements in Setbacks 5-49
Application of Setbacks to Individual Properties 5-52
SELECTED LOCAL CONTROLS 6-1
PERFORMANCE STANDARDS IN ZONING ORDINANCES 6-1
The Origins of Performance Standards Zoning 6-2
Performance Standards and Air Pollution 6-7
Smoke 6-8
Dust and Other Particulate Matter 6-10
Toxic or Noxious Matter 6-13
Sulfur Oxides 6-13
The Limitations of Performance Standards Zoning 6-14
The Zoning Ordinance and the Air Pollution
Control Code 6-17
Vlll
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Page
Reconciling Performance Standards with the
Air Pollution Code 6-21
Conclusions on Performance Standards 6-24
SPACING CONTROLS IN ZONING ORDINANCES 6-25
Zoning Controls Over the Location of Filling
Stations 6-27
Spacing Controls Over Filling Stations 6-29
Effectiveness of Local Controls 6-32
THE DESIGN OF URBAN STRUCTURES 6-33
Current Building Design 6-35
The Effects of Building Design on Air
Pollution Dispersal 6-38
Siting Controls and Building Codes 6-43
THE GENERATION OF EMISSIONS 7-1
A GENERAL FRAMEWORK 7-1
CURRENT EMISSION INVENTORY PROCEDURES 7-4
ESTIMATING CURRENT AND FUTURE EMISSIONS 7-6
The Guidance System Approach 7-7
Mathematical Extrapolations 7-9
INDUSTRIAL EMISSIONS 7-13
Combustion and Process Components 7-13
Fuel Input 7-17
Production Output Analysis 7-21
RESIDENTIAL EMISSIONS 7-25
COMMERCIAL AND INSTITUTIONAL EMISSIONS 7-28
TRANSFORMATION EMISSIONS 7-31
PLANNING IMPLICATIONS 7-34
The Scale of the Study 7-35
Utility and Imperfect Data 7-37
THE DISPERSION OF POLLUTANTS 8-1
IX
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Page
METEOROLOGY AND DISPERSION 8-1
MODELING ATMOSPHERIC DISPERSION 8-5
VALIDITY AND MEASUREMENT PROBLEMS 8-12
Types of Error 8-13
Error Propagation: Single Sources 8-17
Error Propagation: Multiple Sources 8-21
The Implications of Measurement Error 8-24
STRATEGIES FOR PROJECTING AIR QUALITY 8-27
An Alternative to Dispersion Modeling 8-27
Guidelines for Utilization of Techniques 8-30
General Observations 8-30
Specific Analytic Alternatives 8-33
PUTTING THE STRATEGIES TO WORK 8-34
AIR QUALITY MANAGEMENT IN CALIFORNIA 9-1
GOVERNMENTAL STRUCTURE 9-2
THE STATE IMPLEMENTATION PLAN 9-4
STATE LAND USE PLANNING IN CALIFORNIA 9-7
EMISSION ALLOCATION 9-11
INDIRECT SOURCE REGULATIONS 9-22
AIR QUALITY MANAGEMENT IN THE SAN FRANCISCO
BAY AREA 9-25
Topography and Meteorology 9-25
The Administrative Framework of the Bay Area
Air Pollution Control District 9-27
The Permit System 9-30
The Effectiveness of the Permit System 9-36
Evaluation 9-37
CONCLUSION 9-39
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10 THE CONTROVERSY OVER NON-DEGRADATION 10-1
ARGUMENT OF THE SIERRA CLUB 10-3
ARGUMENT OF THE ENVIRONMENTAL PROTECTION AGENCY 10-7
IMPLICATIONS OF THE DECISION 10-13
APPROACHES TO IMPLEMENTING NON-DEGRADATION 10-15
IMPLICATIONS OF THE PROPOSALS 10-16
11 A PERSPECTIVE ON LAND USE CONTROLS 11-1
CONSTITUTIONAL ISSUES 11-1
Due Process of Law 11-2
Equal Protection of Law 11-3
Delegation of Power 11-4
Effective Use of Controls 11-5
VIEWS OF PLANNING AGENCIES 11-5
EDUCATIONAL EFFORTS 11-7
POLITICAL BARRIERS TO IMPLEMENTATION 11-8
THE DEFICIENCIES OF SINGLE SECTOR PLANNING 11-9
.APPENDIX A-l
BIBLIOGRAPHY B-l
XI
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LIST OF TABLES AND FIGURES
Table Page
7-1 Pollutant Emissions by Land Use Category and
Transportation Activity 7-20
7-2 Motor Vehicle Emission Factors 7-32
8-1 Stability Classes 8-5
Figure
7-1 A System of Models Relating Land Use and
Transportation to Air Quality 7-12
7-2 Process and Space-Heating Emissions Over
the Year 7-15
M "Box" Diffusion Model 8-6
3-2 Gaussian Diffusion from a Point Source 8-8
XII
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CHAPTER ONE
INTRODUCTION
There is now widespread agreement in American society that many of
our environmental problems are related to land use. Although we in the
United States have long given lip service to the need for land use planning,
it seems that only in the 1970s will the combined effects of the energy cri-
sis and environmental pollution result in governmental plans and regulations
that effectively limit and control the use of the land. The focus of this
study is on how one type of environmental pollution--air pollution--relates
to land use planning. If a comprehensive study were being done, one should
also be concerned about the relationship between land use and transporta-
tion and about how the control of air pollution relates to control stra-
tegies for other kinds of environmental pollution. However, the scope of
this study is sufficiently broad that it was impossible to give more than
o
passing attention to these important topics.
A central concern of this volume is the land use planning implications
of the 1970 amendments to the Clean Air Act. The guidelines promulgated
under the Act require that the respective states develop and implement
"implementation plans" that will ensure that national air quality standards
are achieved and maintained. The regulations of the U.S. Environmental
Protection Agency (EPA) generally require that state plans must set forth
a control strategy for the attainment and maintenance of air standards, and
a set of compliance schedules that are consistent with the state's control
strategy. Also included are a contingency plan for preventing the occur-
rence of air pollution levels that would cause significant harm to human
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health, a set of source surveillance procedures to ensure that the construc-
tion or modification of stationary sources will not interfere with the at-
tainment or maintenance of the national standards, provisions for an air
quality surveillance network, and an estimation of resources needed to carry
out the implementation plan.
With one exception, the states were required to have the specific le-
gal authority available to them to implement their plans at the time of
their submission to EPA. The one exception was the authority to carry out
land use and transportation control measures if the plan included them.
Where a state's control strategy included such measures, the plan was to
set forth a timetable for obtaining the necessary legal authority. Where
it was determined that a state's air pollution control statute did not
provide all of the required legal authority, the state's attorney general
was to be consulted for an opinion on whether the necessary authority is
conferred by a general grant of powers in an air pollution control statute
or provided for in other statutes. Where a state plan indicated that one
or more local agencies would be responsible for cany ing out any portion
of the implementation plan, a similar assessment was made of the legal
authority available to such agencies.
Where existing air pollution levels exceeded the national standards,
state plans were to provide for the degree of emission reduction necessary
for attainment and maintenance of the national standards, including the
degree of emission reduction necessary to offset the probable impact of
projected growth of population, industrial activity, motor vehicle traffic,
and other factors. There is a great deal of uncertainty involved in pro-
jecting growth and predicting its impact on air quality. At the present
time growth projections extending more than three years into the future
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are generalized, and they inevitably are based on a variety of assumptions,
many of which are tenuous. Even where growth policies have been adopted
by state or local governments, such policies usually provide only general
guidelines at best. Techniques do not exist for translating generalized
projections of population growth and industrial growth into accurate pre-
dictions of future air quality. Accordingly, the states have had con-
siderable difficulty developing control strategies adequate not only for
the attainment but also for the maintenance of the national standards.
Since EPA is sonevdiat better equipped to predict future levels of air
quality, the agency increasingly is looking towards land use planning as
the mechanism both for predicting future levels of air quality and for
ensuring that these levels will not violate the air quality standards.
In Chapter 2 the analysis of the Clean Air Act as it relates to land
use controls yields the following conclusions:
1) The lack of clarity in the federal law on the issue of land use
controls has resulted in the absence of a clear strategy for using land
use controls at the state and local levels to achieve air quality objec-
tives .
2) There is an important need for state coordination of land use
planning since land use controls affecting air quality may be inconsis-
tent if not counterproductive unless they are coordinated carefully with
land use controls having other objectives.
3) Many of the important legal powers relating to land use control
are already possessed by state and local agencies. The need is to work
out an appropriate package of controls which in combination can achieve
air quality control objectives.
4) In some cases controls over land use will require the payment
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of compensation, for example, payment for the acquisition of buffer strips.
But the Clean Air Act's reference to land use "controls" appears to pre-
clude resort to compensatory techniques when needed..
5) Both the Senate and House versions of the "Land Use Policy and
Planning Assistance Act" contain a provision requiring that state land
use programs provide for a method for prohibiting the location of major
sources of pollution where they would violate air quality standards.
One can conclude that this provision makes land use controls the hand
maiden of air pollution source controls. But the Clean Air Act reads as
if land use controls are used independently to establish land use patterns
that will assist in achieving and maintaining air quality standards.
Chapter 3 is an attempt to determine the nature of practical prob-
lems of relating land use planning to air quality management at the state
level. Since Vermont and Maine have been leaders in state land use plan-
ning in the United States, operating procedures of the state planning agen-
cies of these states were examined.
The development of air quality implementation plans is a state re-
sponsibility and the development of state controls over land use must be
considered a critical issue in implementing the Clean Air Act. Exper-
ience with Maine and Vermont state land use control Legislation suggests
that coordination of state land use with state air pollution controls has
not yet proceeded very far and that additional analysis of this coordination
must be carried out before successful complementary programs can be devel-
oped at the state level. To this end, Chapter 9 examines recent experience
in California with a program for facilitating such coordination.
Chapter 4 examines administrative review procedures for relating land
use planning to air quality management that have utility either in the
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planning agency or in the air pollution control agency. The National En-
vironmental Policy Act (NEPA) provides a potentially effective tool for
relating air quality management to land use planning, but experience to
date suggests that the potential has not been fully realized. Continuing
revisions to the guidelines promulgated under the Act by the Council on
Environmental Quality are making NEPA less of an ad hoc review mechanism
and more of a tool-encouraging consideration of the secondary impacts of
federal investments. The Office of Management and Budget's A-95 Circular,
which requires a review of projects using federal funds by state and metro-
politan "clearinghouses",has resulted in the establishment of metropolitan
planning agencies which can theoretically play a significant role in relat-
ing land use planning to air quality management. But since the primary
function of A-95 is to avoid duplication of federal investments and not to
promote comprehensive regional land use planning, the clearinghouses are,
with a very few exceptions, presently poorly equipped in terms of staff,
financial resources, and political power to make an effective contribution
to air quality management. Like the NEPA guidelines, the A-95 Circular
has recently been strengthened.
The permit system used by many air pollution control agencies to
control new sources of air pollution emissions has traditionally been
based on the application of "state of the art" emission controls to indi-
vidual sources ("point sources"). The aim has been to control industrial-
process and space-heating emissions to the extent that proven technology
is available. Increasingly, as air pollution control agencies have attempted
to reduce emissions from existing sources as part of their control strategies
to achieve the air quality standards, the permit system is being applied
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to all point sources in the agency's jurisdiction. The permit system
also has considerable potential as a land use control device, but is not
at present extensively applied for this purpose.
EPA's indirect source regulations are designed to cover indirect
sources of air pollution emissions. These are facilities that do not
emit significant amounts of pollutants but generate a considerable volume
of traffic. The best examples are regional shopping centers and sports
complexes. The states required to develop the necessary regulations, but at
the time of this writing the regulations have not been tested completely.
Chapter 5 deals with the utility of buffer zones as an air pollution
control technique,since one often sees general statements on their value
but can find little in-depth analysis. Buffer zones have a specific but
limited role in reducing the impact of air pollution emissions. Creating
green areas of this type appears to be a proper purpose for which public
funds may be used and is permissible, to some extent, under state and lo-
cal regulatory powers.
Chapter 6 concentrates on selected local controls and concludes that
performance standards in zoning ordinances are an important local regula-
tory control that can supplement direct control of pollution sources. How-
ever, performance standards were developed more to control incompatible
land uses than to control air pollution,but their usefulness as an air
pollution control device has yet to be demonstrated.
The potential application of procedures for spreading out or spacing
sources of air pollution in order to reduce localized concentrations is
also examined in Chapter 6, which uses the example of gasoline filling
stations. It is concluded that the zoning ordinance is poorly suited for
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this purpose and that the air pollution regulations based on health and
welfare considerations should be relied on. The effect of architectural
controls that are insensitive to air pollution considerations receives
attention and it is concluded that there are small but significant benefits
to be gained by revising building codes.
Chapter 7 is concerned with the methodology of estimating emissions
from land use categories. After a review and development of land use
based emission equations, the planning implications of moving from land
use categories to land use based emissions are discussed. Given the cur-
rent state of the art, the estimation of emissions from land use categories
will give only a rough approximation of what actually will be emitted into
the air. However, the process will permit the evaluation of alternative
land use plans in terms of air quality as well as the evaluation of the
localized impact of a particular site development on air quality.
Chapter 8 focuses on the dispersion of pollutants by meteorological
influences. After discussing the general structure of a commonly utilized
dispersion model, the potential errors from dispersion modeling are reviewed
and analyzed. In attempting to relate land use plans to air quality,it is
important to understand that significant errors can enter the analysis.
These errors can be minimized by a judicious use of simpler models and a
careful handling of data.
Chapter 9 concentrates on air quality management in California, where
specific procedures are being developed for relating land use planning to air
quality management at the state and local level which will have considerable
effect on how we treat the issue in the rest of the country. At-
tention is directed to the technique of "emission allocation", a first at-
tempt to make the land use planning process the basis for air quality
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management.
Chapter 10 reviews the recent history of the development of "non-
degradation" as a policy issue in air quality management. Since at the
time of this writing EPA had not promulgated final regulations on non-
degradation, our treatment is tentative. However, the major issues in a
policy of non-degradation are summarized.
Chapter 11 offers recommendations for both the land use planner and
the air pollution control official and raises a number of questions that
must be dealt with before land use control and planning and air quality
management can be effectively related.
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NOTES
1. For a discussion of recent trends in land use controls, see:
F. Bosselman and D. Callies, The Quiet Revolution in Land Use Controls
(1971); William Riley, The Use of Land: A Citizen's Policy Guide to
Urban Growth (1973).
2. A broader treatment of this is found in: G. Hagevik, The Rela-
tionship of Land Use and Transportation Planning to Air Quality Manage-
ment (1972).
3. 37 Fed. Reg. 10842 (1972). A "control strategy" is a combina-
tion of measures designed to achieve the aggregate reduction of emissions
necessary for the purposes of attainment and maintenance of a national
standard. EPA's regulations set forth procedures, i.e., proportional or
diffusion modeling, to be employed by the states in demonstrating that
their control strategies will be adequate for these purposes. Evaluation
of the control strategies generally included assessment of the accuracy
of the data relied upon by a state in demonstrating the adequacy of con-
trol strategies, the validity of any assumptions made by the state, and
the accuracy of the calculations employed in the modeling exercises.
In addition, a determination was made as to whether the control strategy
would be sufficiently comprehensive.
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CHAPTER TWO
THE POTENTIAL ROLE OF LAND USE CONTROLS
UNDER THE CLEAN AIR ACT OF 1970
Growing awareness of air pollution dangers has led to increasingly
comprehensive state and federal legislation directed at the air quality
problem. While legislative attention to air pollution has largely been
confined to the direct regulation of pollution sources, studies of air
quality control have long recognized that land use planning and control
9
is necessary to achieve and maintain clean air. Since 1970 the federal
Clean Air Act has authorized both land use and transportation controls
as part of the state plans for implementing federal air quality standards.
This chapter initiates a review of the role that land use controls
can play in achieving the air quality levels mandated by the federal sta-
tute, and considers the extent to which land use controls have been and
are likely to be used for this purpose. First we discuss the regulatory
system introduced by The Clean Air Act, directing special ittention to the
role of land use controls prescribed in that act. We then analyze ways
in which land use controls at the state and local level might be used as
an air pollution control strategy and discuss implementation of the federal
land use controls provision by the Environmental Protection Agency. The
present role of land use controls in a federal air pollution strategy is
contrasted with other enacted and pending federal statutes that require
national land use policy implementation at state and local levels. Finally,
we suggest a role for land use controls in regulating air pollution.
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THE LAND USE CONTROLS PROVISION
The 1970 Clean Air Act Amendments provide a combined federal-state
attack on the problem of air pollution. Both authority to set pollution
standards and enforcement responsibility had been delegated to the states
under earlier federal legislation, but difficulties of administration
and enforcement under this statute led to extensive amendments in 1970
which broadened the scope of the law and the regulatory authority of
the federal government. As a first step in the pollution abatement pro-
cedure contemplated by the 1970 amendments, the Environmental Protection
Agency (EPA), responsible for administering the federal air
pollution law, established primary and secondary national ambient air
quality standards for various air pollutants. These standards establish
air pollutant levels that must not be exceeded for longer than a specified
o
period of time. The statute authorizes two sets of complementary standards:
p'rimary standards are to reflect "an adequate margin of safety. . . requisite
to protect the public health ", secondary standards are more strict and are
designed to "protect the public welfare from any known or anticipated ad-
verse effects associated with the presence of such air pollutants in the
9
ambient air." The states are required to prepare plans for the implementa-
tion °f national primary and secondary air quality standards. These im-
plementation plans must in turn be approved or diseipproved and modified as
required by EPA. The statute requires that air pollution be attacked
within each state on a regional basis, so state plans must direct each local
air quality region to implement and enforce national primary and secondary
standards. State plans must provide for the achievement of national pri-
mary standards as soon as practicable, in any event within three years after
EPA approval of such plans, while national secondary standards must be
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12
achieved within a reasonable time.
In addition to national ambient air quality standards, the Act
provides for emission standards for designated pollutants emitted by new
sources. While national ambient air quality standards set limits on
the allowable average pollutant concentration in the atmosphere, new
source performance standards limit the amount of pollutant that any indi-
vidual new source (such as a new power plant or factory) nay emit. Am-
bient air quality is monitored by stations spaced throughout a region,
while new source standards are monitored at the site of each new source.
Each national ambient air quality standard thus measures the cumulative
effect of a pollutant emitted from all sources. Pollutants emitted both
by stationary sources, such as factories, and by mobile sources, such as
automobiles, will contribute to a violation of ambient air standards. New
source standards, on the other hand, apply only to new stationary sources.
This review of the standard-setting and implementation provisions
of the Clean Air Act of 1970 provides in outline form the statutory
context within which the land use controls provisions of the statutes
must be analyzed. The 1970 Amendments authorize land use controls at
several points. First, as enacted, the statute contains an explicit ref-
1 r
erence to land use. It requires state implementation plans to include:
emission limitations, schedules, and timetables for compliance with such
limitation, and such other measures as may be_ necessary to insure attain-
ment and maintenance of such primary or secondary standard, including,
but not limited to, land use and transportation controls. " This statu-
tory provision contains a mandate to utilize, without further specifica-
tion, any form of land use control that "may be necessary" to achieve
and maintain air quality standards.
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The provision in the Clean Air Act for regulation of stationary pol-
lution sources can also be construed as a land use control measure. The
Act calls for supervision of new stationary sources of pollution as one
of the techniques to assist in achieving ambient air quality standards.
State implementation plans must include a
procedure . . . for review, prior to construction or modification, of
the location of new sources . . . [of air pollution which] shall pro-
vide for adequate authority to prevent the construction or modifica-
tion of any new source to which a [federal] standard of performance
[for pollutant emissions] will apply at any location which the state
determines will prevent the attainment or maintenance . . . of a na-
tional ambient air quality primary or secondary standard ...
To the extent that this provision authorizes state review of the location
18
of stationary pollution sources, it sanctions land use regulation.
Thus the Clean Air Amendments include land use control measures at
several points. The statute contains a specific mandate to the states to
use land use control measures "where necessary" to achieve and maintain air
quality standards and also requires states to grant some state-wide, re-
gional, or local agency authority to prevent construction or modification
or any new source that would interfere with attainment or maintenance of
air quality standards.
The legislative history of the Act reveals that Congress approved land
use controls as a general method for achieving air quality standards. The
scope of potential regulation grew as the bill developed in Congress. The
19
House version made no provision for land use controls. The Senate added
a provision allowing control over the location of stationary pollution
sources, but it was merely permissive and designed only to prevent inter-
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ference with the attainment and maintenance of air quality standards.^
As discussed above, ^ the final version of the Act directed states to
review the location of new sources. In addition, the statute as enacted
contained a specific provision that went beyond preventing interference
and authorized land use control measures "where necessary" to implement
and maintain national standards. This progression suggests a much wider
application of land use control provisions than was originally intended.
Although this interpretation is not supported by any explicit legislative
history, it has been adopted by Congressional spokesmen who were close to
the drafting of the Act, 2 and by the EPA itself in its administration
of the statute. ^
While Congress apparently has approvad land use controls, there is
little in the hearings on the 1970 amendments to the Clean. Air Act,
in the debate recorded in the Congressional Record, or in later Con-
gressional hearings on the implementation of the amendments to indi-
cate how EPA and the states are to administer them. Additional language
in the Senate Committee Report does disclose that "land use policies must
be developed to prevent location of facilities which are not compatible
with implementation of national standards." This language, however, ap-
pears to reflect the earlier and narrower "interference" version of the land
use controls provision.
Other statements in Congressional debate were rhetorical or inconclu-
sive. Senator Spong, a member of the conference committee that reported
the final bill, stated that "implementation plans to meet the primary na-
tional air quality standards must include provision for land use and trans-
28
portation controls." Senator Muskie, Chairman of the Senate Subcommittee
on Air and Water Pollution, which was responsible for the Senate version
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of the Clean Air Act, believed that "implicit in the concept of [state]
implementation plans" is the requirement that "urban areas do something
about . . . the modification and change of housing patterns, employment
patterns and transportation patterns and transportation patterns general-
29
ly." The legislative history thus gives scant guidance to the states
in selecting specific land use control measures to implement their air
quality programs.
LAND USE CONTROLS IN STATE IMPLEMENTATION PLANS30
The lack of legislative history coupled with the superficial treat-
ment of land use in the language of the Act left to EPA the major task
of interpreting the land use control provisions. Since the statute places
major emphasis on direct emission restrictions, a determination needs to
be made whether land use controls are intended only as a supplement to
direct regulation when it is insufficient or as a major weapon that can
and should be utilized in place of a more direct emission control strategy.
Analysis of this question depends on further elaboration of Congressional
intention in adopting the land use controls provision contained in section
110 of the Act. But, as discussed above,-^ the legislative history re-
veals little more than a general endorsement of land use measures, so one
is left to speculation on this point. Given types of land use control
powers presently exercised by state and local governments, it is possible
to isolate three issues that must be resolved before we can define a pos-
sible land use control strategy within the Clean Air Act.
Direct Versus Indirect Land Use Controls
Does the federal statute limit land use measures to direct controls,
such as relocation or bans on construction of possible pollution sources?
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Or may indirect controls, such as regulation of density, be included as
well? Direct restrictions are clearly mandated by the Act at two points.
First, the statute explicitly provides for regulating construction of
stationary pollution sources as part of state air pollution abatement
TO
programs. Secondly, it could be argued that the land use controls
authorized for state implementation plans "as may be necessary""
should be likewise applied only to new pollution sources.
There is little difference between the types of land use controls
authorized by these two sections. Controls over location of emissions
from new sources are limited to the individual polluter. Thus the San
Francisco Bay Area Pollution Control District has experimented with a
direct ban on the construction of new filling stations, a source of hy-
drocarbon pollution. ^ Under the "as necessary" clause, states could
utilize more conventional land use measures such as zoning. For example,
a filling station construction ban or its equvalent could be legislated
through a revision of the local zoning ordinance. Preference for one
approach over the other may depend on the relative effectiveness of the
two measures. That a construction ban imposed by the pollution control
district can be made applicable throughout the region may be argument
enough for preferring this approach over the more localized zoning ordin-
ance approach. Even the gasoline station example, however, reveals that
any of the direct land use controls over potential polluters may restrict
economic opportunities within air quality control regions where the air
pollution program requires restriction on the entry of new sources to
achieve and maintain air quality. In these instances, local policy
makers may resist the application of direct land use controls.
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Changes made in the original language of the land use controls pro-
vision of the Clean Air Act indicate that more extensive controls over land
use were contemplated. These controls are indirect; they are not used
to restrict emissions or the location of pollution sources, but are applied
throughout the community to all land uses, with the more general objective
of improving air quality. Many indirect land use controls of this nature
may have limited immediate effect, but may restore the air quality over
a long period of time. For example, ordinances requiring setbacks from streets
and highways, minimum distances between residential and. other dwellings, and
the dedication and maintenance of open-space areas in new residential de-
velopments allegedly have an aggregate impact on air pollution by providing
•7O
open areas which can absorb atmospheric pollutants. The immediate effect
of any such controls in these situations may be quite small, but over a
longer period and on a larger scale many types of land use control will im-
prove air quality.
Residential zoning offers an example. Since the dispersal of air
pollutants is to some degree dependent on residential densities through-
out a metropolitan region, a local zoning ordinance in which density require-
ments reflect dispersal patterns, clearly may help achieve and maintain air
quality. Similarly, air quality can be improved by zoning restrictions on
the location of non-polluting uses that contribute indirectly to air pol-
lution problems. Typical examples include major sports complexes which
generate additional automobile traffic and thus cause an increase in motor
vehicle emissions. EPA has extended its authority over pre-construction
review of new stationary sources to include new developments which add to
air pollution problems by generating additional motor vehicle traffic.
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Comprehensive and Regional Planning
Indirect land use controls must be exercised with a regional con-
text in mind. First, the entire approach of the Clean Air Act is re-
gional: states are sub-divided into Air Quality Control Regions, and
state implementation plans must provide control strategies on a region
by region basis.^1 Secondly, since indirect land use controls have
limited immediate impact, they are effective only if practiced on a large
scale. Only through planning that encompasses entire metropolitan regions
can attention be given to a comprehensive land use control program which
would significantly improve the air.
Experience with comprehensive plans that consider air quality for
metropolitan regions is still quite limited, and there is presently no
consensus regarding the kind of metropolitan development pattern which
is best suited to maintaining acceptable levels of air quality. More-
over, the links between comprehensive planning and land use controls are
generally quite weak in most jurisdictions. There are few states in which
local zoning regulations must be based on a comprehensive plan. 3 Given
this situation, there is some question about the extent to which air qual-
ity planning can be translated directly into a land use control strategy.
But at the same time, air quality standards are uniformly applicable through-
out air quality regions; therefore some form of comprehensive regional
planning clearly is needed.
Governmental Entities
Comprehensive planning for land use control raises a third question:
which state, regional, and local governments are to be delegated authority
to administer those land use control provisions which are adopted as part
of state air quality implementation plans? To be effective, any land use
plan to reduce air pollution must have authority vested at a level higher
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than the local municipality. Any control over major land use developments
that are likely to generate pollutants or which are likely to have a major
effect on land use and transportation patterns will have to be exercised
at the regional level if not at the state level. Although local govern-
ments may take a parochial view of their land use control responsibility,
local zoning agencies may not have the expertise or the necessary informa-
tion to make judgments about land use measures related to region-wide pro-
grams.
The problem is complicated further because air pollution control
agencies ordinarily do not have the authority to adopt and enforce land
use measures, although it is possible for that power to be delegated
to them. Where land use controls are to be exercised by an air pollu-
tion control agency, however, an accommmodation will have to be developed
between that agency and local governments exercising zoning authority. It
is also possible to provide for supervening statewide control of land use,
such as that required by federal legislation dealing with management of
land uses in coastal zones. Prototypes of this kind of state manage-
ment have already been adopted in several jurisdictions. Matters are
further complicated because some air quality control regions contain por-
tions of more than one state. These issues are difficult to resolve, and
because they did not receive attention in the adoption of the Clean Air
48
Act, the statute itself does not assist in resolving them.
Thus at least three problems are raised by the land use controls pro-
vision of the Clean Air Act. First, a choice must be made among competing
alternatives--to apply land use controls directly to sources of pollution,
to apply land use controls indirectly to regulate indirect sources, or to
use a combination of direct and indirect measures.
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Next, given the regional focus of air quality control strategies, any ef-
fective use of land use regulations in the context of air pollution con-
trol will have to be based on planning policies which consider regional
growth and development patterns. As we have noted, regional planning that
takes air pollution factors into account is still in an early and devel-
opment stage. The importance of regional planning as the basis for land
use regulation raises two questions: which governmental level will exer-
cise the authority; and how will these powers be apportioned between the
air quality control board and conventional zoning agencies?
LAND USE CONTROLS AND THE CLEAN AIR ACT
The Duty Under the Act to Impose Land Use Controls
Primary Standards -- The federal Clean Air Act requires that primary
ambient air quality standards be met "as expeditiously as practicable,"
but not later than three years from the date of approval of a state's im-
plementation plan. For most states this date is 1975. Secondary air
quality standards must be met within a "reasonable time." Because
land use controls may be part of a state's implementation plan and because
the state plan must provide air pollution control measures that will achieve
required air quality levels within the statutory periods, it could be argued
that states may adopt only land use control measures that meet the statutory
timetable. Most indirect land use and planning controls require a long
period of time before their effect on the pollution source base is notice-
able. On the other hand, direct controls over the location of emissions
sources can usually be imposed more quickly and may lead to more dramatic
and immediate reductions in air pollution. Thus, in meeting primary stan-
dards , the statute arguably may not require the exercise of other than short
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range and thus direct land use controls, such as those affecting the loca-
tion of pollution sources. This reasoning finds support in the statutory
language that requires primary standards to be met as "expeditiously as
practicable" and at most by the three-year deadline. It may be that the
federal Clean Air Act will have to be interpreted to limit land use con-
trols to those relevant to the short time-span the statute allows for
compliance with the primary standards mandate.
States may attempt to alleviate the burden of these time constraints
in the implementation of national primary standards by requesting an ex-
tension of the three-year limit. Under the federal statute, the Admin-
istrator of EPA may grant a two-year extension to meet primary standards
but only if the state has "considered and applied as part of its plan rea-
sonably available alternative means of attaining such primary standards"
other than emission controls. Presumably, the reference to "alternative
means" includes land use controls. But, as indicated earlier, strict con-
trol over pollution sources to achieve air quality standards may inhibit
growth in all or part of a particular air quality region. Therefore,
state governments are likely to be under intense pressure to avoid such
controls. The question, then, is whether a state can refuse to consider
land use controls as a "reasonably available" strategy, on the ground
that they would have adverse socio-economic effects.
There is very little in the legislation that can help to answer this
question. Except for a reference in the provision authorizing pre-construc-
tion review of new sources, economic balancing language is conspicuously
absent from the Act.5 However, the statutory language which requires that
air quality standards to be met only as expeditiously as "practicable"
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may imply some limitation on the exercise of land use controls that in-
hibit economic growth. The difficulty with any interpretation of this
statutory language is that social and economic issues in the enforcement
of the Clean Air Act received very little explicit consideration in the
legislative development of the Act. The Senate Report on the 1970 amend-
ments did discuss the technical feasibility claim as an excuse for delay
in attaining air quality standards, and concluded: "The health of people
is more important than the question of whether the early achievement of
ambient air quality standards is technically feasible."-'" Yet here, as
elsewhere, the limited Congressional consideration of social and econ-
omic issues appears more directed toward the economic costs of compliance
with ambient air quality standards than toward the economic and social
dislocations that would result from the exercise of land use controls.
This omission is not surprising, since the scope of the land use controls
provision broadened greatly during consideration of the 1970 amendments
and Congressional attention focused largely on the role of emission lim-
itations. As a consequence, the extent to which EPA and the states are
entitled to consider socio-economic consequences in developing land use
controls as part of air quality implementation plans is not clear. The
limited discussion of social and economic factors in the legislative his-
tory, however, implies that states can take advantage of section 110 ex-
tension provisions to utilize long range land use controls, but states
may not use the prospect of adverse socio-economic impact to claim that
land use controls are not "reasonably available",5'
Secondary Standards -- Now consider the extent to which the Act re-
quires land use controls to achieve secondary air quality standards. Sec-
ondary standards are not developed merely to serve as an extra margin of
2-13
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safety to protect the public health. They are designed to "protect the
public welfare from any known or anticipated adverse effects associated
with the presence of such air pollutants in the ambient air."*'** The 1970
law as finally passed contained no specific deadline for the attainment of
secondary standards, but only indicated that such standards must be at-
tained within a "reasonable time".
Because secondary standards are more stringent than primary standards,
they require a greater total reduction in emissions and correspondingly
tougher controls which have greater socio-economic impact. If a state
were to rely at all on land use controls to attain secondary standards,
such controls would have to cover a wider range than those adopted to at-
tain primary standards. A state might have to consider the adoption of
land use controls strictly regulating indirect as well as direct sources
of pollution. Such regulation would be easier in the case of secondary
standards than in that of primary ones, since secondary standards need
only be achieved within a reasonable time rather than within three years.
Thus a state would have the freedom to exercise land use controls that are
long range in scope and to contemplate more fundamental changes in urban
development patterns.
The "reasonable time" requirement also suggests that socio-economic
factors, whether or not they can be considered in programs for attaining
primary standards, might be more relevant in a program to achieve secon-
dary standards. Nevertheless, even if states may balance socio-economic
costs against environmental gains in achieving and maintaining secondary
standards, the extra benefit to be gained in meeting secondary standards
seems clear. This benefit suggests that the need to meet these standards
may at some point overcome substantial socio-economic considerations.
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For example, if it could be shown that direct control of emissions had
been applied to the fullest extent possible, and yet secondary standards
had not been achieved in an air quality control region, land use controls
might be treated as necessary despite adverse socio-economic effects.
Maintenance of Air Quality --As discussed above, the time limits
set for achieving primary standards restrict state inplementation plans
to direct short-range land use measures. However, the Clean Air Act also
requires state implementation plans to contain measures mandating the
maintenance of air quality levels once they are achieved. For this task,
indirect land use controls may be useful. For example, if it could be
shown for an air quality control region that direct reduction of pollutant
emissions had been utilized to the fullest extent possible in meeting
primary standards, land use controls might have to be adopted to maintain
the air quality levels thus achieved in order to meet the "maintenance"
mandate of the federal statute. This interpretation would create roles
for both short- and long-term land use control measures in the implementation
of primary standards.
As with primary standards, there is a statutory duty to "maintain"
secondary standards once they are achieved. Indirect controls would be
particularly well adapted to this task. Since secondary standards are
more stringent than primary standards, it may turn out that secondary
standards can be maintained only through a comprehensive program of such
indirect long-range land use controls. In addition, states would have the
time necessary to carefully set up and implement such indirect, long-range
controls because of the longer time allowed for achieving secondary stan-
dards.
A related issue concerns regions where air quality already meets or
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or exceeds the level required by EPA and the Clean Air Act. The recent
case of Sierra Club v. Ruckelshaus^2 held that in such regions, state
implementation plans must provide means to ensure that the existing air
quality will not deteriorate significantly. Both direct and indirect land
use controls are appropriate tools to ensure such non-degradation.
This review of the duty to impose land use controls reveals that
unclear statutory language is but one barrier to construing the nature
of the land use controls mandated by the Clean Air Act. The short time
period specified for achieving primary standards suggests that only direct
short-range land use controls such as those regulating the location of
polluters may be feasible means for achieving those standards. Long-
range controls based on comprehensive planning may be more relevant to the
attainment of secondary standards, which do not have such an urgent com-
pliance schedule, or to the maintenance of both primary and secondary
standards once they have been attained. Thus far we have not explicitly
discussed the problems posed by the choice of governmental agency to imple-
ment whatever land use controls are adopted. Clearly, however, the more
EPA relies on long-range controls based on wide-scale comprehensive plan-
ning, the more it will have to rely on governmental agencies whose jur-
isdiction is statewide or regional and which can respond to the demands of
region-wide planning. Broad jurisdiction is especially important if the
socio-economic impact of land use controls must be considered as part of
any strategy adopted.
EPA Implementation
To understand the role EPA has assigned to land use controls, we must
examine the regulations issued by the EPA under the Clean Air Act. Anal-
ysis of these regulations will also contribute to an understanding of how
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land use controls might fit into a state air quality control strategy.
It should be noted that major changes in the content of EPA regulations for
state implementation plans were made between the original publication of
these regulations and their final adoption. These changes, which many
critics of EPA claim have weakened the implementation of the Clean Air
Act, have had an indirect but important impact on the exercise of land use
controls in air quality programs.
Certain basic land use guidelines are included in the regulations,
such as a general requirement that state plans contain such "other measures
necessary for attainment and maintenance of national standards," and
a provision requiring that, in regions where air quality does not meet na-
tional standards, the control strategy must provide for the "degree of
emission reduction necessary to offset emission increases . . . reasonably
expected ... to result from projected growth of population, industrial
activity, motor vehicle traffic, or other factors.""6
It can be argued that EPA regulations expanded state authority to
utilize land use strategies in their implementation plans. While there
is no explicit statutory basis for the concept, the regulations introduce
what is referred to as a "control strategy" for the abatement of air pol-
lution. A "control strategy" is defined as:
a combination of measures designated to achieve the aggregate re-
duction of emissions necessary for attainment and maintenance of a
national standard, including but not limited to, measures such as:
. . . any land use or transportation control measures not specifical-
ly delineated herein.
In short, the "control strategy" is the sum total of all of the measures
the state adopts to achieve the required air quality standards. ° This
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strategy, it may be noted, includes measures not explicitly authorized by
the statute as appropriate for inclusion in a state implementation plan.
For example, a control strategy may include "federal or state emission
charges or taxes or other economic incentives or disincentives not speci-
fically authorized by the Act." Thus the regulations ensure that indirect
longer range land use control measures may be included in state implementa-
tion plans even though they are not explicitly permitted under the Act.
Recognition of Socio-Economic Factors --As stated in a preamble there-
to, the final regulations of August 14, 1971 changed many of the earlier
proposed regulations which had been issued on April 7th. The most con-
troversial change, and the one most likely to affect the exercise of land
use controls to achieve air quality standards, was the inclusion of several
provisions allowing socio-economic factors to influence policy decisions in
the preparation of state plans. These regulations stated in part:
Nothing in this part shall be construed in any manner ....
(b) To encourage a State to adopt any particular control
strategy without taking into consideration the cost-effec-
tiveness of such control strategy in relation to that of
alternative control strategies. . . .
(d) To encourage a State to prepare, adopt, or submit a
plan without taking into consideration the social and econ-
omic impact of the control strategy set forth in such a
plan, including, but not limited to, impact on availability
of fuels, energy, transportation, and employment.
In developing their plans, states are also "encouraged to identify alter-
native control strategies, as well as the costs and benefits of each such
2-18
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72
alternative, for attainment and maintenance of the national standards."
Do these provisions mean only that states need give some attention to
socio-economic effects when developing the land use control element of their
implementation plans? Or do they mean that if socio-economic disruption
can or may occur through the exercise of land use controls the states can
be excused from including these controls in their implementation plans?
The most pressing problem posed by these questions is the extent to
which meeting air quality standards in any region will require the exclu-
sion from that region of industry that may stimulate economic growth.
Where socio-economic considerations must be weighed in developing an im-
plementation plan, construction of new but heavily polluting industry may
be permitted on the ground that the region's growth otherwise might be
curtailed. In this event, meeting primary standards within the statutory
three-year period will have to be achieved by increased reliance on the
use of source controls on emissions. This strategy has less effect on
economic growth, but it places a greater share of the cost of abatement
on existing as compared with new industries within an air quality control
region,
Extension of Deadlines -- Assuming that immediate and direct land use
controls prohibiting the location of new pollution sources would create
socio-economic disruption, EPA may determine that two-year ex-
tensions in meeting the deadlines for primary standards are
neqessary. As the basis for such an extension, EPA regulations require
only a showing that the "necessary technology or alternatives" will not
be available within the three-year period. The state must also make a
"clear identification of any alternative means of attainment of such pri-
mary standard which were considered and rejected." Presumably, rejec-
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tion of land use controls because of adverse socio-economic effects would
qualify under this language.
Study of the May 31, 1972, EPA regulations approving and disapproving
various portions of state plans indicates that this policy may have been
followed. Few state plans contained land use controls, and those that
75
did provided only for minor measures. Yet EPA granted numerous exten-
sions of the attainment date for vaious pollutants without requiring a
demonstration that land use controls were not reasonably available or
would not aid in the attainment of air quality levels by the three-year
limit. Where EPA disallowed requests for extensions, the agency found
that the plan in question indicated the standard would be attained within
the three-year limit. No state was asked whether it could achieve pri-
mary standards before the deadline by instituting land use controls.
In this connection, it is interesting to observe that while some states
did indicate that they would attain primary standards within the time lim-
it, when EPA had to specify an attainment date for those plans which had
failed to do so or which had specified unreasonable dates, the agency
never set a date less than three years away.
Similarly, EPA avoided mentioning land use controls when dealing
with state plans to implement secondary standards. Its regulations state
that a "reasonable time" to attain secondary standards is three years
only if the "necessary degree of emission reductions" can be achieved
through "the application of reasonably available control technology."'"
If the necessary reduction cannot be achieved through available control
technology, a "reasonable time shall depend on ... the social, economic
and technological problems involved in carrying out [an adequate] control
strategy." EPA routinely granted requests for 18-month extensions
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authorized by the Act for delaying submission of a secondary standards
plan. The agency approved dates as far away as July 1978 with no mention
of the possibility that land use controls might shorten the time required
on
to attain secondary standards.
In general, EPA made no comment about the widespread failure of state
plans even.to consider the exercise of land use controls. One minor land
use measure was required by EPA's implementation plan guidelines --a pro-
jection of growth and how this projection would affect the attainment and
81
maintenance of air quality standards. However, such measures were not
included in many state plans. EPA excused even this failure on the ground
R?
that the expertise necessary to make such projections was lacking. When
EPA's approval of state implementation plans was remanded by a federal
court of appeals because inadequate attention had been given to maintenance
OT
of air quality standards, EPA amended its implementation plan regulations
to require state identification of those areas where projected growth
84
could jeopardize maintenance of air quality standards. These new re-
quirements and statutory provisions are consistent with the earlier ob-
servation that indirect land use controls based on long-range comprehensive
planning are more properly exercised in carrying out the duty to maintain
air quality once national standards have been attained. EPA's actions also
suggest that, at least with respect to long-range planning for air quality
control, socio-economic factors may have to be set aside if the maintenance
of standards requires constraints on growth and population.
Weakening the Act -- Many critics of EPA's administration of the Clean
Air Act have objected even more fundamentally to EPA's unilateral intro-
duction of socio-economic factors into air pollution control strategies,
or
arguing that such regulations weaken the Act. A full airing of the con-
2-21
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troversy over the introduction of socio-economic considerations in the
preparation of state implementation plans can be found in the Oversight
Hearings held by the Senate Subcommittee on Air and Water Pollution on
the Implementation of the Clean Air Amendments of 1970. Senator Eagleton,
who chaired most of the hearings and who had been active in the drafting
of the Clean Air Act Amendments of 1970, maintained that, Congress never
intended to have socio-economic factors included in state implementation
plans. He and certain witnesses charged that EPA had been pressured by the
White House Office of Management and Budget (OMB) into withdrawing its
own final guidelines and substituting the set which became the August 14
regulations, with the significant addition of the socio-economic pro-
visions. These witnesses asserted that CMB's purpose was to give indus-
try an economic excuse to delay full compliance with air quality standards
--an excuse which the Senate-House conference committee intended to de-
lete from the Act by striking out all references to socio-economic con-
siderations in the section in the final bill on state implementation
plans. EPA's answer at the hearings was that while economic factors
could not be weighed in setting primary standards, once they were set,
EPA was free to encourage states to develop a control strategy that would
reflect the economically least disruptive was of achieving those stan-
A A 87
dards.
This review of EPA's implementation of the Land use controls provi-
sion suggests that the agency has just begun to see the many difficult
problems involved in an interpretation of this section of the law. Strangely
enough, EPA's attention to socio-economic needs as a factor in developing
land use as well as other elements of the air pollution control strategy
contrasts with the usual failure to explicitly consider these needs in
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in the more traditional land use regulation setting. Nevertheless,
since traditional air pollution controls operate directly on industries
and other employers essential to the economic growth of a region, EPA
will be forced to consider this issue more explicitly than it has so far.
Its decision to permit balancing of social and economic costs against
achievement of air quality standards may have been justified by ambigui-
ties in the legislative history of the Clean Air Act. But whether EPA's
interpretation of this history is correct or not is less important than
the fact that any control strategy, whether direct or indirect, will have
an impact on regional growth and development. Therefore, we should look
next at that provision of federal law which, apart from the land use control
provision, requires direct controls over stationary source location. The
implementation of stationary source controls, more than any other, is likely
to produce socio-economic impacts on growth and development.
CONTROLS OVER STATIONARY POLLUTION SOURCES
As noted above, at least for primary standards, direct controls
over land use are more likely to fit the scheme of the Clean Air Act be-
cause of their immediate impact. Local governments are only beginning
to consider the relationships between such long-range indirect controls
and air pollution; EPA itself has refrained from insisting on indirect
controls and has yet to define its own policy. Thus in the near future
much attention will focus on the direct land use controls clearly author-
ized by the Act -- pre-construction review of new sources of pollution.
Under this section of the Clean Air Act the Administrator must
publish a list of categories of stationary sources that "contribute sig-
nificantly to air pollution which causes or contributes to the endanger-
~B9
ment of public health or welfare." After listing a category, the Mmin-
2-23
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istrator must propose and ultimately publish federal standards of per-
90
formance for that category of sources. A standard of performance is
defined under section 111(a)(1) as a
standard for emissions of air pollutants which reflects the degree
of emission limitation achievable through the application of the
best system of emission reduction which (taking into account the
cost of achieving such reduction) the Administrator determines has
91
been adequately demonstrated.
The land use provision relating to these new sources appears in
section 110, which deals with state implementation plans. Section 110
(a)(2)(D) requires a "procedure . . . for review (prior to construction
or modification) of the location of new sources to which a standard of
performance [under section 111] will apply." This procedure must "pro-
vide for adequate authority to prevent the construction or modification
of any [such] new source ... at any location which . . . will prevent
the attainment or maintenance . . . of a national ambient air quality pri-
07
mary or secondary standard."
Federal Pre-emption
The authors of the Act believed that the new source provision granted
the states great power to control major sources of pollution; the Senate
Report lists nineteen categories of sources that could be regulated under
93
this section. Congress asserted federal control over these sources
because it feared that major industries would exert "economic blackmail"
on the states by threatening to leave any state that tried to impose strict
emission controls in an effort to meet air quality standards. By imposing
uniform emission controls on major new sources at the federal level,
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Congress felt that these industries would lose that economic weapon. But
by authorizing direct federal governance of these sources that previously
had been subject only to state pollution control, the Clean Air Act raises
the question whether regulation of stationary sources is now to be based
solely on considerations of health and welfare or on land use factors as
well.
One can resolve this question by comparing the original Senate ver-
sion of section 111 with the section as finally enacted. The original
Senate bill did authorize a land use measure at the federal level, re-
quiring a mandatory EPA certification procedure for new sources to deter-
mine whether each new source complied with section 111 performance stan-
dards. It ordered the federal agency to review the proposed location of
each new source to ensure that its construction would not cause a violation
94
of air quality standards.
Did the imposition in the Senate bill of federal performance stan-
dards and a federal pre-construction review process mean that the federal
government had fully pre-empted regulation of future major stationary
sources of pollution? If so, Congress would have utilized its commerce
power to override the police power under which states traditionally regulate
industries that contribute to air pollution. It is worth noting that
the Senate provision dealing with federal pre-construction review was ex-
pressly concerned only with preventing interference with national air
95
quality standards. Thus we are left with the following problem: under
the Senate bill, could a state have imposed upon a Section 111 new source
a land use measure not required by the federal government in an attempt
to enforce ambient air quality standards more stringent than federal standards.
More important, could a state have achieved national air quality standards
2-25
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by imposing land use measures on proposed new sources covered by Section
111 that already met federal new source performance standards? Or could
affected industries have claimed that the federal government had fully
pre-empted the area of new source regulation, so that if a new source
complied with federal guidelines under Section 111 the state could attain
its air quality standards only by restricting those older sources left
to its control?
In the Senate hearings on air and water pollution, Senator Muskie
questioned Dr. John Middleton, former EPA Deputy Assistant Administrator
for Air Programs, as to whether the states would still be able to exclude
these sources for health reasons if they so desired. Middleton replied
that if the proposed source would have a detrimental impact on health,
construction could be prohibited whether or not it met federal performance
standards, and that the state would always have the power to exclude a
new source under an applicable land use plan. This response does not
clarify the problem. If a proposed source did pose a health threat, it
automatically would not meet federal performance standards, since a pro-
posed source can pass the required pre-construction review only if it
does not prevent attainment or maintenance of national standards, which
are designed to protect the public health and welfare. Furthermore,
if states could not justify the imposition of land use measures on new
sources because of federal pre-emption in regulating new sources to pro-
tect the public health, attempts to assert land use controls by means
of state powers would raise serious legal problems.
In comparing the Senate bill with the law finally enacted, it seems
clear that Congress did not intend the federal government to pre-empt
state control over the location of new stationary pollution sources.
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First, the original Senate bill allowed the EPA Administrator to achieve
the"greatest degree of emission control" possible through the use of the
"latest available control technology, processes, operating methods, or
QO
other alternatives,"y° thus apparently allowing land use control measures.
Presumably then under the original bill, the Administrator could both set
emission standards for new sources, and, if necessary, limit or prohibit
the entrance of certain industries in a given region. But the final sta-
tutory provision only authorizes the Administrator to set emission stan-
dards for new sources, thus eliminating federal control over new source
location. Consistent with Congressional intent, regulations issued by
EPA to implement Section 111 performance standards do not permit discre-
tion at the federal level to impose land use controls on new sources
99
but only prescribe emission standards and monitoring and testing procedures.
Pre-construction Review
In addition to limiting the federal role to setting onission standards,
the bill as finally enacted shifted the pre-construction review process
entirely to the states. Section 110 requires state implementation plans
to provide for mandatory pre-construction review of the location of new
stationary pollution sources or their modification, with authority to
prevent construction or modification "at any location which . . . will
prevent the attainment or maintenance . . . of a national ambient air
quality . . . standard." As this process at the state level is intended
to protect air quality standards, and not just to insure that federal new
source performance standards are recognized at the construction planning
stage, land use considerations presumably can form a part of the required
review. Thus the states could use this review process to implement land
use decisions about the location of stationary pollution sources so long
2-27
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as those decisions were related to the state's pollution control strategy.
One difficulty with this interpretation is that location controls over
stationary sources are only one of several options open to a state seeking
to achieve or maintain required air quality levels. An industry faced
with a ban on new costruction because it would violate air quality standards
might thus argue that the state should adopt alternative methods for achie-
ving or maintaining air quality so that the construction ban could be
lifted. For example, more stringent air pollution measures could be im-
posed in other parts of the air quality region, either through direct per-
formance controls on emissions or through limits on the construction or
modification of stationary sources elsewhere.
EPA's Interpretation -- EPA regulations designed to implement the
section 110 requirement that states have a pre-construction process may
provide the states with an answer to this kind of objection. Procedures
for state review are required by regulation to include "means of disapproving
such construction or modification if_ it_ will result in a_ violation of ap-
licable portions of the control strategy or will interfere with attainment
or maintenance of a national standard."103 The importance of this directive
lies in the reference to the state's control strategy. As we have indica-
ted, control strategies consist of all of the measures that the state has
adopted to implement its air quality plan, including land use controls.
Although land use controls are authorized as a means by which the state
can achieve national air quality standards, there is no requirement that
any particular land use control be justified by the need to meet a national
standard. Therefore, it would appear that state pre-construction review,
including land use controls , may be imposed on new stationary sources
even where national air quality standards are not threatened, provided
2-28
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this review is intended to implement some other aspect of the control
strategy. For example, if the land use controls contemplated by an im-
plementation plan required a limitation on new industry in a region to
provide a margin of safety in maintaining air quality standards once achieved,
pre-construction review of new sources could be utilized to carry out this
maintenance objective whether or_ not the construction of_ any particular new
source would lead to^ a_ violation of_ a_ national standard. Thus if a state
control strategy dictates that no construction or modification may take
place at certain locations whether or not the proposed construction would
violate federal ambient air quality standards, the state must acquire the
authority to insist that its control strategy be honored. The state can
thus avoid the difficult problem of defending its ban on the ground that
a particular construction or modification would lead to a violation of an
air quality standard.
EPA regulations, subsequently revised, concerning the scope of this
pre-construction review procedure were nevertheless contradictory. Section
51.11 (a) (4) implied that pre-construction review is limited to achieving
national standards. It required states to have the legal authority to "pre-
vent construction, modification, or operation of any stationary source at
any location where emissions from such source will prevent the attainment
or maintenance of_ a_ national standard." Two other regulations, however, im-
ply a broader scope. Section 51.18(a) describes such a provision in the
state plan as
legally enforceable procedures that will be used to implement the
authority described in Section 51.11 (a)(4), which procedures shall
be adequate to enable the State to determine whether construction or
modification of stationary sources will result in violations of
2-29
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the control strategy or will interfere with attainment or mainten-
ance of a national standard.
(Emphasis added)
Section S1.18(c) states that "such procedures shall also include means
of disapproving such construction or modification if it will result in
violation of applicable portions of the control strategy or will inter-
fere with attainment or maintenance of a national standard." These
sections differ in that the first restricts the required authority to
the power to prevent construction or modification at a particular loca-
tion if air quality standards are threatened, while the latter two do
not mention location but are only concerned with interference with the na-
tional standards or the applicable control strategy.
The Need for Local Authority -- EPA has been fairly consistent in
disapproving some state new source review procedures because they failed to
provide adequate authority as required by the Latter two regulations.
We might infer from these disapprovals that EPA requires each state to
acquire the authority to implement any portion of its control strategy,
including land use controls, and that state review of new source locations
is not limited to instances in which national standards would be violated.
However, the power to prevent construction that would interfere with rele-
vant parts of the control strategy is not necessarily a land use power.
If the portion of a state implementation plan applicable to industry con-
sists entirely of emission limits and design requirements, the power to
prevent construction vanishes once these requirements are met, since land
use controls are not part of the control strategy. If national air qual-
ity standards are directly threatened, the regulations empower states to
prevent construction whether or not their control strategies specifically
2-30
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authorize land use restrictions. However, it is unclear how this power
is to be exercised. Perhaps it believes that the states will make cal-
culations for each proposed source or modification to determine whether
the projected emissions from that source will violate air quality stan-
dards for that region, but this expectation is not spelled out in any of
the regulations. Furthermore, projected emission levels are tentative
at best and EPA regulations defer performance tests on stationary sources
until after construction is completed.
Another EPA omission reduces the possibility that state pre-construc-
tion review procedure provides land use control authority. EPA nowhere
requires that even partial responsibility for pre-construction review be
given to the state or local bodies traditionally responsible for land use
decisions, nor does it require such bodies to delegate part of their land
use powers to the responsible air pollution control agency. State and lo-
cal air pollution agencies usually are not authorized to exercise land
use control powers, and their strategies historically were limited to re-
quiring technological improvements. Consequently, pre-construction
review procedures used by these agencies have been limited i a trio past to
assuring that these technical requirements are met before permission to
construct or modify is granted. EPA regulations have recognized that im-
plementing air quality standards may require authority beyond that tradi-
tionally found in air pollution control agencies; they have stated that
responsibility for implementing a part of the plan can be delegated to
another state or local agency provided it has the necessary legal auth-
ority to implement that part. " However,EPA regulations approving or
disapproving state plans make no comment on whether the pre-construction
review procedure has been vested in an agency capable of exercising land
2-31
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use powers.
The regulations promulgated by the EPA Administrator in accordance
with his statutory duty to propose federal regulations for inadequate
state plans do not shed much additional light on the required scope of
the pre-construction review procedure. ^ The new source review provi-
sions which the Administrator proposed for those "states whose control
of new stationary sources was found inadequate give him authority to grant
or deny permission for construction or modification. However, the regu-
lations do not indicate what part land use considerations will play in
the Administrator's determination. The applicant must demonstrate to the
Administrator's satisfaction that the proposed source "will operate with-
out causing a violation of any applicable local, State, or Federal regu-
lation which is part of the applicable [implementation] plan" and "will
not prevent or interfere with attainment or maintenance of any national
•I -I O
standard." x There is no indication of what the Administrator would
consider an adequate showing.
Indirect Sources -- Thus the pre-construction review procedure
required by the Clean Air Act and outlined by EPA regulations is not
necessarily a land use measure. Yet according to the preamble to the May
31st regulations approving or disapproving state plans, EPA is relying
upon it exclusively --at least for the moment --to maintain air quality
standards in those states whose plans envision just meeting the standards.
To implement this policy, EPA has now substantially extended its control
over stationary sources by including so-called "indirect" sources within
its pre-construction review procedures. Requirements for state im-
plementation plans now include commands to:
Prevent construction, modification, or operation of a facility,
2-32
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building, structure, or combination thereof, which directly or
indirectly results or may result in emissions of any air pollutant
at any location which will prevent the attainment or maintenance of
a national standard.
While no definition of an indirect source is given, it is the intent of
the regulations to reach "major highways and airports, large regional
shopping centers, major municipal sports complexes or stadiums" and
similar uses. These uses contribute indirectly to air pollution by gen-
erating large amounts of motor vehicle traffic emittina vehicle-related
pollutants. EPA has therefore asserted jurisdiction over decisions
about their location in order that the decisions take adequate account
of the impact of such uses on potential increases in air pollution levels.
Several problems are presented by EPA's entry into indirect source
regulation, most of which arise because the agency, for the first time, has
asserted jurisdiction over land use activities that do not in themselves
aggravate air pollution problems. These uses have not previously been
subject to regulation by air pollution control agencies; decisions over
their location and design formerly have been left entirely to traditional
land use agencies. Moreover, the uses specified for review as indirect
sources are significant generators of related land use activities and have
received very close attention in most land use programs. Asserting juris-
diction over indirect sources in the air quality program thus will possibly
conflict with the exercise of land use controls over these sources by
traditional agencies. The problem is further complicated because the stra-
tegic character of these sources as land use generators has led to related
federal legislation which requires land use controls over these very same
uses at the state level. Since the state agencies that have been selec-
2-33
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ted to implement federally required land use restrictions are not air pol-
lution control agencies, additional problems of coordination will develop.
In the earlier discussion of the potential role of land use controls
in air quality programs, we noted the importance of comprehensive planning
in the utilization of land use measures. Assertion of control over stra-
tegic indirect sources by EPA and state air pollution control agencies
will provide the badly needed regional perspective on decisions about the
location of these sources. Yet the air pollution agencies do not have
the necessary expertise to provide the planning framework within which de-
cisions about indirect source locations must be made. This problem is
only partly alleviated by a provision in EPA's indirect source regulations
that permits the delegation of authority over indirect source review to a
-1 TO
local agency other than the air pollution control agency. The difficulty
is that responsibility for planning and land use control in metropolitan
areas is severely fragmented, and there are no agencies at the regional level
which have the substantive authority to exercise definitive land use control
powers.
On balance, these considerations suggest that EPA possibly might have
Jeleqated control over indirect sources to the traditional
land use authorities. It could then have exercised its powers under the
Clean Air Act to require an additional clearance from air pollution control
agencies on the air quality effects of decisions about indirect sources.
But this approach would force major changes in the legal structure of air
pollution and land use controls at the state level, a problem complicated
by the enactment of federal legislation requiring the assumption of land use
control powers by state land use agencies. In addition, the Clean Air Act's
single-minded concentration on air pollution abatement and the rigid1 dead-
2-34
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lines built into that Act foreclose the development of interrelated stra-
tegies that can consider the objectives of both land use and air pollution
legislation. These problems are discussed in more detail in the text that
follows.119
Ambient Air Quality Standards and Federal Performance Standards
A final complexity in the control of stationary sources arises
because the Clean Air Act does not require national ambient air quality
standards for every pollutant emitted by a source subject to federal per-
formance standards. Therefore, where federal performance standards
have been set for particular pollutants for which no national ambient
air quality standards have been prescribed it is unclear what authority
a state has under the Act over a stationary source of such pollutants in
its pre-construction review process. Since the purpose of state pre-
construction review, according to .the regulations, is to protect ambient
air quality standards or a control strategy designed to implement those
standards, a state logically has no statutory authority under the Clean
Air Act to review a proposed source that would emit a pollutant for which
no air quality standard has been set.
This gap in the controls may have been remedied, however. The sta-
tute, as well as EPA regulations establishing performance standards for
stationary sources, defines a stationary source as "any building, structure,
facility, or installation which emits or may emit any air pollutant."121
In addition, EPA guidelines for implementation plans do not limit the pre-
construction review process to stationary sources covered by section 111,
but anticipate that the construction or modification "of any stationary
122
source" may be reviewed.
When no air quality standard has been set, however, and when the new
2-35
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stationary source can show that it will comply with emission performance
standards, the legal basis for the state's control over the new stationary
source must be carefully examined. In the absence of health reasons for
disapproving the location of the new source, the state (or local agency)
will have to rely on other constitutionally acceptable reasons for dis-
approving the construction of the new source. These may be lacking if the
new stationary source does not otherwise violate applicable state or local
regulations and meets federal performance standards. For example, if no
applicable federal air quality standard has been adopted, it may be dif-
ficult to preclude construction of a new stationary source in a substan-
tially developed heavy industry zone as long as the new source meets per-
formance standards. On the other hand, the state or local agency might
be able to demonstrate, even in the absence of an air quality standard,
that the quality of the air will not meet the required levels in the im-
mediate area where the proposed new source is to be built. In that event,
there would be an adequate health reason for disapproving the new construc-
tion even though national ambient air quality standards have not been es-
tablished. The availability of air quality standards for most pollutants
should assist states in finding such a justification, even though not
-1 n T
all of these standards have been officially adopted by EPA.
IMPACT OF RELATED FEDERAL LAND USE CONTROL AND ENVIRONMENTAL LEGISLATION
A consideration of the role of land use controls in the achievement
and maintenance of air quality levels also requires some examination of
related federal legislation, enacted and pending, that will have a bearing
on the air quality problem. One such law, enacted by Congress in 1969
as the National Environmental Policy Act [NEPA], requires environmental
impact statements to be filed by federal agencies responsible for "major
2-36
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Federal actions significantly affecting the quality of the human envi-
125
ronment." While the environmental impacts listed in the federal law
do not explicitly include air quality, the effect of federal and federal-
ly-funded facilities such as highways on air pollution levels has def-
initely been a factor that agencies have been forced to consider in the
environmental review process.
There are at least two difficulties, however, in relating the re-
quirement for an environmental impact statement to a larger air pollution
control strategy. While NEPA sets forth a procedure under which envi-
ronmental effects are to be considered, it does not provide a substantive
127
standard against which they are to be evaluated. Therefore, since
air pollution is only one of several environmental effects considered in
the impact statement, there is no formal .procedure used to date to re-
late the environmental assessment carried out under the impact state-
ment process for enforcement of state air pollution control strategies.
Another problem posed by the environmental impact statement pro-
cess is its limited coverage. Since the federal statute applies only to
federal or federally funded projects, the impact statement requirement
does not reach private developments affecting air quality, especially
industrial and other employment facilities that do not receive federal
subsidies. Indeed, the environmental impact statement process has bene-
fited air pollution programs primarily through its effect on the siting
128
and location of federally funded highways. Highway agencies have had
to consider the effects of air pollution created by motor vehicle traffic.
Presumably, these considerations affect the planning of the highway net-
work and, thus, indirectly affect the impact that network will have on
129
urban development and growth patterns. It should be noted that at
least one state environmental quality law has now been interpreted to
2-37
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extend the impact statement requirement to some private as well as pub-
lic and publicly funded development. Where this extension occurs, the
environmental impact statement process will be more relevant to air pol-
lution considerations since all raj or private development will at least
be forced to make a published report of environmental effects. Neverthe-
less, the state environmental quality acts, like their federal counter-
parts , are usually without substantive guiding criteria that can provide
-1 71
a rule for assessing impact statements once thay are filed.
Another piece of federal legislation that could have a more direct
effect on the exercise of land use restrictions as a part of state air
pollution control strategies is the federal Coastal Zone Management Act
132
of 1972. Although its coverage is limited to the 30 coastal and Great
Lakes states, it provides a prototype state land use control power which
would be required of all states if similar but more general national legis-
lation were passed. For coastal zones within the coastal states, the
federal legislation requires a state program for the control of land use
which can, when necessary, supersede local governmental authority.
Briefly, the federal law requires state control of "land and water uses
within the coastal zone," which shall include as alternatives: directly
exert Lsed state land use controls; establishment of state criteria for
local implementation; state administrative review of "all development plans,
projects, or land and water use regulations;" or a combination of these
measures.
As discussed above, land use controls for abatement of air pol-
lution may be direct or indirect, long-rang or short-range. State land
use restrictions under the federal Coastal Zone Act can be exercised sim-
ilarly, either to prohibit the location of potential new pollution sources
2-38
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or, in a more general way, to control land uses so that air pollution im-
pacts can be minimized. Indirect and long-range land use controls to
achieve clean air likewise must be based on comprehensive long-range
planning. On this point, although the federal Coastal Zone Act does not
mandate formal adoption of a coastal zone plan, it does require all
the major elements of a planning inventory in coastal zone areas. State
lane use powers exercised as part of a coastal zone program will be com-
prehensive since they will be exercised pursuant to land use and develop-
ment strategies based on statewide policies and criteria.
In addition to serving as a prototype, the Coastal Zone Act may
provide state air pollution control agencies with part of the authority
they need to carry out state implementation plans under the Clean Air Act.
The Coastal Zone Act provides that nothing in that Act:
shall in any way effect any requirement (1) established by ... the
Clean Air Act ... (2) ... or by any state or local government
pursuant to such . . . [Act]. Such requirements shall be incorpor-
ated in any program developed pursuant to [the Coastal Zone Act] . . .
and shall be the . . . air pollution control requirements applicable
, 137
to such program.
This section is ambiguous, especially since the term "requirement" is not
defined. But the provision is subject to the interpretation that actions
taken by state or local air pollution control agencies to regulate station-
ary sources bind state agencies exercising land use control powers in the
coastal zone. Under such an interpretation the ability of state air qual-
ity control agencies to pre-empt the exercise of land use controls by
other state agencies will be substantial. Indeed, statutes like the
Coastal Zone and Clean Air Acts, when read together, appear to confer
2-39
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substantial pre-emptive authority on air quality agencies over the actions
of local governments. State coastal zone agencies will have substantial
pre-emptive powers over local land use agencies when coastal areas are
affected, but these state agencies will in turn be subject to air pollu-
tion control requirements established pursuant to the federal Clean Air
Act. Indirectly then, state air quality requirements can be read to
pre-empt local land use powers whenever they are exercised so as to
1 ^8
affect coastal zone areas.
PRACTICALITIES OF EXERCISING LAND USE CONTROLS IN AIR POLLUTION PROGRAMS
As noted above, Congress and the states are committed to achieving
and maintaining national air quality standards, and it is clear that
land use controls have some role to play in meeting this objective. The
question is whether we can discover a role for land use controls in air
pollution programs that is consistent with the Clean Air Act and yet
capable of being implemented, considering both the limitations and re-
quirements imposed by the Act and the practicalities of adopting and en-
forcing such controls at state and local levels, The statutory frame-
work of the Clean Air Act presents problems of interpretation that make
elaborating a land use control strategy more than a routinely difficult
task. Problems arise from the legislation both because of the absolute
air pollution control objectives it imposes and because it fails to pre-
scribe administrative tradeoffs among various authorized control tech-
niques or to provide a method for considering these trade-offs on a
state-by-state basis.
The Clean Air Act is directed toward the reduction of air pollution
to appropriate levels, and makes this goal its single and paramount objec-
tive. A program based on attainment of a single environmental objective
2-40
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is ill-suited to the exercise of land use powers, which ordinarily are
directed to a multiplicity of different developmental and environmental
goals. Indeed, the accommodation of competing and even conflicting growth
and development objectives is one of the earmarks both of land use control
programs and of the comprehensive planning process which in theory they
are intended to implement. Strict implementation of a single-minded ap-
proach to air pollution to the exclusion of possible land use and development
criteria thus would be inconsistent with the statutory framework under
which land use controls are usually exercised. "
Other difficulties arise because federal clean air legislation author-
izes a series of pollution control strategies without specifying how these
strategies are to be combined into an integrated and effective air quality
control program. It is conceivable that stringent application of direct
restriction of emissions at the source would obviate any need to adopt
land use controls in some areas. Important problems of cost allocation
in air pollution programs are involved in this mix of strategies. For ex-
ample, to the extent that existing industries are required to bear the cost
of complying with technological standards, the compliance burden will be
shifted almost entirely to these industries in order that additional indus-
tries which may contribute to air pollution can enter the area. Banning
new stationary pollution sources to allow relaxation of standards applicable
to existing industries will shift the burden of compliance to potential new
entrants to the extent that location elsewhere imposes extra costs. The
general public will also suffer from such a ban to the extent that it re-
stricts economic growth. This allocation problem must receive more ex-
plicit consideration in air pollution control legislation before a realistic
and acceptable role can be found for land use control powers in achieving
2-41
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clean air.
These problems are compounded by the comparatively short compliance
schedules required by the Clean Air Act. Primary standards are to be
achieved within three years, and secondary standards within a reasonable
time; yet experience with land use controls everywhere suggests that a
much longer period of time is needed to accomplish the goals for which
land use control programs are designed. Reversal of long-term devel-
opment trends through piarming and land use restrictions takes time, and
we still know very little about the ways in which urban environments can
be regulated so as to minimize the effects of development patterns on
141
air pollution levels. At the same time, short-term direct regulation
of stationary pollution sources duplicates the legal authority in the Clean
Air. Act itself, permitting the states (and their local government units) to
carry out pre-construction review of stationary source locations. Gaps
in the Clean Air Act's authority over stationary source locations, however,
may leave room for the exercise of some land use powers over these sources
as well.
Other problems are intergovernmental as well as conceptual. Histor-
ically, land use authority in this country has been delegated to local
governments with full autonomy to pass and administer regulations. Air
quality control has been delegated to the states subject to federal cri-
teria, and while the states may in turn delegate powers of administration
to regional and local agencies, the basis for the exercise of pollution
control is regional and not local. Any mechanism for reconciling the pos-
sibly divergent objectives of air pollution and traditional land use reg-
ulation will have to take these varying governmental structures into
account.
2-42
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To date, no such statutory or administrative mechanism exists, and
ambiguities in policy have been reinforced by the practically concurrent
adoption of potentially conflicting and inconsistent federal legislation.
Congress cannot simultaneously require environmental impact assessments
of major federal and federally-funded projects without providing substantive
criteria, centralization of broad land use controls at the state level
to accomplish such limited environmental objectives as regulation of
coastal zones, and the adoption of federal and state programs to achieve
specified air quality goals within absolute time limits.
Apart from its requirements for state regulation of indirect sources,
EPA thus far has not insisted that states begin to develop an adequate
land use control program in their efforts to attain clean air. EPA's fail-
ure to require or even encourage the states to seriously consider compre-
hensive land use regulation is no incentive to state development of land
use programs which are needed to achieve air quality standards. State in-
itiative in adopting land use controls in the absence of a clear federal
directive is all the more unlikely as these controls may place severe
restriction on residential and industrial growth and thus stimulate con-
troversy. But Congress, and the agencies established to implement its
environmental programs, cannot avoid the land use problem forever. Even
deletion of the land use provision from the Clean Air Act would not fore-
close consideration of the land use issue. State land use regulations are
now required under related federal legislation, and land use control stra-
tegies unavoidably affect the achievement of air quality objectives whether
or not they are explicitly required under the federal air pollution con-
trol statute.
2-43
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CONCLUSION
Perhaps the central problem raised by this discussion is how to re-
concile inevitable conflicts between the narrow goals of air pollution
legislation and the more broadly defined objectives of land use control
programs. Spelling out the desired relationship between land use restric-
tions and direct emission and performance controls in the development of
an air quality implementation plan may even be impossible within the con-
fines of federal legislation concerned principally with guidelines and
policies. But the issue must be faced at some point in the federal or
state administrative hierarchy. If statewide land use control programs
are more widely adopted as a result of the Coastal Zone Management Act
and any subsequent related federal legislation, the resolution of comp-
eting objectives in land use and air pollution control strategies may
perhaps be more properly resolved within the comprehensive legal frame-
work provided by these programs. In this event, the development and im-
plementation of land use regulations would be left to state and local
land use agencies, while the air pollution agency -would be vested with
the responsibility for determining overall air quality objectives to
which these land use programs must conform. ^ If this occurred, Congress
would first have to reconsider the absolute nature of its air pollution
control objectives. Areas of potential conflict would still exist, as
in the case of pre-construction review of stationary sources, although
this problem could be handled by delegation of authority to land use
agencies. Nevertheless, assuming that regional and statewide land use
control programs are more widely adopted and implemented, the comprehen-
sive framework of the land use regulation process is a better legal and
policymaking setting in which to resolve the many problems created by the
interaction of air pollution and land use control strategies.
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NOTES
1. See, e.g., Trumbull, Federal Control of Stationary Source Air
Pollution, 2 Ecology L.Q. 283 (1972).
2. See A. Voorhees § Associates, A Guide For Reducing Air Pollution
Through Urban Planning (1971) (NTIS No. PB 207 510): Kurtzweg; Urban Planning
and Air Pollution Control: A Review of Selected Recent Research, 39 J. Am.
Inst. Planners 82 (1973) [hereinafter cited as Kurtzwecr). A recent study of
land use controls and the Clean Air Act by the Bay Area Pollution Control
District stated:
Historically, land use regulation as an air pollution
control technique might be considered to be the logical
culmination of pollution control effort. Technological
source control as applied almost exclusively in the past
has inherent limitations for reasons of economics and
technological feasibility . . . Clearly, the density
and geographical distribution of sources, as well as
the individual sources themselves, must be subj ect to
control if the Federally mandated air quality standards
are to be achieved, and once achieved, maintained.
R. Thullier, A Regional Air Pollution Modeling System for Practical
Application of Land Use Planning Studies 1 (May 17, 1973).
3. 42 U.S.C. Sections 1857c-5(a)(2)(B) (1970).
4. Id. Sections 1857-58a, amending the Air Quality Act of 1967, 42
U.S.C. Sections 1857-571 (Supp. V, 1970). The Air Quality Act of 1967
itself consisted of amendments to the Clean Air Act of 1963, Pub. L. No.
88-206, 77 Stat. 392 (1963) (formerly codified at 42 U.S.C. Sections 1857-
571 (1964). Thus, the persent version of the 1963 Act, as amended by the
1967 Act and the 1970 Amendments, is still properly referred to as the
Clean Air Act.
5. Under the Air Quality Act of 1967, the federal government could
take initiative only in the interstate cases and had virtually no role
in setting air quality standards. The Clean Air Act of 1963, Pub. L.
No. 88-206, Sec. 5 (f), 77 Stat. 392 (1963). See Trumbull, supra note
1, at 296.
6. The Secretary of HEW was previously charged with the administra-
tion of federal air and water pollution control legislation. This re-
sponsibility was then shifted to the Secretary of the Interior, and finally
to the Administrator of EPA. See Reorg. Plan No. 2 of 1966, 3 C.F.R.,1966-
1970 Comp., p. 1021 (eff. May 10, 1966); Reorg. Plan No. 3 of 1970, Sec.
2(a) (1), 3 C.F.R. 1966-1970 Comp., p. 1072.
7. See 42 U.S.C. Sec. 857c-4(a) (1) (A) (1970). Primary and secon-
dary ambient air standards have been promulgated for sulfur oxides, par-
ticulate matter, carbon monoxide, photochemical oxidants, hydro-carbons,
and nitrogen dioxide. 40 C.F.R. Sec. 50.4.11 (1972)
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8. The standards are based on criteria developed by EPA for each
pollutant which "reflects the latest scientific knowledge useful in indi-
cating the kind and extent of all identifiable effects on public health
or welfare which may be expected from the presence of such pollutant in
the ambient air, in varying quantities." 42 U.S.C., Sec. 1857c-3(a) (2)
(1970).
9. Id. Sec. 1857c-4(b) (1), (2).
10. Id. Sec. 1857c-5 (a) (2), (b), (c).
11. Id. Sec. 1857c-5 (a) (1). State plans also must provide for
inter-governmental cooperation where required as, for example, where an
air quality control region is divided among two or more states. Id. Sec.
1857c-5 (a) (2) (E).
12. Id. Sec. 1857c-5 (a) (2) (A).
13. Id. Sec. 1857c-6. To date, standards for five such sources
have been set: fossil-fuel-fired steam generators, incinerators, Port-
land cement plants, and nitric and sulfuric acid plants. 36 Fed. Reg.
24, 876 (Dec. 23, 1971). This year EPA set standards for asphalt con-
crete plants, petroleum refineries, storage vessels for petroleum liquids,
secondary lead smelters, and sewage treatment plants. 38 Fed. Reg. 15406
(1973) EPA has announced that stationary source standards for 15 other
basic industries would be set. 3 Env. Rptr. 884 (1972).
14. 42 U.S.C. Sec. 1857c-5(a)(2)(b) (1970). While not explicitly
discussed in this article, transportation controls authorized for inclu-
sion in state implementation plans also have a bearing on land use and
other related measures in the abatement of air pollution. For example,
EPA regulations list "Measures to reduce motor vehicle traffic" and
"Expansion or promotion of the use of mass transportation facilities"
as transprotation controls. 40 C.F.R. Sec. 51.1 (n) (7), (8) (1972).
15. In addition, the statute requires EPA to establish national
emission standards for hazardous air pollutants, and for all nonstation-
ary ("moving") sources, 42 U.S.C. Sec. 1857c-7(b) (1), 1857f-l(a) (1)
(1970).For further analysis of the 1970 legislative changes see Note,
Clean Air Act Amendments of 1970: A Congressional Cosmetic, 61 Geo.
L.J. 153 (1972).
16. 42 U.S.C. Sec. 1857c-5(a) (2) (B) (1970) (emphasis supplied).
17. Id. Sec. 1857C-5 (a) (4).
18. It is not clear from the statute whether or not states may
delegate authority to control stationary sources to local governments.
But cf. 40 C.F.R. Sec. 51.11(f), authorizing delegation to local gov-
ernments of power to carry out state implementation plans. See note
48, infra.
19. H. Rep. No. 91-1146, 91st Cong., 2nd Sess. (1971).
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20. The purpose of the original text authorizing land use controls
is echoed in the Senate Committee Report on the bill, which paraphrases
the original statutory language:
In addition to direct emission controls, other potential parts of
an implementation plan include land use and air and surface trans-
portation controls. These should insure that any existing or fu-
ture stationary source of air pollution will be located, designed,
constructed, equipped and operated, ... so as not to interfere
with the implementation, maintenance, and enforcement of any ap-
plicable air quality standard or goal, (emphasis supplied).
21. See text accompanying notes 17-18 supra.
22. Letter to the authors from Leon G. Billings, Senior Staff Mem-
ber, Subcomm. on Air and Water Pollution of the Senate Comm. on Public
Works, Jan. 5, 1973, on file with the authors.
23. See text accompanying notes 63-69 infra.
24. Joint Hearings on Air Pollution--1970 Before the Subcomm. on
Air and Water Pollution of the Senate Comm. on Public Workss 91st Cong.,
2nd Sess. (1970) [hereinafter cited as Senate Hearings].
25. 116 Cong. Rec. 42381 et. seq. (1972).
26. Hearings on implementation of the Clean Air Act Amendments of
1970 Before the Subcomm. on Air ana Water Pollution of the Senate Comm.
on Public Works, 92nd Cong., 2nd Sess. (1972) [hereinafter cited as
Oversight Hearings].
27. S. Rep., supra note 20, at 2.
28. 116 Cong. Rec. 42303 (1972).
29. Id. at 42387.
30. See generally E.J. Croke, K.G. Croke, A..S. Kennedy, $ L.J.
Hoover, The Relationship Between Land Use and Environmental Protection
(Argonne Nat'l Laboratory, 1972).
31. See text accompanying notes 19-28 supra.
32. 42 U.S.C. Sec. 1857c-6(c)(1) (1970) directs the Administrator
upon approving a state's plan to delegate to the state his authority for
"implementing and enforcing standards of performance for new sources
located in such State." 42 U.S.C. Sec. 1857c-5(a)(4) (1970) provides
for pre-construction review of all such new sources with the authority
to prevent construction if any national air standard is threatened.
33. The Act provides that the Administrator of EPA must approve
any state implementation plan which contains eight listed items, the
second of which mandates that the implementation plan must include:
emission limitations, schedules, and timetables for compliance
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with such limitations, and such other measures as may be
necessary to insure attainment and maintenance of such primary or
secondary standard, including, but not limited to, land use and
transportation controls.
Id. Sec. 1857c-5(a)(2)(B) (emphasis supplied).
34. The Bay Area Air Pollution Control District (BAAPCD) denied
authority to construct 18 gasoline stations throughout the Bay Area in
late October 1972. Under section 1309 of the BAAPCD Permit Regulations,
the Air Pollution Control Officer must deny permits for facilities which
emit air pollutants in areas where air quality standards are exceeded.
The air in most of the district exceeded the air quality standard. Of
the 1500 tons of smog-producing organic gases emitted per day in the
Bay Area in 1971, about 75 tons per day came from filling stations.
BAAPCD, Air Currents No. 11, at 1 (Nov. 1972). The ban was lifted after
ten weeks. Marin County Independent J., Jan. 4, 1973, at 1. However,
construction will only be permitted if stations install devices de-
signed to cut emissions at the gas pump by 90%. Telephone interview
with David Self, Counsel for BAAPCD, March 15, 1973.
35. See Buck v. Kilgore, 298 A.2d 107 (Maine, 1972). In this
case the municipality enacted an ordinance requiring filling stations
to be located at a stated distance from places of public assembly. The
effect of the ordinance was to ban all filling stations from the com-
munity. The court held the ordinance unconstitutional on the ground that
the spacing requirement was not justified by reasons of health.
36. See discussion accompanying notes 70-74 infra.
37. See note 44 infra.
38. See, e.g., 111. Ann. Stat. ch. 24, Sec. 11-14-1 (1962),
authorizing street setbacks in part to obtain "pure air".
39. See In re: Sports Complex in Hackensack Meadowlands, 62 N.J.
248, 300 A.2d 337 (1973). The court refused to disapprove the site
of a new sports complex in the meadowlands though it had been alleged
that motor vehicle traffic generated by the complex would cause air
pollution in violation of federal standards.
40. See text accompanying notes 114-16, infra.
41. 42 U.S.C. Sec 1857c-5(a)(1) (1970) provides in pertinent part:
"Each state shall . . . adopt and submit to the Administrator . . .
a plan which provides for implementation, maintenance, and enforcement
of such primary standard in each air quality control region (or portion
thereof) within the State."' (emphasis supplied)
42. See Kurtzweg, supra note 2. Rutgers University has completed
a study which evaluates the effects of a comprehensive county general
plan on air pollution levels. G. Hagevik, The Relationship between Land
Use and Air Pollution in Middlesex County, New Jersey, Rutgers University
Dep't of Planning and Policy Development (1973).
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43. See D. Mandelker, The Zoning Dilemma 57-63 (1971).
44. It is interesting that the Clean Air Act does not require
states to possess powers of condemnation control programs. Such
powers could be helpful, to take one example, in instances in which the
state needs to acquire pollutive industrial plants which must be shut
down in order to help reduce air pollution levels. Condemnation author-
ity is required by recent federal legislation calling for the exercise
of state powers in coastal zones. 16 U.S.C.A. Sec. 1455 (d) (2) (Supp.
1973).
45. Land use control powers have been delegated to the air quality
control agency in Philadelphia, Pennsylvania. See Keeney, Enforcement
of Philadelphia's 1969 Air Management Code: The First Three Years, 18
Vill. L. Rev. 173 (1972).
46. Coastal Zone Management Act of 1972, 16 U.S.C.A. Sec 1451
et seq. (Supp. 1973). See especially Id. Sec. 1455 (d) (Supp. 1973).
See also text accompanying notes 133-39 infra.
47. See F. Bosselman § D. Callies, The Quiet Revolution in Land
Use Control (Council on Environmental Quality 1971).
48. While the question of delegation of authority to implement
a state air quality plan is not covered by the Act, EPA regulations
allow delegation of authority to carry out a portion of a plan to a state
agency other than the state air pollution control board. 40 C.F.R.
Sec 51.11 (e). Further, 40 C.F.R. Sec. 51.11 (f) provides that the state
may authorize a local agency to carry out a plan or portion thereof.
EPA appears to assume that once a state implementation plan is approved,
the state itself has authority to carry the plan out normally through
its air pollution control agency.
49. 42 U.S.C. Sec. 1857c-5(a)(2)(A) (1970). For the EPA regula-
tions promulgating these standards see 40 C.F.R. Sec 50.1 et. seq.
50. 42 U.S.C. Sec. 1857c-5(a)(2)(A) (1970).
51. Id.
52. Id. Sec. 1857c-5(e)(l)(B) (emphasis supplied). Cf. the
order of the court in Natural Resources Defense Council v. EPA, 475
F. 2d 968, 4 ERG 1945 (D.C. Cir. 1973). Section 1857c-5 (e) also pro-
vides , however, that such extensions are allowable only if technology
required to attain primary standards is not available in time to meet
the statutory deadline.
53. E.g., concerning The Los Angeles Basin, see Calif. Inst. of
Technology Environmental Quality Laboratory, Smog--A Report to the
People. (1972).
54. The exception is quoted in text accompanying note 91, infra.
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55. 42 U.S.C. Sec. 1857c-5 (a)(2)(A) (1970).
56. S. Rep., supra note 20, at 2. For example, the Senate Report
also called for rigorous controls on "existing sources in order to pro-
vide a margin for future growth" in regions where air quality levels are
below standard. Id. at 13. When the socio-economic issue surfaced dur-
ing subsequent Oversight Hearings on the enforcement of the Clean Air
Act, a Congressional intent to permit consideration of such impacts
again was hotly denied:
Senator Eagleton: ... In respect to economic feasibility, it is
clear again beyond any shadow of a doubt that Congress intended
that this not be a factor insofar as the primary standards were
concerned relating to public health.
Economic feasibility was included in the House bill, it was hotly
debated in conference and it was deleted.
Oversight Hearings, supra note 26, at 18, 19. See also Id. at 308,
312. These statements were also made in the context of a discussion
about emission limitations.
57. This argument, of course, is not universally valid. Recent
experience with transportation control plans under Sec. 1857c-5 indi-
cates that EPA will not require extreme economic dislocation or social
disruption for the sake of attaining clean air on schedule. See Los
Angeles transportation control plan, 38 Fed. Reg. 17683 (1973) (preamble),
58. 42 U.S.C. Sec. 1857c-4 (b) (2) (1970). The Act declares that
the term "public welfare" includes
effects on soils, water, crops, vegetation, man-made materials,
animals, wildlife, weather visibility, and climate, damage to
and deterioration of property, and hazards to transportation,
as well as effect on economic values and on personal comfort
and well-being.
Id. Sec. 1857h(h).
59. Id. Sec. 1857C-5 (a)(2)(A).
60. See text accompanying note 50 supra.
61. See Natural resources Defense Council v. EPA, 475 F.2d 968,
4 ERC 1945 (B.C. Cir. 1973), in which the court found that EPA may not
have properly reviewed state plan provisions for maintaining air quality
and ordered a new EPA review of those provisions.
62. 344 F. Supp. 253, 4 ERC 1205 (D.D.C. 1972), aff'dmem.,--
F.2d--. 4ERC 1815 (B.C. Cir. Nov. 1, 1972), aff'd by equally divided
court sub non. Fri v. Sierra Club, -- U.S. -~, 5 ERC 1417 (June 11, 1973),
See Note, The Clean Air Act and the Concept of Non-degradation; Sierra
Club v. Ruckelshaus, 2 Ecology L.Q. 801 (1972). See also EPA's pro-
posed regulations on non-degradation in 38 Fed. Reg. 18986 (1973).
63. EPA first published regulations on April 30, 1971, setting
the "National Primary and Secondary Ambient Air Quality Standards."
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36 Fed. Reg. 8186 (1971). These regulations were re-issued in 36 Fed.
Reg. 22384 (1971), and are presently codified in 40 C.F.R. Sec 50.1 et
seq. (1972). On August 14, 1971, EPA issued regulations setting forth
requirements for the preparation, adoption and submittal of implementa-
tion plans. 36 Fed. Reg. 15486 (1971). These regulations were re-
issued in 36 Fed. Reg. 22398 (1971), and are presently codified in 40
C.F.R. Sec. 51.1 et seq. (1972). Minor changes were made in the regula-
tions as finally issued in the Code of Federal Regulations to correct
errors in the regulations as they appeared in the Federal Register.
The Clean Air Act required that within nine months after the
standards were published (i.e., by January 30, 1972), each state sub-
mit implementation plans designed to attain and maintain the national
standards in each air quality control region under its jurisdiction.
42 U.S.C. Sec. 1857c-5(a)(1) (1970). On May 31, 1972, EPA issued fur-
ther regulations, on the "Approval and Promulgation of Implementation
Plans," which approved or disapproved specific provisions in each state
plan. 37 Fed. Reg. 10842 (1972). Then, on June 14, 1972, the Administ-
rator proposed changes or additions to various state plans as he is re-
quired to do under Section 110 of the law, and these changes or additions
were open to public debate. 37 Fed. Reg. 11826 (1972).
64. See text accompanying notes 85-87 infra.
65. 40 C.F.R. Sec. 51.11(a)(1) (1972).
66. Id. Sec. 51.12(a).
67. Id. Sec. 51.1(n).
68. Although the term "control strategy" as used in practice
refers to any particular technique for reducing emissions (e.g. a
vehicle ban or an emission charge) rather than to the panoply of tech-
niques included in a state plan, the definition which the regulation
provides may be used to augment state land use authority under the
Act. See text accompanying notes 102-10 infra.
69. 40 C.F.R. Sec. 51.1(n)(2) (1972.
70. 36 Fed. Reg. 6680 (1971). In regard to land use, perhaps
most obvious was the deletion of the requirement for a state permit
system to review construction, modification, or operation of stationary
sources; general authority for pre-construction review was still required.
40 C.F.R. Sec.51.11(4), 51.18 (1972). One of the reasons given privately
for dropping the permit requirement is EPA's fear that an environmental
impact statement might by required for each permit. The requirement
that any necessary land use control authority be in effect immediately
upon submission of the plan was also deleted. Instead, the state was
required to submit a timetable for obtaining the requisite legal author-
ity if its plan contained land use or transportation control measures.
Id. Sec. 51.11(b).
71. 40 C.F.R. Sec. 51.2 (1972). See also preamble to Appendix B,
authorizing states to consider the "social and economic impact" of emis-
sion limitations.
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72. Id. Sec. 51.10(a).
73. Id. Sec. 51.30(c) (2).
74. Id. Sec. 51.30(d)(3).
75. Project on Clean Air, Natural Resources Defense Council, Anal-
ysis of Twenty-four Proposed State Implementation Plans for the Control
of Air Pollution, to Determine their Compliance with the Clean Air
Amendments of 1970 (April 18, 1972). California listed a number of pro-
posed land use regulations in its implementatiort plan; controls also were
listed as under consideration for the metropolitan areas of Portland,Oregon,
Baltimore, Maryland, and Washington, D.C.
76. See 37 Fed. Reg. 10842, 10846, Sec. 52.03 (1972), and the rel-
evant portions of approvals and disapprovals of state plans. Note, how-
ever, that if EPA disapproves a state implementation plan, it must it-
self publish regulations which substitute for those disapproved and
which meet the requirements of the Clean Air Act. City of Riverside
v. Ruckelshaus, --F. Supp.--, 4 ERC 1728 (C.D. Calif. 1972) (transpor-
tation controls).
77. EPA also had permitted the states to defer submission of their
transportation control plans beyond the statutory deadline, on the ground
that it was still studying the effectiveness of transportation control
measure. 37 Fed. Reg. 10842 (1972).
78. 40 C.F.R. Sec. 51.13(b)(l) (1972).
79. Id. Sec. 51.13 (b)(2).
80. 37 Fed Reg. 10847 et seq (1972).
81. 40 C.F.R. 51.12(a) (1972).
82. 37 Fed. Reg. 10843 (1972).
83. Natural Resources Defense Council v. EPA, 475 F.2d 968, 4 ERC
1945 (D.C.Cir. 1973).
84. 38 Fed. Reg. 15836 (1973). See also the discussion of complex
source regulations at text accompanying note 114-16, infra. Later
changes in what EPA requires of the states are also made possible by
provisions in the Act to the effect that, as part of their plans, states
must retain the power to revise their plans 1.) "to take account of re-
vision of [a] ... national . . . standard or the availability of im-
proved or more expeditious methods of achieving such . . . standard or"
2.) "whenever the Administrator finds . . . that the plan is substantial-
ly inadequate to achieve ... [a] national . . . standard". This autho-
rity could presumably be exercised to require the state to include land
use controls in plans which previously had not included them. Also see
discussion in chapter 4.
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85. Cases have been brought which challenge EPA's interpretation
of this aspect of the statute. Petitioner' Brief at 43-46, Natural Re-
sources Defense Council v. EPA, Civil No. 72-1458 (10th Cir. 1973). See
Oversight Hearings, supra note 26, at 3-47.
86. E.g., Oversight Hearings, supra note 26, at 19. Eagleton also
claimed that Congress did not intend socio-economic considerations to
enter into the implementation of air quality controls at all. See the
discussion of legislative history accompanying notes 54-57 supra.
87. Administrator Ruckelshaus testified:
We are not permitted to take cost into account in setting that
[primary] standard. What we are saying in these guidelines
is that in order for the states to meet the standard . . . they
ought to take into account the socio-economic costs of achieving
it.
Oversight Hearings, supra note 26, at 276. See also Buckeye Power Co.
v. EPA, -- F.2d --, ERC 1611 (6th Cir. 1973), in which the court, though
with little analysis, accepted EPA's interpretation concerning the role
of socio-economic factors in imposing emission limitations on air pol-
luters. But cf. NRDC v. EPA, Civil No. 72-1219, 72-1224 (1st Cir., May
2, 1973).
88. Interest in local planning programs with growth limitation
as the objective has been increasing, however. See, e.g., McGivern,
Putting a Speed Limit on Growth, 38 Planning 263 (1972) (Petaluma,
Calif.).
89. 42 U.S.C. Sec. 1857c-6(b) (1)(A) (1970).
90. Id. Sec. 1857c-6(b)(l)(B).
91. Id. Sec. 1857c-6(a)(l).
92. Id. Sec. 1857c-5(a)(4).
93. S. Rep., supra note 20, at 16.
94. Id. at 17.
95. Regulations were to be published with provisions for "pre-
construction review of ... locations, " and " methods to insure that
any. . . new source . . . not prevent implementation of national ambient
air standards." S. 4358, 91st Cong., 2nd Sess. Sec. 113(e)(l)(A) (1970).
96. A positive answer to this question is suggested by Allway Taxi
v. City of New York, 340 F. Supp. 1120 (S.D.N.Y. 1972). A city ordinance
required all pre-1970 taxis to have emission control devices complying
with federal standards and later models to be equipped with such devices
as might be specified by the city. This requirement was held not pre-
empted by the provision of the federal Clean Air Act which prohibits the
states and their subdivisions from creating standards for exhaust emission
control devices for new motor vehicles and motor vehicle engines. Citing
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Chrysler Corp. v. Tofany, 429 F.2d 499 (2nd Cir. 1969), the court noted
that the pre-emptive effect of national legislation should be narrowly
construed when local regulations serve the federal purpose. See also
Strong, The Impact of Pre-emption on Environmental Regulation, 1972
Land Use Controls Ann. 15; Comment, The Constitutionality of Local .Anti-
Pollution Ordinances, 1 Fordham J. Urban L. 208 (1972).
97. Senate Hearings, supra note 24, at 1495-96.
98. S. 4358, supra note 95, Sec. 113(b)(2) (emphasis supplied).
99. Section 60.6 of the regulations does allow the owner or opera-
tor of the proposed new source or modification voluntarily to request
"technical advice" on his project from the EPA Administrator. Although
this request must identify the location of the affected facility, it
does not appear from reading the regulations that the Administrator need
consider the location of the source when giving technical advice. While
the technical advice which the Administrator is to give is not limited
in the regulations to determining compliance with federal performance
standards, there is no way to interpret the term to include advice on
land use questions, such as the appropriate location for a new statutory
source. These regulations are codified in 40 C.F.R. Sec. 60.1 et seq.
(1972).
100. 42 U.S.C. Sec. 1857c-5(a)(2)(D), 1857c-5(a)(4) (1970).
101. Id. Sec. 1857c-5(a)(4).
102. This process presumably could also be utilized to enforce stric-
ter air pollution standards than those required under the federal law.
See 40 C.F.R. Sec. 51.2(f) (1972).
103. Id. Sec. 51.18(a) (emphasis supplied).
104. Id. Sec. 51.11(a)(4), 51.18(a), 51.18(c) (emphasis supplied).
105. Note also that Section 51.11 (a)(4) of the regulations requires
the authority to prevent the operation of an existing source if its "lo-
cation . . . will prevent the attainment and maintenance of a national
standard." (emphasis supplied). This requirement must be read with the
definition of a control strategy to include the "closing or relocation
of industrial facilities." Sec. 51.1(n)(3). Read together, these pro-
visions would require the state to have the authority to close down ex-
isting stationary sources, but only in cases where a violation of na-
tional standards is threatened.
106. When the pre-construction review process was inadequate to achieve
compliance both with national standards and the control strategy, this
fact was usually mentioned. E.g., 37 Fed. Reg. 10876, Sec 52.1329 (1972)
(Missouri).
107. 40 C.F.R. Sec. 60.8 (1972)
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108. See note 44 supra.
109. 40 C.F.R. Sec. 51.11(b) (1972).
110. See 37 Fed. Reg. 10842 (1972).
111. E.g., 37 Fed. Reg. 11827 (1972) (Sec. 52.426 applying to Delaware).
112. Id.
113. 37 Fed. Reg. 10842, 10843 (1972). Interview with Robert Baum,
Assistant General Counsel, EPA, August 9, 1972.
114. See 38 Fed. Reg. 6279 (1973) (preamble to proposed complex
source regulations). EPA was responding to a court order which required
it to review state implementation plans to assure that adequate strategies
had been adopted to maintain air quality standards once they had been
achieved. See text accompanying note 84, supra.
115. 40 C.F.R. Sec. 51.18(a), as added by 38 Fed. Reg. 15834, 15836
(1973) (emphasis supplied).
116. 38 Fed. Reg. 15834, 15837, 29893 (1973).
117. E.g., the Federal Coastal Zone Management Act of 1972, discussed
in text accompanying note 133, infra.
118. 40 C.F.R. Sec. 51.18(e), as added by 38 Fed. Reg. 15834, 15836
(1973).
119. See part VI, infra.
120. This conclusion is supported by Section lll(d)(l) of the Act,
which provides that the states will be required to submit a plan establishing
emission standards for any existing source for any air pollutant (i) for
which air quality criteria [and therefor air quality standards] have
not been issued . . . but (ii) to which a [federal] standard of per-
formance . . . would apply if such existing source were a new source.
Thus the Act itself recognizes the possibility that federal performance
standards will be set for some sources, even though no air quality stan-
dards are set for the pollutants that they emit.
121. 42 U.S.C. Sec. 1857c-6(a)(3) (1970); 40 C.F.R. Sec. 60.2(d) (1972)
(emphasis supplied).
122. 40 C.F.R. Sec. 51.11 (a) (4) (1972).
123. For a favorable view of supplementary local authority to reg-
ulate emission sources which limits the preemptive effect of the Clean
Air Act see Allway Taxi v. City of New York, 340 F.Supp. 1120 (S.D.N.Y.
1972).
124. Codified at 42 U.S.C. Sec. 4321 et seq. (1970).
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125. Id. Sec. 4332(2)(c).
126. See, e.g., United States Department of Transportation, Office
of the Secretary, Procedures for Considering Environmental Impacts, 36
Fed. Reg. 23682, Attachment 1, Sec. 4(a) (6) (1971). The phrase "sig-
nificantly affecting" the environment is defined to include "(a) any
action which . . . (b) has a significantly detrimental impact on air
or water quality ..."
127. Most courts have held that the National Environmental Policy
Act does not provide a substantive standard under which they may, if they
wish, set aside an agency decision to proceed with a project on the ground
that its environmental impact will be adverse. But cf. Environmental
Defense Fund v. Corps of Engineers, 470 F.2d 289 (8th Cir. 1972); Note,
Substantive Review Under the National Environmental Policy Act: EEF v.
Corps of Engineers, 3 Ecology L.Q. 173 (1973).
128. See Symposium, The Impact of the Highway on the Urban Environ-
ment, 20 Catholic U.L. Rev. 1 (1970); Note, Litigating the Freeway Re-
volt: Keith v. Volpe, 2 Ecology L.Q. 761 (1972).
129. Even more comprehensive consideration of air pollution effects
is required by recent Federal Highway Administration regulations which
promulgate "air quality guidelines for use in planning and construction
of proposed highway improvements." 23 C.F.R. Part 770, added by 38
Fed. Reg. 23970 (1973). See also the Highway Administration's guide-
lines for highway Action Plans, 23 C.F.R. Sec. 795 (1973).
130. Friends of Mammoth v. Mono County, 8 Cal. 3d 247, 104 Cal
Rptr., 502 P.2d 1049, 4 ERC 1705, modifying 8 Cal. 3d 1, 500 P.2d 1360,
104 Cal Rptr. 16, 4 ERC 1593 (1972). See Note, After-mammoth: Friends
of Mammoth and the California Environmental Quality Act, 3 Ecology L.Q.
(1973). The statutory analysis used by the court was based largely
on NEPA guidelines and therefore would readily allow a finding that
private projects requiring federal agency permits fall within NEPA's
purview.
131. See, e.g., the New Mexico statute, which is set forth in City
of Roswell v. New Mexico Water Quality Control Comm'n, -- N.M. 561, 505
P.2d 1237 (1972).
132. 16 U.S.C.A. Sec. 1451 et seq. (Supp.1973).
133. Legislation now pending before Congress would require the
enactment for all states, as a condition to federal planning assistance,
of a state land use control program similar to the coastal zone manage-
ment program which is discussed in the text. See Land Use Policy and
Planning Assistance Act of 1973, S. 924, 93rd Cong., 1st Sess. (1973).
See Comment, Recent California Planning Statutes and Mountain Area Sub-
divisions : The Need fo:r Regional LandUse Control, 3 Ecology L.Q. 107,
at 141 (1973).
Though it does not directly effect air pollution, another fed-
eral Act which can serve as a prototype for relating land use management
2-56
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and pollution control is the federal Water Pollution Control Act Amend-
ments of 1972. Those amendments have been called a land use act within
the Water Act. 3 Env. Rptr. Curr. Dev. 1488 (1973). The area-wide
waste treatment management which section 208 of the amended Act mandates
can be used to solve land use problems caused by industrial concentration
or other factors having an impact on water quality. Indirect effects on
air pollution will undoubtably accrue from the no-effluent limitation
which the Act imposes in the mid-1980's. Current discharges might then
be solidified or burned only to become either solid wastes or air pollution.
134. 16 U.S.C.A. Sec. 306(e) (Supp. 1973).
135. See text accompanying notes 32-40, supra.
136. 16 U.S.C.A. Sec. 1454(b) (Supp. 1973).
137. Id. Sec. 1456(b).
138. Pending federal legislation would require state and federal
control over the location of power plants. Since power plants make sig-
nificant contributions to air pollution, the enactment and exercise of
review powers under legislation of this kind could have a substantial
impact on state air pollution control programs. For general discussion
see Special Committee on Electric Power and the Environment, Association
of the Bar of the City of New York, Electricity and the Environment:
The Reform of Legal Institutions (1972).
139. These tensions are particularly evident when seen in light
of the role of socio-economic considerations in the development of air
pollution implementation plans. See text accompanying notes 70-74, supra.
140. See generally D.E. Boyce, N.D. Day § C. McDonald, Metropolitan
Plan Making (1970).
141. See discussion of complex sources accompanying notes 114-20,
supra and in chapter 4.
142. Some such accotmoc3ation appears to have been contemplated by
the federal coastal zone legislation, but the legislative solution is
imperfect. See text at note 138, supra.
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CHAPTER THREE
THE VERMONT AND MAINE COMPREHENSIVE LAND USE STATUTES:
AN ANALYSIS OF PROCEDURES
The fragmentation of land use controls at the local governmental
level in the United States is a major barrier to the introduction of
land use planning considerations into the process of air quality manage-
ment process since air quality implementation plans are adopted and ad-
ministered largely at the state level. A coordinate system of state-
level land use control should therefore receive serious consideration
as part of a state's air pollution control strategy. This chapter
examines two such state-wide land use control systems, in Vermont and
Maine, with attention to the role that these systems can play in the
achievement and maintenance of air quality standards.
The most prominent difficulty in such state-wide land use control
statutes is the tension between the sentiment for local control, anchored
in the traditional delegation of state zoning power to local bodies, and
the need for management of environmental problems that are typically
regional or state-wide in scope.
This tension, in combination with the technical problems of making
very specific land use decisions at the state level, has resulted in
the sometimes uneasy compromises exemplified by the structure of the
Vermont and Maine statutes. The compromises have led to a great deal of
innovative legislative and administrative solutions to the problems
of land use control, but they have also left unsolved many serious is-
sues. These issues include the legislative and administrative Integra-
3-1
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tion of authority over environmental issues fragmented by piecemeal
legislation, the coordination of planning and regulatory functions, and
the coordination of overlapping jurisdictions of state regulatory agencies
and the concurrent jurisdictions of state, regional, and local planning
agencies.
Many less general questions, such as how to acquire control of
development, how to establish environmental standards for land use de-
cisions, and how to develop effective enforcement sanctions, arise
whatever the environmental values involved. Others arise specifically
in connection with incorporating air quality considerations into land use
regulation and planning, such as how to integrate the expertise of air
quality specialists into the legal structure of the land use control
process.
The structure of the Vermont law and the manner in which these
problems have been met in administering it are discussed in this chapter.
It should be kept in mind that although both the Maine and Vermont sta-
tutes establish air quality effects as one of the relevant criteria in
controlling land use, neither state has a significant air pollution prob-
lem and consequently very little actually has been done to incorporate
air quality considerations into the planning process. However, the func-
tional equivalent of performance standards, seems to have been developed
on an ad hoc basis in the permit review process whenever air pollution
issues have arisen.
The following should be seen as a study in administrative practice
as well as legal structure, since at least in Vermont, the broadness of
the statutory language and the paucity of specific statutory criteria
for planning and permit decisions have given the responsible agencies a
3-2
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great deal of latitude to carry out the law on a flexible, case-by-case
basis. It should also be kept in mind that the permanent land use plan
called for by the statute had not been completed in Vermont at the time
of this study, and that the Interim Plan and the permanent Capability and
Development Plan had been in effect for too short a period to noticeably
affect the permit review process. It is therefore too early to reach any
firm conclusions about the effectiveness of the existing legal and admin-
istrative structure for planned control of development in these states, in
terms of air quality control or any other criterion. Still, a review of
experience to date yields useful insights.
STRUCTURE OF THE STATUTES
Vermont's Act 250
Vermont's Land Use and Development Law, popularly known as Act 250,
arose from a crisis of public and legislative concern over the accelerated
o
pace of uncontrolled development in Vermont. Although the statute is
quite comprehensive in implementing its purpose of guiding development
in order to preserve Vermont's environment, the particular contemporary
concerns at the time of its enactment undoubtedly determined its ultimate
strengths and weaknesses. One major concern was the effect on lakes and
streams of increased numbers of septic tanks in a state where soil con-
ditions rarely permit such a system of waste disposal, and this concern
is reflected in the aitple provisions in Act 250 for meeting water quality
standards, and in the burden of proof that has been placed on the ap-
plicant to prove that they have been met. Another issue affecting the
shape of the Act was a desire for as much local control as possible
short of frustrating the comprehensive purposes of the legislation; that
5-3
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led to the establishment of District Commissions, where applications
are first reviewed.
It seems likely that the same sense of urgency that resulted in
Act 250 also accounts for its primary structural weakness, which lies
in the unspecified form of coordination between the two roles of the
Board established to administer the Act: comprehensive planning for de-
velopment and review of permit applications. The act is, in effect,
two acts, providing for land use planning and land use regulation, and
the only link between the two roles on the face of the statute lies
in the provision^ that the District Commission must find that the appli-
cation is "in conformance" with a duly adopted plan. As will be seen
in the following discussion, this language means many things to many
people.
Act 250 establishes an Environmental Board consisting of nine mem-
bers appointed by the governor; all members have terms of four years
8
except the chairman, who serves only two years. There is no statutory
provision for expert or professional members, although the Board may ap-
point executive and administrative personnel as necessary. The Act
also establishes seven District Coranissions in existing administrative
districts. These Commissions have two members appointed for two years.
Again, there is no requirement of expertise or representativeness. The
Board may apply for and receive grants, require information, facilities
and personnel of other state agencies, and adopt rules to carry out
12
the Act. Both the Board and the District Commissions may subpoena
witnesses and require the production of evidence.
One of the basic functions of the Environmental Board is to "adopt"
three land use plans—an "Interim Capability Plan", which has been
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developed and adopted and has already expired under the statute,
a permanent "Capability and Development Plan", which has passed the
legislature,and a "Land Use Plan". The statute makes few prescriptions
on how the Board is to arrive at these plans, except that it must hold
public hearings in appropriate regions, and in each district. The
plans must also be submitted to regional and municipal planning commissions
1 $
for comment, and the Board must respond to all recommendations so made.
Most importantly, the Board must submit all plans to the governor for approval,
although his failure to act within 30 days shall be deemed approval, and
furthermore must submit the two final plans to both houses of the legis-
19
lature for approval by joint resolution. The original mechanism for
legislative approval of the plans, which was somewhat unclear, has been
7D
changed in the recent amendments to Act 250. The Capability and De-
velpment Plan enacted by some of these amendments was passed by an act
of the legislature rather than as a resolution, and the permanent Land
Use Plan will also be an act.
Act 250 allows for petitions by state agencies, municipalities,
or property owners for changes in the boundaries designated by the plans.
The significance of these rather elaborate provisions for amendments will
be considered further in a later section.
The nature of the plans is broadly sketched in the statute. The
Interim Plan is to describe present uses and "define in broad categories"
?i 22
the capability for use and development. The section describing
the permanent Capability and Development Plan provides that it must be
consistent with the Interim Plan, but otherwise only lists several pur-
poses which it is to serve rather than prescribing any form it is to take.
The Land Use Plan, on the other hand, is to determine, again in
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"broad categories" based on the Capability Plan, the proper use of the
land in the state. This plan is to consist of maps and statements of
present and prospective land uses and is to be "further implemented at
the local level by authorized land use controls...."2-^ The language
leaves many questions unanswered and the last section, especially, rai-
ses several rather fundamental issues concerning the legal status of the
plans once they are adopted. Although the 1973 amendments to the sec-
tion governing the permanent Land Use Plan did not clarify the nature of
the land use designations, it did resolve the issue of whether the pol-
icies of the Act 250 plan would govern land use decisions not strictly
within the jurisdiction of the Act 250 permit review process. The new
provisions strictly limit the authority of the plan to uses involving
more than ten acres. The amendments also added a requirement that the
plan take into consideration regional and local plans and that it incor-
porate non-regulatory approaches to implementation of the Capability
Plan, such as state acquisition of conservation easements, and adjustment
of taxing practices.
The Environmental Board also functions in a quasi-judicial manner in
appeals from permit decisions of the District Commissions, which are
taken de_ novo. In such a case the Board is to follow the same pro-
cedure as the District Commissions. ° This decision can in turn be ap-
pealed to the state Supreme Court, but the Board's findings of fact
are conclusive and the issues are limited to those raised before the
Board.27 The 1973 amendments also allow for removal of the appeal from
the Environmental Board to a county court.
The permit review process, which is the primary function of the
District Commissions, is the heart of the regulatory mechanisms of Act
3-6
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250. With certain exceptions such as existing developments, electric
power companies, and farming and logging operations below 2500 feet,
the Act requires permits of anyone commencing any development or con-
29
struction or selling any interest in a subdivision. Anyone proposing
to undertake such activities must file an application with the District
Commission if they involve a tract of land larger than ten acres, a sub-
division of more than ten lots, or housing of more than ten units; if
they involve more than one acre in a municipality that has not adopted
permanent zoning and subdivision regulations, or if they involve land
above the elevation of 2500 feet. The applicant must file a plan of
his proposed project, and must permit the Commission or its agents to
make any necessary on-site examinations or tests. Statutory parties
to be notified are the municipality, municipal and regional planning
32
commissions, and adjacent municipalities and commissions where relevant.
The Commission must also notify the Board and any state agencies directly
affected. Any of these statutory parties or an adjoining property owner
may request a hearing, or the Commission itself may order a hearing.
The date must be set within 25 days of receipt of the application (or
notice of appeal), with timely notice, including publication, to all
parties. Parties are those receiving notice, adjoining property owners
requesting a hearing, and others by rule of the Board. If there is no
hearing, which is not essential, a permit must be granted or denied
within 60 days and if not it is deemed approved. In addition, the 1973
amendments permit the Board to classify applications according to com-
•7Q
plexity and to provide for simplified procedures where appropriate.
In issuing a permit, the District Commission must find that the
•70
project meets ten different criteria which are cast in very broad
3-7
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terms but form the substantive standards by which Act 250 regulates
development (see Appendix A). Criteria 1 to 4 refer to burdens on the
environment and are almost wholly concerned with water quality. Like
criteria 5, 6, and 7, which concern burdens on municipal services, cri-
teria 1 to 4 require a finding that the project does not create an
"unreasonable" or "undue" effect. Criterion 8 is the broadest of all,
an omnibus clause requiring the commission to find that the project will
not have an "undue adverse effect" on scenic beauty, aesthetics, histor-
ic sites, or rare and irreplaceable natural areas. Criterion 9 requires
conformance with duly adopted land use or capability plans, and 10 re-
quires conformance with regional and municipal plans. These notably
terse clauses are the sole statutory basis on which to rest the authority
of the plans once promulgated, and they apparently give equal authority
to regional and municipal plans.
The applicant has the burden of proof with respect to criteria 1
through 4 and 9 and 10, but his adversaries must demonstrate the undue
40
adverse effect with respect to 5 through 8. As noted before, appeals
are de no\'o to the Environmental Board.
The recent amendments to the permit criteria are extensive, adding
considerably to the specificity of some, while leaving others untouched.
Since this expansion constitutes the permanent Capability and Develop-
ment Plan, it will be discussed in greater detail below. In brief, how-
ever, Criterion 1 has been enlarged to give more detailed standards un-
der which permits that affect water supplies, quality, and shore-lines
may be granted. Specific conditions for granting permits affecting en-
dangered species and natural habitats have been included under criter-
ion 8, which had been particularly criticized for a lack of discernible
3-8
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standards. Criterion 9 has mushroomed from one paragraph to eleven,
since it now embodies the permit review standards of the Capability and
Development Plan.
A permit is granted for a specified period which is to be determined
by the Board, based on a reasonable projection of the time the land will
remain suitable for that use, and can be revoked for violations of any
of its conditions or any other rules of the Board. The District Commis-
sion may attach to a permit such conditions as are within the scope of
the police power and appropriate to meeting these criteria, as well as im-
pose conditions and requirements appropriate under certain sections of
another statute covering municipal and regional plans. The Board may
rule that a permit from a relevant state or municipal agency can serve
in lieu of evidence by the applicant on that issue.
No permit may be denied unless detrimental to general health and
welfare, and specific reasons for each denial must be given. No permit
can be denied solely on the basis of criteria 5, 6, or 7, which refer to
burdens on municipal services.
In addition to the power to grant, deny or revoke permits for de-
velopment, a fine of $500 for each day of violation, or imprisonment for
up to two years, may be imposed,for infraction of the provisions of the
44
Act or rules promulgated thereunder. The Board may also institute
actions, injunctions, or any other proceeding to prevent or correct any
such infraction. Recent legislation has given the Secretary of the
Agency of Environmental Conservation the power to institute proceedings
on behalf of the Environmental Board, inter alia, to enforce the pro-
visions of Act 250 and the Water and Air Pollution Act. The Secretary
may also bring action in the name of the agency in a court of competent
3-9
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jurisdiction to obtain a temporary or permanent injunction to restrain
the continuation or repetition of a violation. Another alternative
available to the Secretary^' is obtaining an "assurance of discontinu-
ance" in lieu of former remedies, to be filed with the Attorney General
and the court of competent jurisdiction. The Attorney General can re-
quest a hearing if he objects to the terms of the assurance, and a vio-
lation of the assurance constitutes prima facie evidence of a violation
of the statute. Short of these measures the Secretary can issue a notice
of violation and apparently cease and desist orders. The statute pro-
vides a civil penalty of $100 to $10,000 for violations of orders issued
48
under the subsection.
On the face of the statute, Vermont's Act 250 is straightforward
and its two-level hierarchy and division of function fairly simple. How-
ever, the administrative facts belie this apparent simplicity of oper-
ation, since the Act represents the confluence of many land use controls
and regulatory programs affecting the use of land. Many of these pro-
grams and controls were already in existence when Act 250 was passed}
others were created by legislation passed around the same time, and others
represent concerns unique to Act 250. Although an administrative re-
organization act was passed in the same session of the legislature^
that created the Agency of Environmental Conservation of which the En-
vironmental Board is part,a developer still must obtain as many as 26
permits from various divisions before commencing work. The effort to
coordinate these programs and to channel their expertise into the decisions
of the District Commissions in order to provide a rational and uniform
basis for permit review appears to have required a good deal of the time
and ingenuity of the Act's administrators at. all levels during its ini-
3-10
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tial years. The steps taken have just begun to be recognized legisla-
tively, and the further complexities that will be introduced by the
permanent plans, such as the problems of concurrent authority with
regional and municipal plans and their integration into the permit review
process, are just beginning to be explored. Later sections of this chap-
er will discuss the present administrative structure under Act 250 and
some of the problems which are posed by the duty to develop, adopt, and
administer the plans themselves.
Maine's Two Land Use Laws
The Site Location of Development Law must be considered in con-
junction with the Maine Land Use Regulation Commission Law. Together
the two acts confer roughly the same powers as the Vermont statute and
incorporate many of the same mechanisms. However, there are differences
which may prove extremely significant when all three are in full opera-
tion. For example, the Maine laws reserve all decision-making to the
state-level agency, with no regional or district commissions and the
Site Location Law does not require a plan. The Site Location of De-
velopment Law is more spare in its statutory structure than the Vermont
law and is administered by a single agency, the Water and Air Environmen-
tal Improvement Commission. The Commission membership is specified un-
der other statutory provisions, and includes representative members
from industry, municipalities, the public, conservation interests, and
notably, two members knowledgeable in matters relating to air pollution.
Any commercial or industrial development that requires a license from
the Environmental Improvement Commission under other statutes, or that
would occupy a land area in excess of twenty acres, excavate or drill
3-11
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for natural resources, be occupied by a structure in excess of 60,000
52
square feet and which may "substantially affect" local environment,
shall "notify" the commission of the nature and location of the devel-
opment before commencing construction or operation. The Commission
must either approve the location or schedule a hearing within 14 days.
There are four criteria for approval of the proposal. It must
have (1) financial and technical ability to meet state standards for air
and water pollution, solid waste disposal, and maintenance of water sup-
,***
plies; (2) adequate provision for parking and traffic movement; (3) no
adverse effect on the natural environment; and (4) a location on suit-
able soil types. These standards are not only fewer in number but even
less specific in their language than those found in the Vermont legisla-
tion. The burden is upon the developer to demonstrate that all of the
criteria are met, and he is obliged to suspend operations pending the
hearings. The Maine law makes somewhat more specific provisions for
action by the Commission in the event that development is begun with-
out notification. These include public hearings, injunctions, and
54
orders to restore the area affected, and are to be enforced by the
Attorney General. There are no criminal penalties, as in Act 250, and
the Attorney General is empowered only to bring "an appropriate civil
action to secure compliance." One section provides for judicial re-
view by the Supreme Judicial Court; this and another section57 are
ro
the only ones which have received a judicial construction so far.
Generally, the Site Location of Development Law is directed at ma-
jor commercial and industrial undertakings, wherever they are in the
state. Other types of development covered by Vermont Act 250, such as
subdivisions and smaller commercial enterprises, are covered in Maine
3-12
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Dy the Land Use Regulation Commission but only if they occur in unor-
ganized portions of the state. The law regulating developments in these
59
areas is an extremely detailed, well-articulated statute which pro-
vides for planning at the statute which provides for planning at the
state level and gives to the state level agency the authority to des-
ignate four types of districts each representing a particular level of
permissible development. The statute lists five quite specific pur-
poses that the land use "standards" developed for these four types of
districts are to serve; these include the best use of resources, reduc-
tion of pollution , traffic planning, setting performance standards to
minimize adverse impacts on adjacent uses, and relating land use to the
natural resources base. These statutory standards, although general,
are also considerably more definite than those of the Vermont law, which
merely state the broad policies to be reflected in the land use plans.
The status of the Maine land use guidance districts and standards as
authority for local plans as municipalities become organized is very
clear, and the Land Use Commission is to retain jurisdiction of the dis-
trict until the local body adopts plans and regulations that are no less
* «-• 61
protective.
The Commission adopted interim districts and land use guidance stan-
dards in 1973 and final districts and standards after public hearings.
These provisions differ from those in Act 250 in several respects. Notice
of hearings on the plans must be given to affected property owners as
well as to relevant state and federal agencies, all of whom may be heard
and may file statements. The districts and standards are to be adopted
by the Commission, with no need for approval by the Governor or legisla-
ture, although a Comprehensive Land Use Guidance Plan must be adopted
3-13
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and approved by July 1, 1973 to guide the development of districts and
/- ^
standards. Procedures for changes in the boundaries and standards are
similar to those provided for in the Vermont law, including a showing
that conditions have changed, that the area is needed for a different use,
and in the Maine statute, that the area is not usable for the use in which
it is classified. Individual variances may also be obtained in Maine,
and there is specific provision for periodic review of boundaries and
standards.
The mechanism for control of land use in the Maine statute is
roughly similar to that of Vermont, as both depend upon the required
approval of development proposals. However, the Maine statute requires
permits for any construction on existing developments, any construction
or sale of an interest in a subdivision, or any construction or operation
of any development, apparently regardless of size. If the proposal also
requires approval under the Site Location Law, it is not exempt from
review under this statute but the hearing may be waived. Approval by this
Commission is prima facie evidence that the development meets the re-
quirements of the Site Location Law, unless the Environmental Improvement
Commission has already set general requirements which are more protec-
tive of the environment. The Land Use Commission is to hold hearings
on the application and to approve or disapprove it, giving reasons in the
latter case. The criteria of decision are given in virtually the
same language as those for approval of permits under the Site Location
Law, with the additional requirement of conformance with the duly adopted
interim or permanent land use guidance standards. The Commission may
also impose conditions, as in Vermont. The burden of demonstrating satis-
faction of all criteria lies upon the applicant. Changes in use or con-
3-14
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struction from those authorized by the Commission are considered vio-
lations, and can lead to revocation or suspension of the permit. In
addition, recordings of plats and subdivision conveyances must evidence
the Commission's approval, and are void if in violation of that provision.
The Land Use Regulation Commission has what should prove to be an
interesting addition to the powers available to the Vermont Board, the
power to regulate and prohibit expansion and undue perpetuation of non-
conforming uses. It also has a sizeable arsenal of enforcement tools
in addition to the voiding of plat recordings and conveyances. Use or
occupancy of land without a certificate of compliance is made unlawful,
and the standards, rules, regulations and orders of the Commission are
given the force of law. Any real estate or personal property in vio-
lation of the standards is a nuisance, and the Commission can institute
action for injunction or abatement. Other incentives for accomplishing
the purposes of the Act include acquisition of conservation easements
and the filing of district plans and standards with tax assessor offices
as an incentive to adjust assessment practices.
Unlike the Vermont statute, which makes only one general reference
on its face to air quality considerations, both of the Maine land use
statutes make the meeting of state air pollution standards an express
condition of approval. As will be seen below, Vermont has filled this
gap administratively in the process of permit review. However, under the
Maine Land Use Regulation Law it is statutorily required that the land
use guidance standards, which would be analogous to regulations developed
under Vermont's Land Use Plan, reduce air pollution as well as other
69
environmental "intrusions." The requirements for the Vermont plan in-
corporate air pollution considerations only by reference to additional
3-15
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permissible goals under another law. Another noteworthy difference with
respect to air quality considerations lies in the fact that precisely
the same body that regulates land use in Maine under the Site Location
Law also regulates air quality under another statute.
In sum, the Maine statutes taken together are similar to Vermont's
Act 250 in administrative structure, except for the lack of regional-
level review bodies, and the use of permits as a tool of control. The
most significant differences would seem to lie in the more comprehensive
jurisdiction of the Maine Land Use Regulation Statute and in the clear
power under the Maine statutes to designate land use districts in unor-
ganized areas under fairly well elaborated statutory standards. Since
the Vermont statute leaves the legal authority of its plans very unclear,
some questions arise about their ultimate effectiveness as tools for planned
control of land use and development. This possibility will be explored
below, and the Maine approach considered as an alternative. Unfortunately,
since both statutes are still in the early stages of implementation and
since no plans have been adopted under the Maine Land Use Regulation Sta-
70
tute and very few applications have been processed, it is as yet im-
possible to assess the relative practical value of the two laws.
ADMINISTRATIVE STRUCTURE
Under Vermont's Act 250
Although the imposition of the Act 250 permit system upon existing
regulatory programs created many duplications and left many unanswered
questions about what role the standards and regulations of existing pro-
grams were to play in the decisions of the District Commissions, some
potential difficulties were avoided by the simultaneous administrative
reorganization of the state government. The same legislative session
3-16
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71
that passed Act 250 created the Agency of Environmental Conservation,
which incorporated the Environmental Board as well as various state
agencies that had traditionally been concerned with conservation. All
the powers of those departments were vested in the Secretary of Environ-
mental Conservation, except for those of the Environmental Board, and
72
the Fish and Game and Water Resources Boards.
The Act also created a Division of Protection, which functions as
the enforcement arm of the Agency , and delegated to the Division those
activities previously under the Department of Health which concern water
and air pollution, waste disposal, and the granting of permits. The
Division of Protection is to perform other duties prescribed by the
Secretary, including the enforcement of the rules and regulations of any
agency or board within the Agency of Environmental Conservation. This
deceptively simple administrative creation of the legislature appears
to have been the focus of efforts to create an integrated and uniform
approach to land use decisions under Act 250.
Once an application has been filed with the regional environmental
coordinator (acting as staff for the District Commission) and notice
served on the statutory parties, copies of the application are routed
both to the Environmental Board and the "environmental advisor" (a state
forester). The latter makes on-site inspections, advising the applicant
74
in the application process as well as reporting to the District Com-
mission. The Environmental Board forwards a copy to the Act 250 Review
Committee, a body created to provide the technical expertise of the rel-
evant conservation agencies to the District Commissions. The Review Com-
mittee originally consisted of representatives from all state agencies
having a continuing interest in land use control. It has recently been
3-17
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expanded by the governor to involve all state agencies, including Taxes
and Education, although it will now only review applications of some im-
75
portance.
The actual process of obtaining state agency opinions on an appli-
cation's conformance with the criteria of Act 250 is handled by the Land
Use Adminstrator within the Division of Protection. The Division formulates
a position paper incorporating agency opinions for consideration by the
Review Committee and forwards the result to the District Commission
before the date of the hearings. The recommendations of state regulatory
agencies, like the ultimate decisions of the District Commissions, ordin-
arily consist of a set of proposed conditions rather than a flat approval
or denial.
Additional opinions and information may be provided at the hearing
by regional or local planning commissions, although the regional plans
7A
are usually too general to offer realistic bases for decision and local
77
plans, although more specific, often do not exist. ' Apparently it is
also the case that municipalities and their representatives are frequently
unfamiliar with Act 250 and its functioning, as well as with the land
use controls which antedated Act 250, so that local participation in the
78
hearings is less complete than envisioned by the legislature.
The tendency to grant conditional permits ,rather than to deny approval
entirely, indicates that Act 250 is viewed, at least, at the state agency
level, as a tool for obtaining control of development in order to ensure
compliance with state environmental standards. Presumably because the
state plans have not yet been in operation for very long, the permit re-
view process is not regarded as a vehicle for the implementation of plan-
ning.
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Since the Protection Division also administers the permit review
process under other land-vise related programs such as public buildings
permits (which includes virtually every building except barns), subdi-
visions, sewage disposal, mobile homes, and air pollution and solid waste
control, it can and does function as a clearinghouse for the multipli-
city of permits that new projects require. Although the lines of auth-
ority for this "clearinghouse" function have not been formally established,
79
either administratively or legislatively, the permit-processing activ-
ities of the Protection Division and the technical assessment through
the Act 250 Review Committee clearly serve not only as a source of ex-
pertise and coordination of policy but also as a point at which many, if
not all, of the statutory and regulatory standards applicable to a devel-
opment are adminstratively coordinated.
Nonetheless, the multiplicity and duplication of permits required
80
for development are a continuing concern to those administering Act 250,
and there is a general sentiment for some form of permit consolidation.
Several suggestions have been made concerning the form such a consolidation
might take. According to the Director of Protection, a possible mode of
alleviating the current lack of a unified set of standards for review of
a project would be legislation that allowed state agencies to grant
permits only to projects conforming with local and regional plans. In
this case, on the theory that the permanent state plans were in some
sense binding upon local planning, the review tasks of the Division of
Protection would be vastly simplified by being able to refer to a single
set of overall standards, whatever the specific permit for which appli-
cation is made. As will be seen below, this possibility is a remote one.
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Another possibility lies in the statutory power of the Environmental
Board to rule that the permits of other environmental control programs
may serve as prima facie evidence of compliance with the criteria of Act
250 on the point in question. Permit consolidation under this statutory
power and the regulations of concerned agencies has,, in fact, been the
route taken. The Environmental Board has already moved in the direction
of consolidation by establishing joint sessions with the Water Resources
Board in order to coordinate policy and develop a single set of standards,
eventually making it possible to accept a waste discharge permit from the
SI
Water Resources Board as prima facie evidence of compliance with the Act.
In a similar development, changes in the Air Pollution Control Regula-
tions, effective June 5, 1972, allow permit consolidation for those seek-
ing an Act 250 permit and an application for "additional air contaminant
information." The applicant nr. submit solely to the Act 250 District
Commission as long as the information he supplies meets the requirements
of the air pollution statute and regulations. The Division of Pro-
tection reviews the application and informs the District Commission on
what terms to issue the permit. In Vermont the Act 250 permit review
process has become the primary mechanism for review of new contaminant
82
sources.
The most recent draft of the regulations of the Environmental Board
allow for a master permit application which simultaneously fulfills the
application requirements of Act 250, the public building regulations,
subdivision regulations, mobile home park regulations, and tent and
trailer regulations. The Board takes fulfillment of the specifications
of the other permits as prima facie evidence of fulfillment of Act 250
83
requirements on the relevant point.
3-20
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The number of permit applications under all of the land use programs
administered by the Division of Protection is increasing at a great pace.
Df course, it is difficult to tell whether this is due to the pace of devel-
opment or to better identification of projects that must meet the various
standards. Whatever the reason, applications in the Technical Review
Section of the Division, which administers subdivision and building per-
mits as well as sewage disposal, rose from 450 in 1971 to 866 in 1972.
84
Permit applications under the Air Pollution Section rose from 24 to 262.
Cases reviewed under Act 250 by the Division rose from 365 to 540 in 1972,
and to an estimated 1,400 in 1973.
Clearly, the need for some reduction in the number of required per-
mits and in the morass of duplicate and overlapping jurisdictions and
multiplicity of regulatory standards is an important issue which has been
uncovered by the effort to administer Act 250. According to the adminis-
trators of the Act, much of the hostility to permit review under Act 250
has arisen from a lack of familiarity with pre-existing land use laws
and the consequent conviction that the permit confusion was a product of
Act 250. Despite the apparent confusion, however, Act 250 has served well
in obtaining control of development, so that compliance with state stan-
dards under other statutes affecting land use has reached a much higher
-, i , r 86
level than before.
The theory that Act 250 was designed to discourage development across
the board, and hence that the burdens of the permit process are immaterial,
doe^ not appear to be shared by the personnel of the Environmental Con-
servation Agency. Aside from their specific desire to see the permit
system streamlined, there seems to be a general concern that the entire
permit system, especially under Act 250, should function as an educational
3-21
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process which will result in developments that are technically, aesthetically,
and ecologically satisfactory, rather than as a mechanism to prohibit devel-
opment .
Experience to date suggests that although development has been brought
o 7
close to a halt in some areas this is relatively uncommon. There is ev-
idence for this point in a study of the early period of the Act's admin-
istration which came to the conclusion that the Act had no appreciable
impact on the rate of development and that most of the apparent slowing
QQ
effect was attributable to the general state of the economy.
This compliance-oriented attitude is also reflected in the statistics
on the permits processed by the District Commissions, which relatively
seldom result in outright denials. In the first year of the Act's admin-
istration, 326 applications were processed, but only 11 were rejected in
89
their entirety. In the second year only 27 out of 866 were rejected.
In the third year, out of 1,145 applications acted on, only 33 were denied.
Although the Division of Protection is empowered to enforce the rules
and regulations of the boards it serves, it has undertaken no criminal
prosecutions and relatively few civil actions under Act 250, preferring
91
to use the threat of such sanctions to obtain compliance. Only one case
92
of criminal action has arisen—for gross violation of the terms of a permit.
To some extent the lack of criminal prosecutions arises form the difficul-
ties the Division of Protection faces in terms of personnel and funds for
follow-up procedures. However there is also some difficulty in gaining
the attention of the state's Attorneys who are also understaffed and under-
financed and hence inclined to leave environmental cases low on the list
, ... 94
of priorities.
This is not to say that the conditioned permits suggested by the Act
3-22
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250 Review Committee and relied upon by the District Commissions are with-
out the support of legal and administrative enforcement techniques, but
these techniques are aimed at inducing compliance rather than punishing
non-compliance. The assurance of discontinuance provided for by statute
has proved to be a useful tool for inducing compliance with the three major
environmental laws; it enables the Division of Protection to "lean" on the
violator to obtain the equivalent of a compliance or abatement schedule.
It also has the advantage that the "assurance" is filed in court and can
be rapidly acted upon, since violation of the terms of the assurance is
prima facie evidence of violation of the statute. The Division of Protec-
tion also finds that simple notices of violation are frequently sufficient
to induce compliance, and it is seldom necessary to reach the point of
95
issuing a cease and desist order. One reason for the infrequent use
of such orders is the feeling that they must be justifiable in court on
the basis that the violation is causing "irreparable damage."
The Environmental Board has also made little use of its statutory
power to obtain injunctions. This has been due in part to the relative
unavailability of the services of the Attorney General's office as mentioned
above, but more importantly results from certain aspects of the process
of obtaining injunctions which have frustrated attempts to prevent envi-
ronmental degradation in Maine as well. The measured speed at which the
courts move often means that projects challenged by the Environmental
Board are largely completed by the time the case comes before the courts,
and traditional judicial reluctance to disrupt the status quo without
a showing of "irreparable harm" in effect shifts the burden of proof
from the developer to the Environmental Board. Lacking the funds and
personnel to develop evidence for such a showing, the Board has instead
3-23
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relied on the administrative remedies discussed above.
Despite the lack of effective remedies for preventing unacceptable
development and the relatively heavy reliance on post-violation administra-
tive sanctions, the administrators of Act 250 feel that the pre-hearirig
stages of the permit review process have considerable impact on develop-
mant proposals even before the hearing stage is reached. The fashioning
of sophisticated and environmentally sound plans, especially amongst
smaller developers who lack the resources for such planning themselves,
has been an unexpected but gratifying side effect of the administration
97
of Act 250, even before the enactment of substantive planning guidelines.
The compliance oriented approach is carried through to the hearing
stage. Those who administer the permit application process appreciate
the informal nature of the initial hearing procedure. Although the hearings
frequently involve interested parties and expert witnesses from state
agencies, in the early period of Act 250's administration, they seldom
no
involved the presence of counsel. However, this practice is changing
as developers rely more heavily on counsel and the Environmental Board
is more frequently cast into an adversary role at District Commission
hearings. At such times the Board will ask to be represented at the hear-
ings by the Land Use Administrator or by counsel to the Agency of Envi-
99
ronmental Conservation.
After receiving the recommendations of the Act 250 Review Committee
and holding the hearing, which is done more or less automatically although
not required by law, the District Commission will issue findings of fact and
law and will ordinarily grant the permit with conditions attached. Ac-
cording to one observer, the Environmental Board has moved slowly
in developing substantive guidelines for the imposition of conditions on
3-24
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the permits, and so far the District Commissions have relied on Model
Subdivision Regulations, the regulations of the Water Resource Board,
and Environmental Board guidelines on power line emplacement.
Since permanent plans have only recently been enacted, and as
the Environmental Board is still in the process of developing rules for
implementing the plans, the District Commissions have been quite free to
develop their own standards and to impose conditions according to their
own judgement of the needs of the situation. In fact, in one of the few
cases which have been appealed to the Environmental Board, the decision of
the District Commission was reversed on the grounds that it established
conditions that were more restrictive than the standards of the appro-
priate state regulatory agency. This situation may change after the per-
manent land use plan is adopted.
In fact, the Board's conception of its role with respect to District
Commission decisions is already changing, possibly as a function of the
adoption of the Interim and Permanent Capability and Development Plans,
but clearly as a function of gaining administrative control of the permit
review process and integrating it with other state permit review programs.
At this point the Board feels that it is in the forefront of environmental
protection in Vermont and that it can and does impose more restrictive
conditions on Act 250 permits than would be required by the relevant
regulatory agency when there is no other way to justify a finding of "no
i no
undue adverse effect" under the Section 6086 permit criteria. An inter-
esting effect of this change in the Boards's attitude toward its regulatory
role has been an administrative reinterpretation by other land use concerned
agencies of their own regulations to conform to the standards of Section
6086 of Act 250.103
3-25
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On the other hand, the initial review by the state-level agencies
tends to place some constraints on the Commissions' rulings. It became
clear early in the history of the District Commissions that they, as well
as the Division of Protection, were performing a clearinghouse function,
using the recommendations of the Act 250 Review Committee to guide the
developer into conformance with the multiplicity of existing state stan-
dards. The reliance on these recommendations also allows the Commis-
sions to achieve a certain degree of uniformity in the decisions of the
various districts. The Review Committee was instituted partly for this
reason, since some of the early district level decisions were felt to be
both technically and substantively inadequate. J Thus, although the
District Commissions were created specifically for local participation in
the process of making land use decisions, the administration and devel-
opment of substantive and technical standards has been centralized to a
considerable degree. This can be partly explained by the lack of muni-
cipal and regional planning in many areas and by the generality of the
planning where it does exist,as well as by the reluctance of local offi-
cials to participate in the hearings.
The anomaly of the District Commissions' functioning as clearing-
houses for state agencies may be resolved by the adoption of the perman-
ent land use plans and maps and by the Environmental Board rules implementing
them. Possibly the plans will give the Commissions guidelines on state
land use policy tailored to their areas, thus allowing them more oppor-
tunity for substantive consideration of a project's value in the light
of local conditions and eliminating the need for a series of ad hoc
decisions on state policy for every project. However, since there is
some question whether the permanent plans will reach this level of speci-
3-26
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ficity, it is possible that the plans will not provide such a means of
achieving consistency with statewide goals without sacrificing local par-
ticipation in the review process.
Act 250 and Air Pollution Control in Vermont
In considering applications for projects which may lead to an air
pollution problem, the District Commissions have been quite free in im-
posing conditions the few times such an issue has arisen. In one recent
case, a proposal to build a temporary asphalt plant, a requirement of
a source test before commencing operation was made by the District Commis-
sion. In another very early decision, the District Commission imposed
ten different conditions upon the Spruce Tissue Mills Plant in Bennington
County, a large project which was sponsored by the Bennington County In-
dustrial Corporation. Most of these conditions were detailed require-
ments for compliance with state water pollution standards, but they inclu-
ded a requirement of compliance with current air pollution regulations
and a further prohibition against using any fuel other than No. 2 fuel oil.
These conditions were appealed by the corporation and were rewritten by
the Environmental Board on the grounds that the fuel requirements, as well
as several of the water pollution requirements, were more restrictive than
the existing regulations of the Department of Health and the Department
of Water Resources. At that time state officials considered it question-
able whether the Commission had the legal authority to make a substantive
decision that was more stringent than existing regulations, and believed
that the District Commission was only empowered to assure that the proposed
fuel system would meet the standards of Vermont's 1968 Air Pollution Control
107
Act. As noted above, this attitude has changed considerably.
Conversely, the state level authorities felt that the conditions
3-27
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imposed in the asphalt case were not adequate. The Air Pollution Control
Division claimed that the proposed emission control devices were not suf-
ficient to meet state regulations, that adequate devices did exist, and
that the source test after construction would be an inadequate measure.
Rather than going through the appeals process, the Division of Protection
obtained from the company a "Stipulation to Operate" in which the company
was required to obtain a particular form of emission control device,
to present evidence of its purchase and delivery by a certain date, to
perform a source test, the results to be submitted to air pollution control
1 0$
officers, and to comply with the performance standards of the State.
The jurisdictional overlap characteristic of the land use control
programs in Vermont is evident in this exchange, since the letter was
actually sent by another section of the Division of Protection, although
the application was pending under the Act 2:'0 permit process. In general,
the administrative integration of air pollution control and land use con-
trol in Vermont is mediated by the Division of Protection. In addition to
consolidating permit review under Air Pollution Regulations, the di-
vision can send applications to the Air Pollution Control Section for
consideration through the Act 250 Review Committee mechanism. In this
case, the Air Pollution Control Section functions as consultant to the
Act 250 Review Committee and the District Commissions in responding to
the permit application directly, or it may be asked by the District Com-
mission to function as its staff with respect to air pollution control
.. , ,. .. 110
issues in a. particular application.
Aside from these administrative measures, however, the two statutes
create two overlapping jurisdictions over new construction that might
emit air pollutants. The Air Pollution Control statute is not limited
3-28
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to developments of a certain size, and at the moment the regulations re-
quire "applications for information" concerning construction of additional
air contaminant sources only for certain listed industries and installa-
tions required to meet federal performance standards under the Federal
Clean Air Act. These industries must give notice to the Air Pollution
Control Officer before undertaking the construction of new or additional
contaminant sources and may be required, as a condition precedent to con-
struction, to submit plans and specifications. The Air Pollution Control
Officer may issue an order approving or prohibiting the construction if
it is in violation of applicable regulations or if it will interfere
with the state's air pollution control strategy or with the maintenance
11?
of a national air quality standard. Approval may also be given upon
specific conditions.
An additional power held by the Air Pollution Control Division is
that of requiring written reports on point sources. In the case of new
point sources emitting greater than 100 tons of all pollutants per acre,
the report must include information on their impact on ambient air qual-
ity standards. Otherwise, the statute and regulations rely upon classi-
fication of sources and emission control requirements at the stack as
the enforceable tools of air pollution control.
Now that the full power of the Board of Health has been transferred
114
to the Environmental Conservation Agency and guidelines are being
developed for review of new contaminant sources, the Air Pollution Con-
trol Agency would seem to have very broad powers over land use decisions
affecting air quality. However, it is difficult to say what the poten-
tial impact of these powers is since they were exercised to a negligible
degree when the air quality control program was administered by the
3-29
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Board of Health, and since the ambient air pollution levels in Vermont
would not ordinarily require reliance on land use controls.
In 1972 it was felt that existing air pollution regulations, coupled
with the power of pre-construction review of major sources under the Air
Pollution Law, were sufficient to Vermont's needs,. However the regu-
latory structure of Act 250 has made it an attractive alternative route
for control of new installations, since it gives somewhat more control
over purely visible pollution under the criteria of Section 6086 and be-
cause of the sheer efficiency of the Act's integrated administrative
structure. The State Air Pollution Control Officer estimates that 90
percent or more of new contaminant sources have been "captured" and re-
viewed in the past year through the Act 250 mechanism rather than through
the regulatory structure of the Air Pollution Control Act. The Direc-
tor of the Agency of Environmental Conservation and the Air Pollution
Control Officer still retain their powers under the Air Pollution Control
Act and can exercise them over construction proposals that escape the
jurisdiction of Act 250, but they have been able to rely to a great ex-
tent on the Act 250 review process, with a considerable saving in admin-
istrative personnel and energy. Channeling the expertise of the Air
Pollution Section into District Commission has not proved unduly difficult,
requiring at most some educational efforts at hearings. Conceivably
the jurisdictional overlap between the two statutes and the administra-
tive solutions to the problem could result in some confusion and legal
challenges by regulated industries and developers, but at the moment the
system seems to be working smoothly.
Although it has not previously been necessary in Vermont to include
air quality considerations in the planning process as well as in the reg-
3-30
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ulatory process, recent developments in the courts and the regulations
of the Federal Environmental Protection Agency may require Vermont to take
a new look at this aspect of state-level planning.
As noted in the last chapter, two recent court decisions have re-
sulted in the Environmental Protection Agency's requiring of some states
that their implementation plans include land use and/or transportation
control elements. These implementation plans must now prevent "significant
degradation" of air quality districts that already meet or surpass federal
air quality standards. The Environmental Protection Agency has proposed
118
four alternative regulatory mechanisms for meeting the rather unclear
standards of no "significant degradation" set by the courts. One pro-
posal would involve the relevant state agency's designating various areas
of the state as falling within one or two air quality "zones."
The implications of such a regulation for state land use planning are
potentially immense and the relevant Vermont agencies have responded ac-
cordingly. The Air Pollution Control Section and the Legal Services
Division of the Agency of Environmental Conservation, with the aid of the
Land Use Administrator, are cooperating in developing "complex source
regulations." This regulatory approach will obviously involve Vermont
in land use planning for air quality control, and satisfying the new regu-
lations will presumably be a factor in permit review under Act 250. At
the moment, however, such planning considerations are not being integrated
into the overall state planning for the permanent land use plan.
Maine's Administrative Structure
Some of the administrative difficulties in Vermont appear to have been
avoided by the Maine laws, only to be replaced by others. Since the Site
Location Law is administered by the same state agency administering the
3-31
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air pollution law and numerous other aspects of the environmental and land
use control efforts of the state, there is a unity of authority and
streamlining of administrative efforts established legislatively. On the
other hand, the legislatively established structure and more restricted
criteria for permit review present some difficulties by limiting the options
available to the Environmental Improvement Commission, especially in im-
posing conditions. However, as the Site Location Law is not currently
regarded as zoning or land use controls legislation, the more rigid sta-
tutory structure and criteria may not be felt to hamper flexibility. The
Site Location Law is seen rather as granting regulatory power, applied alike
to all parcels of land, while planning and zoning powers are conferred under
the Land Use Regulation Law.
Since the Site Location Law only provides for a fourteen day period
between receipt of the application and a decision on the permit, several
devices have been adopted to decrease the burden on the Environmental
Improvement Commission that would result from attempting to hold hearings
immediately in all cases. A recent legislative amendment was obtained
allowing the Commision to delegate its hearing powers, and the Commission
has been allowed to count the fourteen day period as running from the date
of receipt of the completed application, rather than from the date of
application. Since the application which the developer must submit is
lengthy and detailed, it obviates the need for hearings in many cases,
especially in combination with review reports from other state and local
planning and regulatory agencies. The burden of obtaining these review
reports also lies upon the developer, so that the actual function of the
Commission is largely limited to a quasi-judicial role with little use
120
of investigatory powers.
3-32
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The pressure of time also influences the Commission to grant condi-
tional permits without a hearing rather than to deny them. These
conditions must be justifiable under the statute on the basis of a clear
danger to public health and safety and are ordinarily limited to such his-
toric police power concerns as air and water pollution. Some of the con-
ditions are standard requirements for obtaining necessary permits, and
specific conditions are usually imposed upon the recommendation of rele-
122
vant state agencies, who may thus enforce environmental criteria which
ordinarily are only advisory. Thus, the Commission routinely requires
that sub-surface sewage disposal conform with the recommendations of the
Soil and Water Conservation Commission. The Commission's own guidelines
for reducing environmental impact have the status of formal regulations.
The Commission has also been cautious about denying permits outright for
123
substantive reasons, and this practice parallels that of the Vermont
District Commissions.
The statute is somewhat unclear about whether the developer must
comply with state environmental standards in order to obtain a permit
or merely demonstrate that he is capable of so doing. These standards are
therefore enforced either by making compliance a condition of approval
or by treating the application as an undertaking to meet the standards,
so that the developer would have to comply in order to meet the terms
of his permit.
Actual enforcement usually takes the form of court action under the
Site Location Law. This is regarded as a satisfactory technique, although
it is hampered by the need to show that the state has standing to sue,
and especially by the traditional requirement of a showing of irreparable
harm to the environment. One commissioner feels that the balance
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struck in injunctions issued after the damage is done favors a developer.
Injunctions would be a more effective tool if violations of the terms of
the permit or a failure to notify the Commission under the statute were
a sufficient basis for issuing a temporary or permanent injunction in a
court of general jurisdiction. As the practice stands, the developer
can continue until the state can make a showing of special damage. By
that time, reversing the process or disturbing what is already accomplished
is not usually an attractive alternative to the courts, and the compro-
mises they reach are generally less protective of the environment than
12S
they would have been if the injunction were issued at an earlier time.
State level administration is believed to be a great advantage by
the Commission, allowing an integrated set of standards to be applied and
removing the review process from local pressures favoring development.
On the other hand, the statutory provision for members representative
of various interest groups in the state tends to dilute this advantage,
since these members are apt to feel that they have a constituency whose
interests must be considered even when in conflict with the purposes of
the Site Location Law.
There have not been a great many applications processed under the
Law, which might be accounted for by the fact that the Site Location Law
primarily affects large industrial developments of more than 20 acres
or 60,000 square feet of floor space, and that Maine has been affected
by general economic conditions reducing major economic development. It
could also be that the lack of a link to the recording of plats and con-
veyances, which exists in the Vermont and Maine Land Use Regulation Laws,
leaves the Commission dependent on self-reporting by developers and the
alertness of other state agencies and citizens, and that this is not an
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adequate tool for identifying new development. However, the work of the
Commission in its first year was felt to be highly effective, and one ob-
server concluded that the small number of applications processed could
be attributed to the Commission's initial reluctance to exercise its jur-
127
isdiction freely, especially in urban areas.
The Maine Land Use Regulation Law is still in its infancy, and rela-
tively little development is going on in the unorganized areas of Maine to
which it applies. According to the Director of the Land Use Regulation
I OQ
Committee, only one application that could properly be called a devel-
opment under the statute has been processed, and the remainder of the
applications are for building permits or subdivisions. The Commission's
efforts are primarily devoted at this time to developing interim stan-
dards and districts, mandated by the law by 1973. No specific consideration
is being given to air quality management, which will probably be dealt with
by reference to the regions and standards developed by the Bureau of Air
Quality Control of the Department of Environmental Protection. The Site
Location Law also relies on the expertise of this agency in formulating
its decisions, so in this area there is a functional as well as theoretical
correlation of the standards applied under both of Maine's land use laws.
Otherwise, correlation of the two laws relies upon the identity of
their permit criteria, and upon the provision of the Land Use Regulation
Law which allows approval by the Land Use Commission to serve as prima
facie evidence of compliance with the Site Location Law. This is an at-
tempt to eliminate duplication of applications rather than to coordinate
planning and land use control.
Since the Site Location Law, like the Vermont law, was passed in a
period of response to a perceived environmental crisis, there was some
3-35
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feeling initially that it might not prove to be an enduring solution to
the problems of land use control. However, the existence of the Land
Use Regulation Law and its plans and the difficulty of confining pollutants
within jurisdictional lines may ultimately exert considerable pressure
to bring the broad powers of the Site Location Law into line with a com-
prehensive state plan. One Commissioner believes that the need to
centralize planning and expertise in the field of environmental control,
which has already led to the creation of environmental super-agencies
even in such relatively unpolluted states as Maine and Vermont, will
ultimately bring the Land Use Commission into the orbit of the Environ-
mental Protection Department. Comprehensive land use planning and control
for all areas of the state will then be administered by that agency. This
132
opinion is echoed by the Land Use Regulation Commission.
THE ROLE OF PLANNING IN LAND USE CONTROL
State-wide Land Use Control?
The real test of Vermont's Act 250 as a tool for rational land use
control will come as the permanent Capability and Development and Land
Use plans are adopted and put into use. These plans are the crux of the
many important issues involved in the attempt to control land use at the
state level. The most immediate question necessarily concerns the extent
to which the plans can or should be regarded as state-wide land use
control, both under the statute as well as in the broader context of poli-
tical realities and the traditional allocations of power over land use
decisions. A corollary problem arises concerning the role of the state,
regional, and municipal plans, as well as the plans and standards of other
state level agencies that regulate land use. The most intriguing issue
from the standpoint of the control of environmental quality is undoubtedly
3-36
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the question of the legal effect of these plans on permit decisions.
There is wide agreement that Act 250 was regarded by those who
enacted it as conferring zoning powers on the Environmental Board, or at
least conferring authority to designate land use districts and standards
which would roughly approximate zoning powers. The Executive Director
of the Environmental Board believes that this was the case, as do members
of the State Planning Office working on the permanent plans. However,
some of those responsible for developing the plans now believe that such
specific land use decisions are not practical either in terms of the
ability of a state level agency to make such precise decisions or in
terms of the possibility of having such specifications approved by the
134
legislature.
The statute itself provides some support for the notion that virtual
zoning powers were intended, since one section envisions actual land
use maps. (However, the last sentence of the section clearly distingui-
shes "zoning" at the local level from whatever it is that the land use
maps are expected to accomplish.) Most notably, another section provides
for rather elaborate procedures for obtaining changes in the boundaries
of the land use plans, implying that the districts and standards established
by the Environmental Board are to have more than advisory effect. Under
this section, any state or local agency, or property owner or lessee,
1 TO
may petition for a change in the boundaries or in designated capabili-
139
ties. After forwarding a copy to the regional or municipal planning
bodies and the District Commissions, the Board is to hold hearings, and the
petitioner must meet a rather severe burden of proving that the area is
needed for a use other than that for which classified, that it is usable
for the proposed use, that conditions have changed since the original
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140
classification, and that the proposed classification is reasonable.
The unsuccessful petitioner may appeal the decision to the Supreme Court,
as in permit applications. These requirements assume that more definite
classifications will be developed under the plans and that they will have
more authority over the use of lands so classified than would appear to
141
have been intended from the broad language of the statute. Perhaps one
can only conclude that the legislators were not entirely clear about the
nature and possible scope of the act they were passing.
Presumably the intention of the legislature may become signigicant
at some later date if the provisions of Act 250 are challenged in the
courts. In the meantime, the interpretation of those responsible for
the development of the plans and administration of Act 250's regulatory
scheme is the more relevant, and the personnel of the State Planning
Office, the Environmental Board, and the Division of Protection are vir-
tually unanimous in their conclusion that the permanent plans will not
be equivalent to statewide zoning. In some cases it is felt that they
will have no binding effect at all. According to the former Executive
Director of the Environmental Board, the interim plan would have no legal
force at all and the final plans would have to be so innocuous in order
to pass the legislature that they would offer little guidance to the
142
District Commissions in actually passing upon permit applications.
The Chairman of the Act 250 Review Committee regarded the plans as having
little practical effect on the recommendations of that body, which relies
upon much more specific plans developed by the planning body attached to
143
the Agency of Environmental Conservation.
The Land Use Administrator for the Division of Protection also
noted that although the Interim Plan had not been in effect long enough to
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judge its effect on the permit review process, a permanent plan that
144
was no more specific might well result in a greater number of appeals.
This apparently has been the case with District Commission decisions
based upon the extremely broad statutory criterion concerning rare and
irreplaceable areas, most notably with the Ryder Pond case.® The
Land Use Administrator felt it quite possible that the generality of
the Interim Plan would not have provided an adequate basis for permit
decisions by the District Commissions. There seems to be some agree-
ment that the policy statements of the projected plans as well as those
in the Interim Plan will not be sufficiently tight to permit denials of
permits on the basis of some kinds of considerations, e.g., densities
of development. However, it is intended to make the policies suffi-
ciently definite to serve as a basis for drawing up rules to guide the
District Commissions in judging applications, and current formulations
of the Plan hope to provide sufficiently refined policy statements to
be legally enforceable, giving some general substantive standards which
148
can be refined by subsequent regulations.
The Interim Plan
According to the State Planning Office, the Interim Land Capability
Plan of 1972 was a prototype of the form to be taken by the permanent
149
plans, as well as a substantive model under the statute. The Interim
Plan consisted of an inventory of the present capabilities and limitations
for development of the state's land and waters. The inventory was divided
into three sections, "Generalized Land Use," "Physical Limitations for
Development," and "Unique or Fragile Areas." Each section was accompanied
by a map that showed the distribution of the item inventoried throughout
the state. More detailed maps for each county were also made available.
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The Interim Plan diluted its own authority in an introductory
statement on its use, claiming that it was intended only as a "guide"
to the District Commissions and the Environmental Board and that its
maps and inventories were to be used only as "supplementary information."
It further restricted the Plan's usefulness as authority for District
Commission permit decisions:
"... Because of the broad statewide scale of this plan
and possible resulting imprecision in mapping, conformance
with the Plan and Inventory will by determined by the Dist-
rict Environmental Commissions and Environmental Board only
after authentification and verification of the land capabil-
ity categories depicted on the maps at the site of the pro-
posed development project."
Following this discussion of its own reliability and authoritative-
ness, the Plan listed eleven Policies, which were virtually the only re-
commendations it contained. These governing ideals were in some cases
merely expanded versions of the criteria already embodied in the statute
Section 6086. In general, the listed policies were little more than
exhortations for renewed efforts to solve major environmental problems
such as recycling, strip development, absorption of the population ex-
plosion, and the conflict between the need for development and the bur-
den such development places on the environment.
The Permanent Plans
Although the development of the permanent plans has undergone and
continues to undergo many changes, the permanent Land Use Plan will remain
on roughly the same level of specificity as the Interim Plan and the
permanent Capability and Development Plan adopted in the last session
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of the legislature. There are several reasons why land use classifi-
cations and development standards will be no more specific in the final
plan. The most basic reason is the statutory requirement that the Land
Use Plan be based on the Capability and Development Plan and that it
consist of "a map and statements of present and prospective uses which
152
determine in broad categories the proper use of the lands in the state."
Although the Environmental Board hopes that the final plan will provide
a system of land use classification that will reflect state environmental
policies and planning objectives and allow for substantive constraints on
uses as well as the application of state standards regulating the quality
of the uses which is now possible under the Capability and Development
Plan, it seems likely that this hope will not be fully realized. There
are practical reasons limiting the effecti/eness of the classifications
developed under the permanent Land Use plan aside from the political reali-
ties symbolized by the recent amendments which limited the authority of
the Land Use plan to developments falling within the jurisdiction of Act
250 review and made its classifications subordinate, in most cases, to the
154
provisions of regional and local plans. A practical obstacle in the
development of the final plan arises from the lack of complete or suffi-
ciently small scale survey maps of the state of Vermont. Such a lack pre-
sents legal as well as planning difficulties, since the classifications
drawn must provide a sufficiently definite and rational basis for state
limitations on the use of land, as well as to provide a sound basis for
decisions implementing planning policies.
The task of specifying the standards and policies outlined in the
plans will be left to the rule-making authority of the Environmental
Board, which will develop rules to guide the District Commissions in
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passing upon development permits. The existence of the plans and the
fact that they will have been adopted by the Legislature should enable
the District Commissions to make a larger number of substantive decisions
on development rather than merely applying the standards borrowed from
a medley of state agencies. As noted above, this process is already
occurring to some extent, possibly as a result of the adoption of the
Interim Plan in 1972. However, the extent to which the permit review
system will ultimately reflect the state plans and the extent to which
the state plans will affect decision-making in other state agencies and
local bodies, and thus the actual patterns of land use in Vermont, depends
on many factors. At least as important as the actual content of the per-
manent plans will be the measures taken to make them an authoritative
rather than an advisory influence on all land use decisions in Vermont.
The permanent Capability and Development Plan adopted by the Ver-
mont legislature in its 1973 session warrants examination not only because
of the substantive environmental policies it embodies but also because
of its unusual role as a statutory realization of planning objectives.
Thus not only the merits of those objectives must be considered, but also
the possible difficulties of implementing them that may arise from the
statutory form in which they are presented.
As law, the Capability and Development Plan consists of a substantial
expansion and elaboration of the criteria of Sec. 6086 which function as
standards of decision in District Commission review of permit applications
(see Appendix A). The new provisions cover such specific areas as water
pollution, the impact of growth, and permissible development on prime
agricultural land. The provisions are cast in the form of fairly broad
conditions which must be met by applicants before the Commissions can make
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a finding of no undue effect on the state's environment in that specific
area. The actual planning goals and principles of the Plan are contained
in the "legislative findings" of the act, and the District Commissions
are specifically prohibited from using those findings as criteria of de-
cision in permit review.
As statutory standards for the granting of permits, these provisions
are perhaps unusual only in the type and scope of criteria that must be
met. However, as a planning document they present some problems that can
be exemplified by considering their role as embodiments of policy.
The expanded criteria of Section 6086(a)(1) are interesting primarily
because they include many environmental considerations affecting the pre-
servation of Vermont's water supply and natural streams and shorelines.
They may raise some questions about the validity of the exercise of the
police power to regulate the aesthetic and ecological quality of the state's
environment. This question is more squarely posed, however, by the ex-
panded provisions of Section 6086(a)(8). The vagueness of the original
1 ry
section had already been attacked in the Ryder Pond case, and this
problem was not solved by the addition of a specific provision that a
permit can be denied if a showing is made that the proposed development
will affect natural habitats or endangered species. The new provision
is a noteworthy extension of the traditional conception of the police
power. Although there is some support in the Vermont cases for such an
exercise it is expected that developers will attempt to "challenge it.
The section has already been invoked to prevent a residential and recre-
ational development which would destroy a winter deeryard, but the legal
outcome is still unclear.
Section 6086(a)(9) is, of course, the heart of the Capability and
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Development Plan as a statute, and presents some of its major anomalies
as a plan. The fact that the policies represented by the substantive
criteria of this section are to be applied in an ad hoc manner to each
permit raises the basic question of whether such a mechanism will co-
herently implement those policies. When one considers the nature of some
of the criteria, such as settlement patterns and the use of prime agricul-
tural soil, the problem becomes quite acute. Conceivably the adoption
of the permanent Land Use Plan and its maps will resolve the problem,
since allocation of uses can then be determined beforehand. However the
form and content of the Land Use Plan, both as a statute and as a planning
document, will become extremely important if it is to effectively regulate
land use to achieve or maintain the environmental quality treasured by
Vermont.
The provisions in this section affecting settlement patterns dem-
onstrate this basic problem as well as raising some more specific issues.
The "Impact of Growth" provision in Section 6086(a)(9)(A) is the primary
vehicle of settlement policy. Although it lists numerous and extensive
issues to be taken into consideration with respect to population growth,
these considerations are broadly phrased and offer little as substantive
guidelines on state settlement policy. In addition, these matters are
only to be "taken into consideration" by the Commissions, unlike the
substantive standards of the other paragraphs of this section which are
put in the form of conditions that must be met by the applicant if a
permit is to be granted. The regulatory impact of the state's settlement
policy is further diluted by the provision that the burden of showing
an adverse impact of growth on the locality's financial capacities is
shifted to those opposing the permit.
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Paragraph (H) offers a clearer, albeit indirect, method of effectu-
ating a settlement policy against scattered development by requiring a
showing that the additional costs of providing municipal services to out-
lying developments will be outweighed by the public benefits generated
by the development such as increased employment opportunities. Section
(L) is also somewhat more straightforward than section (A) in imposing
a policy of controlled expansion in rural growth areas, although it is
also extremely general in its substantive standards.
Although a concern with settlement patterns is appropriate under
the language of Section 6042 of Act 250 and was given considerable im-
petus from the citizen Task Forces appointed by the Governor to supple-
ment the statutory hearings on the proposed Capability and Development
Plan, the enacted provisions are somewhat disappointing. Both the reports
of these groups and the results of the hearings revealed a general con-
cern over the continuing loss of agricultural and other open lands to
development. The diminished role of settlement policy in the adopted
Plan is regretted by some of those involved in its formulation, especialJ,
since the statutory provision that the Land Use plan be based on the Ca-
pability Plan may limit the extent to which settlement policy can be in-
corporated in the final plan in the series.
Understandably in a state whose economy is largely dependent on
agriculture, forestry and scenic beauty, the legislature enacted more
stringent and well-defined conditions for the granting of permits affecting
these areas of the state's environment. Thus if a proposed development
will reduce the agricultural potential of prime agricultural soils, the
applicant must show that there is no other way to realize a return on the
land, and that he has no other land suited to development, and that the
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development has been planned to minimize the reduction in agricultural
potential, and that the development will not reduce the actual or poten-
tial agricultural use of adjoining lands.
Coordination of State, Local, and Regional Planning
Originally, Act 250 presented an anomalous situation in that it
required that District Commission decisions conform with local plans,
but there was no requirement that local plans be created, nor any pro-
vision for integration of the state and local planning policies. Con-
sequently, early proposals for the Capability and Development Plan sug-
gested making local plans mandatory by a certain date, with state-level
review to ensure that they were consistent with state policy in areas in
which both were relevant. Although the effectiveness of the permanent
plans as tools for maintaining the quality of the environment in Vermont
is obviously dependent upon the state's ability to enforce its policies
across jurisdictional lines and to achieve consistency in land use deci-
sions at every level of government, the recent amendments to Act 250 con-
siderably reduce its ability to do so.
The amendment of Section 6043 governing the permanent Land Use Plan
greatly diminishes its potential usefulness in implementing state land
use policy by strictly limiting the authority of the Plan to develop-
ments which fall within Act 250 permit jurisdiction. In the important
area of conformity between state and local planning, the legislature
clarified the respective roles of the two levels of planning by enlarging
the role of local plans. Thus local and regional plans are now to be
1 fS9
taken into account in the development of the Land Use Plan. ^ Although
the introduction to the printed form of the amendments, which was drawn
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in part from the legislative findings, asserts that the planning
principles of the Capability Plan are intended as guides to public plan-
ning activities at all levels of government, the sole statutory bow
to the authoritativeness of the state plans is contained in an amendment
to Section 6046 (b). Here it is provided that only in the case of a spe-
cific showing that the proposed use will have a significant impact on
surrounding towns or regions or on an overriding interest of the state, may
a District Commission or the Environmental Board issue a permit incon-
164
sistent with local plans. This clarification of the authority of the
state and local plans is not very likely to result in consistent advance-
ment of statewide environmental goals. In addition, it does little to
diminish the impact of the concurrent restriction of the authority of the
Land Use Plan to developments falling within the jurisdiction of Act 250
permit review.
One state planner felt, at least before recent amendments, that the
structure of Act 250 was adequate to ensure control of major developments,
even without state review of local plans. The legislature has, in any
event, made it clear that it does not intend to provide any mechanism for
the certification of regional and local plans under the Act 250 plans.
It remains to be seen whether this viewpoint will change if events prove
that statewide environmental goals cannot be met without such policy
coordination.
Apparently, despite the dual systems of planning and permit review
of new construction under state and regional plans, the problem of a con-
flict between the two has not yet arisen. It is not inconceivable
that a case could be made in the courts, in such a case, that the state
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plans or environmental criteria might be considered binding upon local
standards. Some Vermont Supreme Court decisions have held that the
state standards (in one case, standards of environmental quality) were,
in effect, conditions upon the state's delegation of zoning power to local
1 f\ 7
government. One wonders whether a solution to the political problems
involved in getting state legislatures to provide state administrative
review of local planning decisions might not be to provide by statute
that the state delegation of zoning and planning power is conditioned
upon meeting state environmental standards, and to provide for judicial
review of non-conforming plans or ordinances. Although such a course
might be more palatable to local groups, the burden on the courts and on
the state to undertake the procedure might weigh against it, as well as
the difficulty of comparing plans that might not be commensurable in scale.
State planners feel that the precise nature of the Land Use Plan's author-
ity will not really appear until it has been adopted by the legislature
and that the moral and practical force of such an adoption may well serve
to overcome some of the anomalous aspects of Act 250's provisions on
this point.168
Nonetheless, there are clearly several issues which will have to be
resolved. Although the lack of coordination between state and local planning
may not by itself be critical, in conjunction with the now limited jur-
isdiction of the final plan and with the uncertain character of the land
use classifications to be delineated by the Land Use Plan, the effective-
ness of the permanent plans as instruments of state policy may be in doubt.
Since Vermont has shown considerable ingenuity and efficiency in finding
administrative solutions for some of the unforeseeable anomalies created by
the statute, there may be no issue. However, if statutes which attempt
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to maintain the quality of the environment through state level land use
control are to be adopted in states with more complex environmental prob-
lems and bureaucratic structure, clear-cut statutory solutions may be re-
quired.
Planning Under the Maine Statutes
It would be extremely difficult to compare the provisions of the Maine
Land Use Regulation statute's planning provisions with Vermont's, at least
on a practical basis, since no plans have been promulgated and the interim
districts and land use guidance standards have just been developed. It is
interesting to note a few statutory points of difference, however. The
Maine statute leaves no room to question its binding effect on almost any-
thing. It provides that:
"...whenever the requirements of an adopted land use guidance
standard are at variance with the requirements of any other law-
fully adopted rules, regulations, standards, ordinances, deed re-
strictions or covenants, the more protective of existing natural,
recreation and historic resources shall govern."
In addition, as indicated above, the standards of the Commission will
continue to govern any portion of a district that subsequently organizes
until it shall adopt land use plans and regulations no less protective
of these resources. Clearly, such provisions will greatly enhance the
ability of the state to ensure that its environmental policies receive
uniform and adequate implementation. Although such a technique might
be applied in Vermont to those municipalities (as well as to the small
number of areas which have not yet incorporated) which have not adopted
zoning ordinances, the practical difficulties involved in attempting to
superimpose them upon existing plans and ordinances might be very great
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indeed.
Unlike the Vermont statute, there is explicit provision for invalid-
ating plat recordings made in violation of the statute, and unlike
Vermont there is also a further explicit provision for invalidating con-
veyances. The most striking difference in the statutes, aside from
the greater specificity of the statutory definitions of the land use
districts in the Maine statute and its inclusion of the power to set
performance standards to minimize the impact of incompatible uses, is
172
the clear delegation of zoning powers to the Land Use Commission.
The Commission may classify and draw district boundaries, and prescribe
the standards for and restraints upon the use of air, lands and waters in
173
the various Districts . This clear power to limit uses is in great
contrast to the language of Act 250.
Another noteworthy difference lies in the lack of any requirement,
in the Maine statute that the comprehensive plan be submitted to the
Legislature. The Comprehensive Land Use Guidance Plan would appear
roughly to correspond to the Vermont Capability and Development Plan,
but the Land Use Guidance Districts are designated solely by the Commission
and require no legislative approval. The only level at which the Vermont
Environmental Board and the Maine Land Use Regulation Commission seem to
have the same degree of freedom in determining the use to which a given
area may be put lies in the power of the Land Use Commission to set gui-
dance standards for each type of district and the corresponding power in
the Environmental Board to promulgate rules effectuating the permanent
plans.
Despite this lack of parallelism in the statutes, some very general
conclusions can be suggested. The clearly defined scope of the Maine
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Commission's authority, the more precise definition of the authorita-
tiveness of the districts and standards once developed, and the less am-
biguous standards for permit review will make administration of the Maine
statute somewhat easier and probably somewhat less open to attack in the
courts. The language of the Maine statute may also offer some advan-
tages over that of Vermont by providing greater integration of the planning
and regulatory functions. Although the Comprehensive Plan in Maine need
only serve as a "guide" to the Commission in drawing district boundaries,
the clear power to draw such boundaries and the provision that develop-
ment permits must conform to the Land Use Guidance Standards (rather
than the Plans) not only makes the meaning of "in conformance" consi-
derably less vague, but also conceivably makes implementation of the
policies embodied in the designation of districts a tighter and more
direct process. Nevertheless, Vermont officials believe that some of
the looseness in the Vermont statute leaves room for a desirable admini-
strative ingenuity and substantive flexibility in the decisions of the
District Commissions.
The Maine statutes also offer an advantage in that air quality
considerations are directly incorporated in the land use statutes. Both
the Land Use Regulation Statute and the Site Location Law use state air
pollution standards as explicit criteria for the granting of permits,
and the Land Use Regulation statute expressly requires that the guidance
standards for each district shall reduce air pollution. However, the
administrators of Act 250 in Vermont have achieved roughly the same ef-
fect by administrative referral of permits to the air pollution control
officer for review. The only difference would seem to lie in the sub-
stantive rules of decision which may be developed for permit review once
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each statute has a plan in actual operation to guide permit review.
EVALUATION
This review of the statutory and administrative structure of state
land use control in Vermont and Maine leads to a few broad conclusions
when analyzed in the light of current approaches to air quality manage-
ment. More importantly, it indicates the areas in which issues are
open and solutions will have to be found if state land use control is
to achieve wider acceptance or be put to more varied uses, such as for air
pollution control. The generalizations that can be made about these
statutes, as well as the unresolved problems they present, can be grouped
around the following issues:
A. The machinery of control, its form, scope, standards of sanc-
tions, and adequacy and effectiveness, and the practical and
legal issues in horizontal and vertical integration of author-
ity over land use control.
B. The role of land use planning, its function, scope, nature and
authority.
C. Problems involved in incorporating air quality issues into both
the planning and regulatory process.
D. State level zoning: is it necessary, possible, useful, or are
there alternative methods of accomplishing the same goals?
It appears undeniable that the comprehensive plan with its permit
system for reviewing new or expanded uses of land provides an effective
and flexible tool for identifying and gaining control of development.
Thus it is fairly clear that the permit review system in Vermont and
Maine is an excellent method of ensuring that sizable development schemes
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will receive adequate site planning and attention to compliance with state
environmental regulations. Whether such a system can also ensure that
any given development will conform to the broader land use goals of the
community is less clear. The usefulness of the state level review of
land use decisions to guarantee fulfillment of environmental and devel-
opmental needs of a more than local significance depends not only upon
the appropriateness and adequacy of the permit review machinery but also
upon whether that machinery can be harnessed to effectuate the land man-
agement goals of the state.
Machinery of Control
The threshold issue in assessing a regulatory mechanism is whether
those reached by the law actually represent the full extent of the evil
to be cured. In Vermont, it is felt that the ten acre-ten unit dragnet
of Act 250 identifies most developments likely to represent a signifi-
1 7ft
cant influence on the environment. Although strip developments caused
by haphazard small scale undertakings represent some problems in this
area, they may to some extent be controlled through the "areas of scenic
significance" criterion, although it might be preferable simply to
spell out legislatively an extension of the law's coverage to smaller
parcels along scenic corridors. The Site Location Law in Maine, on the
other hand, permits any development of fewer than 20 acres to escape
regulation and this problem is exacerbated by the administrative inter-
pretation of the Law to apply to 20 acres "disturbed" by the development
rather than 20 acres "involved," as in Vermont.
On the other hand, very fine level regulation, as in Maine's Land
Use Law, could not very well be extended beyond unincorporated areas,
since it would represent a serious invasion of local control of devel-
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opment that does not create a significant impact on the environment of
the state as a whole. Presumably, the dragnet should vary with the type
and density of development to be expected in the region concerned as well
as with the political organization being affected.
The sanctions applied by these laws seem to be satisfactory. The
only caveat would be that penal sanctions do not appear to be particularly
appropriate in this context, and they are not invoked in Vermont at all.
Invalidating conveyances made in contravention of the law would presum-
ably be particularly effective when one of the major evils to be remedied
is the commercial exploitation of land. This penalty would especially
be effective if tied to the recording system. The same comment cannot
be made about unenforced criminal sanctions. If the technique of in-
validating conveyances is used, it should perhaps be expressed in clear
statutory language, as in the Maine Land Use Law, rather than left to
administrative legislation or interpretation. Although it is assumed
that conveyances in violation of the Vermont law will be found void,
this penalty is left to judicial interpretation, and the actual penal-
ties for violation of the property tax transfer law are related to vio-
lation of transfer formalities rather than of the transfer itself. This
is an awkward approach to voiding the conveyance.
The problem raised by limitations on the power to obtain injunc-
tions have already been discussed. The other major practical issue
affecting the efficacy of the control machinery arises from the lack of
funds and personnel not only for field evaluation of developments and
efficient administrative processing, but also for follow-up procedures.
There is relatively little opportunity at the moment in Vermont to dis-
cover whether permit conditions are in fact being met.
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Additional tools in the hands of the agency responsible for plan
implementation are also valuable. The provision in the Maine Site Loca-
tion Law for hearings initiated by the Commission on development pro-
180
posals that fail to file a notice of intent is clearly useful, al-
though the same purpose might be served indirectly by voiding convey-
ances . The power to acquire conservation easements or to purchase land
outright would also be influential in guiding land use patterns, but the
lack of sufficient financial resources in most states precludes its wide-
spread use. Possibly the most influential and far-reaching proposal for
new land use control tools lies in the suggestion that tax assessment be
adjusted to reflect the designations of the state plans. Maine has al-
181
ready moved in this direction by providing that the land use guidance
maps be filed with the state Assessor, although they do not go so far
as to require adjustments.
Questions have also been raised about the scope of the statutory
criteria adopted by these laws. Many of those concerned with the operation
of the law in Vermont favor broad statutory standards of permit review,
on the theory that such language permits the greatest flexibility in
assessing a given proposal and tailoring the permit conditions innova-
tive ly to the needs of the community and the developer. This viewpoint
is certainly appealing. On the other hand, practical considerations might
favor clear and specific standards of decision, the meaning of which
would be well known to those affected before they undertook to act.
Clarity in statutory standards might also foster uniformity and consis-
1 Q9
tency in decisions, either across a state or within a district.
J. Walter's study of these three laws emphasized the due process and
equal protection issues raised by vague statutory standards, especially
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criticizing the Vermont statutory criterion that protects "rare and ir-
replaceable" areas183 and its application (to a project that would have
involved the draining of a beaver pond) as an unjustified exercise of
state power in the absence of a plan designating the area as rare and ir-
replaceable before the permit was applied for. In this connection, Wal-
ter preferred the provision in Maine's Land Use Law for hearings on adop-
tion of districts and standards to which affected property owners were
party, on the theory that procedural due process is better served when the
classification process is statutorily prescribed and can be protested by
184
those affected.
The issues are potentially important. To some extent, the form of
the statutory criteria for permit review is a question of draftsmanship,
of devising language that is clear and unambiguous yet sufficiently gen-
eral to allow for flexibility and for opportunities to take local varia-
bles into account. But when the use of development permits is considered
not only as a means of guiding land use but also of prohibiting certain
uses in certain places, there is a great burden on the law and its admin-
istrators to ensure an opportunity to be heard and a rational relation-
ship between the prohibition and the interests of the state.
As the earlier discussion has emphasized, the agencies and techniques
of administration of statewide land use laws are at least as important
as the substantive provisions of the statute. One member of the Maine
Environmental Improvement Commission, in discussing the value of state-
level review as against regional-level review of development permits, noted
the likelihood that local bodies would be more vulnerable to the needs
of the local tax base and employment pool. The sensitivity of regulatory
agencies on the feeling of their subjects is a commonplace of American
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official life, but the importance of incorporating local interests and
considerations that might be unnoticed or submerged in a state level
decision cannot be ignored.
The Vermont experience so far does not seem to warrant fears that
the District Commissions will be seduced by the developmental needs of
their region, although it is probably too early in the implementation
of the law to reach a definite conclusion on this point. Certainly the
expert assessment of interested state regulatory agencies is a useful
check on district level decisions which might tend to be biased in favor
of local need. Undue local influence can also be filtered out while re-
taining local input to permit decisions by controlling the composition of
the local reviewing bodies and preventing, by statutory command or intel-
ligent appointments, excessive representation from those most likely to
be affected by the application of the law.
The elimination of administrative overlap among state level agencies
and of jurisdictional overlap between state level controls on land use
and existing local controls is also an important issue, one which looms
very large in practical terms due to the inefficiency which results for
the state and the burden on those regulated. The current tendency to
coalesce state agencies concerned with environmental controls is one step
in this direction, but as the Vermont experience shows, does not alone
solve the problems presented by multiple procedural requirements and
varying review standards. The fact that many kinds of control over the
use of land have been exercised by the states for many years, and the fact
that environmental concerns have reached the public consciousness in a
piecemeal fashion have combined to create a hodgepodge of agencies and
controls concerned with land use. Merely housing the concerned state
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agencies under one roof does not necessarily result in a streamlined and
uniform approach to land use decisions. Legislative fragmentation of en-
vironmental authority does appear to have been handled well administra-
tively in Vermont. But it is easy to see that a larger and better entrenched
bureaucracy, or one more heavily burdened by a great volume of construc-
tion or development proposals, might suffer more severely from a lack
of coordination and integration of environmental regulator)7 mechanisms„
Similarly, the concurrent jurisdictions of state, region, and muni-
cipality over land use decisions must be clarified and assigned rational
roles relative to each other assigned. Putting aside for the moment
the question how much of the actual land use control power should be re-
turned to the state under such land use laws, it must be made clear
which plans are binding upon local reviewing or planning bodies. The
most appealing solution is that of the Maine Land Use Law, which makes
state standards minimum requirements for local ordinances, but the limi-
tations of such an approach when applied to developed and previously
incorporated areas are fairly obvious. On the other hand, the anomaly
resulting from Vermont's protectiveness of local control, i.e., the fact
that regional and municipal plans are binding on the District Commissions
but need not themselves conform to the state land use plan which the
District Commissions implements, is clearly unacceptable. A simple re-
quirement that local and regional plans be "consistent" with state plans
might suffice to be binding without limiting local flexibility.
It is conceivable that coordination of state and local level planning
and land use control can come about indirectly, as in the case of the
Vermont decision holding that the state's authority over zoning is dele-
gated subject to the obligation to meet state standards when they con-
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flict with local standards on a particular subject. However, the im-
portance of defining the local rule within a state-wide system of land
use control suggests that local powers will be defined explicitly
and not left to judicial implication. Undoubtedly numerous legal ar-
guments could be marshalled in support of the obligation of local zoning
bodies to legislate with an eye to statewide concerns, and it is probably
safe to say that the power of the states to regulate local effects on
state environment goals is limited as much by political realities as
by legal ones.
The Role of Planning
The need to articulate the nature and scope of the authority of
comprehensive state plans over regulatory permit decisions poses one of
the more difficult and important issues in a state land use control sta-
tute such as that of Maine and Vermont. If a statute such as Vermont's
confers broadly based control powers on the state, many would argue that
the state should be permitted to prohibit or limit uses of land only
pursuant to a plan that reflects legitimate goals to be reached by the
exercise of the police power. Most limitations on uses that produce
adverse environmental effects can be legally supported but the scope and
meaning of provisions such as that in the Vermont law requiring a finding
that there will be no undue adverse effect on sites of particular natural,
historical or aesthetic significance should probably be better defined as
such and supported by a well-articulated plan defining such areas in order
to avoid unfairness to property owners and consequent challenges in the
courts.
Whether a state plan should be required before state land use con-
trols can be exercised is an issue that has gained in importance as state-
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wide controls have received increasing consideration nationally,
though not all statutory proposals condition the exercise of state-
wide land use control powers on a state plan. A state plan is not required
as the basis for the exercise of state land use control powers in the
Florida statute, for example, and this approach is being given consider-
ation in other states.
The notion that the criteria which serve as the standards of permit
review of development permits should be founded on a definite though gen-
eral plan has at least three bases. Fairness to those regulated requires
that persons similarly situated be similarly treated, which is hard to
establish when decisions are made and management of property is limited on
an ad hoc basis. Furthermore, if the permit review process is to make
a substantive contribution to land use control, so that the reviewing a-
gency may serve as more than a clearinghouse for the substantive stan-
dards of other agencies, then a plan is essential to justify any limi-
tations on private action imposed by the state. Third, a plan is essen-
tial for practical reasons, since the simple application of across-the-
board regulations may neither reflect nor enhance achievement of the
environmental goals of the community if the size or type of undertaking
involved is simply inappropriate to the needs of the community at that
. «. 186
point.
Adoption of state-wide or at least regional land use plans is ar-
guably desirable in the air quality field because of the regional basis
for air quality control and the federal requirement that state control
strategies have a state-wide implementation base. The issue is tied
to some extent with the mechanics of the land use control process as It
is applied to achieve air quality objectives. The state plan-permit
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review system of environmental control can be used to manage air quality
simply by using the permit as a means of gaining control of the pro-
posed development and then applying the regulations already in existence
under the air pollution control program. In this case, incorporating
air quality considerations is largely a matter of administrative logistics.
The use of the state land use review mechanism rather than a permit sys-
tem administered wholly within an air pollution control agency will be
dictated more by questions of efficiency than by any inherent virtue of
the land use review statute, since the result in either case is source
by source regulation.
As soon, however, as air quality controls based on the location and
density of sources are to be implemented, the state-plan cum permit re-
view of land use proposals mechanism offers substantial advantages. The
ability to prohibit certain uses in certain places and to vary at-the -
stack controls according to the location of the source are essential
and valuable powers in air quality control. But this type of control
should be based on planning that takes into account the future of all
community activities and development patterns which will produce pollution
directly or indirectly. Without a link to general state land use policy,
the air quality control agency will not be able to influence the general
pattern of future source location and density, and ordinarily will influ-
ence only certain types or sizes of industry rather than a complex of in-
dustrial, residential, and transportation sources creating pollution.
Thus, if Vermont had a more severe air pollution problem, or envi-
sioned greater industrial or population growth in the future, the types
of control available under its air pollution statute would not allow it
to guard adequately against the concentration of industry near trans-
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portation or against the concentration of home building in valleys. If
the state plan, independently of air quality considerations, encouraged
future residential and commercial development to cluster in order to
preserve prime agricultural and forest land, then rather severe air
quality consequences might ensue, especially in a state whose topogra-
phy ( i.e., numerous valleys and chains of valleys) encourages small
pockets of pollution. It is not difficult to see that in a state with a
higher level of development, the technique of reviewing land use propo-
sals for conformance with the state environmental goals might be essential
to effectively control air pollution.
In this case, it would be the planning level of the land use review
process rather than the regulatory mechanism which would be the locus of air
quality control, and state emission standards could be applied either
within the land use review process or within a separate air quality con-
trol agency, depending on questions of administrative efficiency. As
long as the air quality effects of alternative plans are assessed by an
expert agency and the per source regulations appropriate to the plan
1 87
actually adopted are used, the application of the regulations within
the permit review process has certain procedural advantages. In fact,
given the technical complexity of air pollution regulations and the actual
machinery of source controls, it is probably preferable to have such
regulations administered by the expert agency and to have, as in Vermont,
review by the technical agency when emission controls are to be attached
as a condition of permit approval. Thus the danger of ultimate delega-
tion of the prescriptive and enforcement powers to the emitter himself,
which occurred in one area because of the extreme technicality of the in-
formation and evaluation involved, can perhaps be avoided.
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The major legal issue affecting the form of the plans themselves
would appear to be a need for policies and standards that are general
in substance and application, but not vague. If the plans are to provide
an adequate basis for the review of new development proposals, whether
or not the Vermont practice of particularizing them in administrative
rules is followed, then the plans should embody policies and standards
that are enforceable. Little is gained by plans which cannot be transla-
ted into actual prohibitions or limitations of uses because it is diffi-
cult or impossible to determine whether or how their constraints apply
to a particular proposal. The problem of finding an appropriate level
of detail for generalized land use plans has been difficult to resolve.
More experimentation is required if state-wide plans are going to play
a meaningful role in environmental protection through the control of
land use.
STATE-WIDE REGULATION
It is difficult to draw any unqualified conclusions about the val-
ue of statewide "zoning" as a tool of environmental control. What is
considered state level zoning varies with the prejudices of the observer,
and what can be accomplished by state level decision-making varies with
the subject matter. There is no great dispute over the need for state
level land use regulation in areas where there is no local control over
environmental depredations. Where local controls do exist, the need for
policy-making on issues that cannot be confined within jurisdictional
lines must be balanced against the interest of local bodies in controlling
land use decisions that may radically affect the economic and social life
of its citizens.
There are several possible solutions to achieving an optimum balance
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of power. They range from true state-wide zoning, in which the state
agency delineates the permissible location of various categories of land
use and decides in each case whether a given use conforms to the state-
wide scheme, as in Maine's provisions for unorganized areas, to an arrange-
ment by which the state establishes planning goals for land use controls
which are to be entirely implemented at the local level. At various
points along this range would be found statutory structures such as
Vermont's Act 250, in which both local and state level standards are
administratively coalesced in a state level regulation process, which
could be simplified by making the state standards binding on local
standards. Another intermediate solution is a system which depends sole-
ly on state regulatory mechanisms, but with the state review machinery
depending entirely on local plans and criteria or on existing state
regulations, such as the Maine Site Location Law. Such a system would
probably be the least effective mechanism for rational control of the
environment. But it represents an interim solution in situations where
existing control machinery is fragmented by subject matter or jurisdic-
tion, and the impact of large scale development proposals are clearly
of concern to the state as a whole. Such a system could also be used on
a limited jurisdictional basis, reviewing proposals only in designated
areas of critical state concern or affecting particular resources. This
is the Florida statutory solution. Conceivably, a simple and locally
acceptable solution would be the development of state plans of some
specificity whose policies would then be binding on local and regional
plans, which would also be sufficiently specific and sophisticated
to provide guidance for local zoning decisions.
Although it is difficult to draw any specific conclusions about the
3-64
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best structure that comprehensive state control of land use, one
clear general conclusion seems warranted by the preceding discussion: if
the control of land use patterns is to be an effective tool of air qual-
ity management, the impact of individual developments on air quality stan-
dards cannot be considered in isolation. Some method must be found to
link decisions on individual developments to regional and state-wide air
quality standards. Whether or not this effort will require state-wide
planning or or whether it can be accomplished by state-wide regulation with-
out the benefit of such planning can only be determined through further
experimentation with land use controls at the state level.
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NOTES
1. For an analysis of similar legislation in these and other states
see E. Haskell, Managing the Environment: Nine States Look for the Answers
(1971), hereinafter cited as Haskell.
2. Vt. Stat. Ann. Tit. 10, Sec.6001-6091 (Supp. 1972).
3. F. Bosselman § D. Callies, The Quiet Revolution in Land Use
Control 55 (1971), hereinafter cited as Bosselman; Haskell, at 34.
4. Sec. 6086(a) 1-4.
5. Sec. 6088.
6. J.H. Marshall, The Efficacy of Vermont's Act 250, at 2 (1971),
hereinafter cited as Marshall.
7. Sec. 6086(a) (10).
8. Sec. 6021.
9. Sec. 6022.
10. Sec. 6023.
11. Sec. 6024.
12. Sec. 6025.
13. Sec. 6041 provided that the Interim Plan, which was not adopted
until February of 1972, shall expire in July 1972.
14. Sec. 6042.
15. Sec. 6043.
16. Sec. 6044a.
17. Sec. 6044c.
18. Sec. 6045.
19. Sec. 6046.
20. Sec. 6046, as amended 1973, No. 85, Sec. 5, eff. July 1, 1973.
21. Sec. 6031.
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22. Sec. 6042.
23. Sec. 6043.
24. Sec. 6043, as amended 1973, No. 85, Sec. 4, eff. July 1, 1973.
25. Sec. 6089. That is, the Board hears the case as if it were a
case of first instance.A case now pending in the Vt. Supreme Court (Land/
Tech Corporation, Stowe, Vt., Application #10036), appealing a denial of a
permit granted by a District Commission, has challenged several Environ-
mental Board rulings on what constitutes a de_ novo hearing. In an earlier
Vermont Supreme Court decision it was held that the same parties who
appeared before the District Commission may appear in the appeal to the
Board. In re Preseault, Vt., 292 A.2d 832 (1972).
26. See Sec. 6085(b)(c).
27. Sec. 6089.
28. Sec. 6089, as amended 1973, No. 85, eff. July 1, 1973.
29. Sec. 6081.
30. Sec. 6001.
31. Sec. 6083.
32. Sec. 6084(a).
33. Sec. 6084(b).
34. Sec. 6085(a).
35. Sec. 6085(b).
36. Sec. 6085(c).
37. Sec. 6085(d).
38. Sec. 6027(f), as amended 1973, No. 85 Sec. 3, eff. July 1, 1975.
39. Sec. 6086(a).
40. Sec. 6088.
41. Sec. 6086, as amended 1973, No. 85, Sec. 10, eff. July 1, 1970.
42. Sec. 6086(c).
43. Sec. 6089.
44. Sec. 6003.
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45. Vt. Stat. Ann. Tit. 3, Sec. 2822(Supp. 1972).
46. Sec. 2822(c)(l)(2).
47. Sec. 2822 (c) (3).
48. Sec. 2822(c)(4).
49. Vt. Stat. Ann. Tit. 3, Sec. 2802 (1972).
50. Me. Rev. Stat. Tit. 38, Sec. 481-488 (Supp. 1972).
51. Tit. 38, Sec. 361.
52. Sect 482.
53. Sec. 483.
54. Sec. 485.
55. Sec. 486.
56. Sec. 487.
57. Sec. 488.
58. King Resources Co. v. Environmental Improvement Comm'n, Me.,
270 A.2d 863 (1970). The opinion held that appeal was to the Supreme
Judicial Court sitting as the Law court, and that a development which
was operational on the cutoff date was exempt from the law's coverage,
even though it was not actually operating.
59. Tit. 12, Sec. 681 to 685-C (Supp. 1972).
60. Sec. 685-A(l)(A-D).
61. Sec. 685-A(4).
62. Sec. 685-C.
63. Sec. 685-B(l)(A-C).
64. Sec. 685-B(3).
65. Sec. 685-B(7).
66. Sec. 685-B(8)(9).
67. Sec. 685-C(4)(6).
68. The law makes the lack of "undue air pollution" a criterion
of permit approval. Tit. 20, Sec. 6086(a)(1).
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69. Tit. 12, Sec. 685-A(3)(B).
70. Letter from James Haskell, Jr., Executive Director.
71. Vt. Stat. Ann. Tit. 3, Sec. 2802 (1972).
72. Sec. 2803.
73. Sec. 2874.
74. Bosselman, at 61.
75. Interview with Jonathan Bump, Land Use Administrator, July
13, 1972.
76. Marshall, at 72; Bosselman, at 63.
77. Ibid.
78. Interview with Donald Webster, Director, Division of Protec-
tion, July 13, 1972.
79. It was not until June of 1972 that the legislature transferred
the rule-making authority as well as the administrative functions of the
Board of Health regarding air pollution control to the Environmental
Conservation Agency.
80. Interview with Kenneth Senecal, Executive Director, Environ-
mental Board, July 13, 1972.
81. Bosselman, at 89.
82. Interview with Richard Valentinetti, Air Pollution Control
Officer, July 13, 1973.
83. Interview with Kenneth Senecal, Executive Director, Environ-
mental Board, July 13, 1973.
84. This figure is partly accounted for by the fact that the Board
of Health had not yet promulgated regulations concerning building permits
under the air pollution law, and these rule-making powers were but recent-
ly transferred to the Environmental Conservation Agency.
85. Vermont Agency of Environmental Conservation, statistics on
Act 250 applications, June 1, 1973.
86. Interview with Kenneth Senecal, supra note 83.
87. Ibid.
88. Marshall, at 52.
89. Bosselman, Appendix A.
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90. Vermont Agency of Environmental Conservation, statistics on
Act 250 Applications, June 1, 1972 and June 1, 1973.
91. Interview with Donald Webster, Director, Division of Protection,
July 13, 1972.
92. Interview with Steven Seuse, Land Use Administrator (replacing
Jonathan Bump), July 13, 1973.
93. Bump interview, supra, note 75.
94. Senecal interview, supra, note 83.
95. Only about 15 are issued each year under all programs. Webster
interview, supra, note 91.
96. Senecal interview, supra, note 83.
97. Ibid.
98. Bump interview, supra, not 75.
99. Seuse interview, supra, note 92.
100. Bosselman, at 68.
101. Webster interview, supra, note 91.
102. Senecal interview, supra, not 83.
103 Ibid.
104. Marshall, at 66.
105. Ibid.
106. Re L.M. Pike $ Son, Inc.
107. Marshall, at 86.
108. Letter from Richard Valentinetti, Air Pollution Control Officer,
to L.M. Pike $ Son, April 21, 1972.
109. See Sec. 5-488.
110. Interview with Richard Valentinetti, Air Pollution Control
Officer, Division of Protection, July 13, 1972.
111. Air Pollution Regulations, Sec. 5-487(15).
112. Tit. 10, Sec. 356(a) (Supp. 1972).
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113. Vt. Stat. Ann. Tit. 10, Sec. 355, 358 (Supp. 1972).
114. See text at note 47, supra.
115. Valentinetti interview, supra, note 109.
116. Valentinetti interview, July 13, 1973.
117. National Resources Defense Council v. Environmental Protection
Agency, and Ruckelshaus v. Sierra Club, aff'd sub nom.Fri v. Sierra Club,
slip opinion, #72-804, June 11, 1973. The first case was subsequently dis-
missed by the Tenth Circuit for want of standing (June 18, 1973). The
latter case was a Court of Appeals (B.C.) opinion supporting an inter-
pretation of the Federal Clean Air Act as requiring state implementation
plans to prevent "significant degradation" of air quality. It was affirmed
by an equally divided Court without opinion, leaving not only the language
but also the legal status of the holding rather uncertain.
118. 38 F.R. 18986, July 16, 1973.
119. Valentinetti interview, supra, note 115.
120. Bosselman, at 192.
121. Only four out of 136 applications were wholly denied in the
first year of operation. Bosselman, at 192.
122. Bosselman, at 193.
123. Interview with Orlando Delogu, Maine Environmental Improvement
Commission, July 24, 1972.
124. Ibid.
125. Ibid.
126. The original reference to "residential" developments was dropped,
although the commission still considers that the law applies to major
commercial residential developments.
127. Bosselman, at 196.
128. Letter from James Haskell, Executive Director, July 31, 1972.
129. Ibid.
130. Bosselman, at 199.
131. Delogu interview, supra, note 112.
132. Bosselman, at 199.
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133. This contention is not supported by some of the legislative
history reported in Marshall, at 36.
134. Interview with David Heeter, Consultant to the Vermont En-
vironmental Board, July 13, 1972; Senecal interview, supra, note 89.
135. Sec. 6043.
136. However, the last sentence of that section clearly distingui-
shes "zoning" at the local level from whatever it is that the land use
maps are expected to accomplish.
137. Sec. 6047.
138. These boundaries are designated under Sec. 5043.
139. These are designated under Sec. 6041.
140. For petitions relating to Sec. 6041 he must also show that the
land is capable of sustaining the use proposed.
141. Sec. 6041-6043.
142. Bosselman, at 74.
143. Ibid.
144. Bump interview, supra, note 75.
145. Sec. 6086(a) (8).
146. See Walter, The Law of the Land: Development Legislation in
Maine and Vermont, 23 Me. L. Rev. 315 (1971).
147. Interview with Bernard Johnson, Vermont State Planner, July 13,
1972.
148. Heeter interview, supra, note 133.
149. See Sec. 6042, which requires that the final plans shall be
"consistent with" the Interim Plans. Johnson interview, supra, note 146.
150. Plan, at 2.
151. E.g., Johnson interview, supra, note 146. Heeter interview,
July 13, 1973.
152. Sec. 6042, 6043.
153. Senecal interview, supra, note 83.
154. Sec. 6043, as amended 1973, No. 85 Sec. 4, eff. July 1, 1973.
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155. Heeter interview, July 13, 1973.
156. Sec. 6086(a)(9), as amended, 1973.
157. Walter, supra, note 145.
158. Heeter interview, supra, note 154.
159. The provisions for altering tax practices also reflect a de-
parture from earlier hopes. The Task Forces and statutory hearings on
The Capability and Development Plan (Notes, Vermont Capability and De-
velopment Plan, Vermont State Planning Office, June, 1972) revealed
a general concern over the extent to which taxation practices acceler-
ated the continuing loss of agricultural and other open lands. The new
legislation refers to taxing practices only as a possible recommendation
to be made under the permanent Land Use Plan (Sec. 6043, as amended 1973).
The legislative findings did recommend that land should be appraised accor-
ding to uses of the land consistent with the Act, and this goal was
embodied in some adjustments in the tax statute. However the latter pro-
visions were intended less as a tool for gaining conformity with the
policies of the Plans than as a protection to landowners suffering re-
duced development potential (Senecal interview, supra, note 83).
160. Heeter interview, supra, note 154.
161. Sec. 6086(a)(9)(B), as amended, 1973.
162. Sec. 6043, as amended, 1973.
163 Introduction to Vermont's Land Use and Development Law, State
Planning Office, Montpelier,Vermont, June 1973, p. 1.
164. Sec. 6046(b), as amended, 1973, No. 85, Sec. 5, eff. July 1, 1973.
165. Johnson interview, supra, note 146.
166. In fact local and regional plans have been useful in defending
challenges to state restrictions on permits (Senecal interview, supra, note
83).
167. Kedroff v. Town of Springfield, 127 Vt. 624, 256 A.2d 457 (1969),
and Thompson v. Smith, 119 Vt. 488, 123 A.2d 638 (1957).
168. Johnson interview, supra, note 146.
169. Sec. 685-A(4).
170. The Vermont statute penalizes such recordings, but does not
explicitly void them.
171. It is assumed in Vermont that such illicit conveyances would
themselves be held void by the courts, but this decision would be based
upon general legal principles rather than the statute.
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172. Sec. 685-A(3)(E).
173. Sec. 685-A(3).
174. Only the Governor's approval is necessary, (Sec. 685-C(l)), al-
though the regional planning commissions must have the opportunity to
comment.
175. Note in this respect Walter's criticism of the Vermont statute
as lacking the provision for a hearing to which property owners are party,
prior to adoption of the plans, and his praise of such provisions in the
Maine Statute as removing some of the procedural due process objections
to land use control. See Walter, supra, note 145.
176. Webster interview, supra, note 78.
177. Sec. 685-A.(3)(B).
178. Bosselman, at 81, however, feels that the lot size is not
appropriate and allows too many developments to escape.
179. Sec. 6086(a) (8).
180. Sec. 485.
181. Sec. 685-C(6).
182. Note that the uniformity problem can also be improved by clar-
ifying the role of the comprehensive state plans in permit review, as
discussed below.
183. Walter, supra, note 135, at 328.
184. Ibid., at 341.
185. Delogu interview, supra, note 112.
186. Walter seems to suggest that due process also requires a plan
on the grounds that otherwise the property owner has no notice of the
limi /dtions on his use of the land. Walter, supra, note 135, at 341-3.
187. However, as plans are revised over time the assessments of their
air quality impacts will have to be similarly revised.
188. See Goldstein § Ford, The Management of Air Quality: Legal
Structures and Official Behavior, 21 Buff. L. Rev. 1, 33-4 (1971).
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CHAPTER FOUR
ADMINISTRATIVE REVIEW PROCEDURES FOR RELATING
LAND USE PLANNING TO AIR QUALITY MANAGEMENT
One of the major conclusions of chapters 2 and 3 is that administra-
tive procedures for relating land use planning to air quality management
must take their place among a large group of other concerns in the state
land use and permit review process. This chapter reviews the nature of
popular review procedures and permit systems, including the environmental
impact statement requirement under the National Environmental Policy Act
(NEPA) of 1969, the A-95 review process under the Office of Management and
Budget (OMB) Circular No. A-95, the permit system utilized by many air
pollution agencies, and the"indirect source" regulations of the Environ-
mental Protection Agency (EPA). The focus is on the value of the proce-
dures for relating air quality management to land use planning.
The National Environmental Policy Act requires the introduction of
environmental considerations into the decision making of all Federal agen-
cies. As it was enacted, NEPA had three main thrusts: the first, which
follows an enacting clause and a statement of purpose, was a declaration of
a national policy on the environment, emphasizing the promotion of the gen-
eral welfare, the fostering of productive harmony between man and nature,
and the fulfilling of the social, economic, and other needs of present
and future. The second thrust of the law, found in Section 102, was the
establishment of a series of mandates and procedures compelling all agen-
cies of the federal government to implement the policy declared in Section
101. The third thrust, found in Title II, was the establishment of a sta-
4-1
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tutory three-person Council on Environmental Quality (CEQ) in the Exe-
cutive Office of the President, with responsibilities to advise the Pres-
ident, gather information on conditions and trends in environmental qual-
ity, and to review and appraise the various programs and activities of
the Federal government in the light of the policy set forth in Title I
of the Act and to make recommendations to the President with respect
thereto.
The scope of Section 102 is such that environmental impact state-
ments are being prepared on projects and programs totaling over 16 billion
dollars annually. By 1973 over 250 lawsuits had been filed in courts
in all parts of the country against federal agencies alleging violation
of Section 102, of which about 50 have resulted in injunctions. Most
of these cases have involved federally assisted highway or airport pro-
jects, Corps of Engineers water resource projects, management activities
of the Departments of Interior and Agriculture, licenses for nuclear
power plants, and federally assisted housing projects. Court decisions
have consistently upheld the Act, stressed its application to projects
begun before the Act was passed, required strict procedural compliance,
and required that statements be substantively adequate rather than per-
funi- ;ory. At least 10 states and Puerto Rico have followed the federal
example in enacting laws requiring environmental impact statements (Ari-
zona, California, Delaware, Hawaii, Indiana, Montana, New Mexico, North
Carolina, Washington and Wisconsin).
The Office of Management and Budget circular No. A-95 has established
a process to aid in the coordination and review of federally funded pro-
jects and programs and in their coordination with state, regional, and
local planning. Although the Section 102 statements and the A-95 re-
4-2
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view process are concerned with the sum of environmental impacts, for
the purpose of this discussion emphasis will be on those impacts related
to air quality.
The permit system of concern here is administered by the state or
local air pollution control agency and usually involves the authority to
construct and operate facilities emitting a minimum of 100 tons per year
of air pollutants. Although the air pollution control permit system
typically has as its goal the application of "state of the art" control
technology to emission sources, the potential application of the system
for relating land use decisions to air quality management is great. The
indirect source regulations, in many ways a derivative frcrn the permit
system approach, were promulgated by EPA in 1973 to deal with indirect
sources of air pollution. For the most part these are facilities that
generate considerable amounts of automobile traffic.
THE NATIONAL EiWIRONMENTAL POLICY ACT
Section 102 (2) (C) of the National Environmental Policy Act of 1969
stipulates that all agencies of the Federal Government shall:
include in every recommendation or report on proposals for leg-
islation and other major Federal actions significantly affecting
the quality of the human environment, a detailed statement by the
responsible official on:
(ij the environmental impacts of the proposed action,
(ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of
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man's environment and the maintenance and enhance-
ment of long-term productivity, and
(v) any irreversible and irretrievable commitments of
resources which would be involved in the proposed
action should it be implemented.
Prior to making any detailed statement, the responsible federal of-
ficial shall consult with and obtain the comments of any federal
agency which has jurisdiction by law or special expertise with re-
spect to any environmental impact involved. Copies of such state-
ments and the comments and views of the appropriate federal, state
and local agencies, which are authorized to develop and enforce
environmental standards, shall be made available to the President,
Council on Environmental Quality and to the public as provided by
Section 552 of Title 5, United States Code, and shall accompany
the proposal through the existing agency review process...
The use of these Section 102 statements as a means of introducing environ-
mental considerations into the decision-making process of federal agen-
cies has had three basic impacts:It has given community and national en-
vironmental groups greater access to the courts, and successful litigation
4
on their part has served to strengthen NEPA. The requirement for the
develoment of Section 102 statanents has forced federal agencies to
consider environmental concerns along with other project goals. Even
though the consideration of the environmental impact of a project may
^ in conflict-with other goals, the Section 102 statements theoreti-
cally assure consideration of all goals on an equal basis. Finally,
the burden of proof on environmental matters has shifted somewhat
frnm the public—or at least the rmhlic interest oronpp—to ag^r
4-4
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responsible for the environmental impact.'
CEQ GUIDELINES FOR PRODUCING 102 STATEMENTS
The Procedures
The Council on Environmental Quality, established under N?PA,
serves as the body that supervises the 102 process. In its capacity
as supervisor, the CEQ oversees agency compliance with NEPA and CEQ
guidelines for implementing the Act, and reviews "draft" and final 102
statements, but it has no authority to reject statements or procedures
established by the various agencies in regard to 102 statements.
The extent to which government officials utilize the information obtained
in an impact statement is not always clear: once a procedurally correct
statement has been completed, the law has been satisfied--the law does
not specify that an agency is obligated to incorporate the findings of a
statement into its decision-making.
Although the CEQ has no legislative or veto powers, it can exert
considerable influence upon agencies through its review of completed
impact statements. If a CEQ staff member believes that a 102 statement
has been inadequately prepared, the agency responsible for the state-
ment is contacted and suggestions are offered to improve the statement.
Should the agency still neglect to satisfy the CEQ guidelines, the Coun-
o
cil refers the matter to the President. It is through such informal
functionings of the system that agencies are encouraged to consider en-
vironmental impacts in their decision-making.
The development of detailed procedures to implement Section 102
(2) (C), outlined very generally in the CEQ guidelines, rested with the
agencies themselves. Basic procedural considerations developed by a-
4-5
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gencies in compliance with Section 102(2)(C) included outlining agency
actions requiring impact statements, determining the appropriate time
prior to decision-making for obtaining the required consultations, and
obtaining the necessary information for preparing the 102 statement.
Section 102 (2) (C) applies to all federal agencies involved in preparing
recommendations or reports on proposals for legislation and "other major
federal actions significantly affecting the quality of the human environ-
9
ment." These "actions" should be considered in the light of their cu-
mulative effect and must deal with beneficial as well as adverse effect.
The CEQ guidelines state that the 102 statement of a particular
project or pending legislation should be made "as early as possible"
and definitely prior to agency decision. Alternative actions that would
minimize the adverse impact of a program should be evaluated along with
the long and short term implications to "man, his physical and social
surroundings, and to nature ..." In a project with multiple agency
involvement the agency whos'e involvement comes first will be the first
to evaluate its environmental effects. This is usually a state agency
which femulates or approves a proposal before sending it on for federal
action. For example, state and local agencies initiate proposals for
construction of sewage treatment plants and recommend the proposals to
the EPA for funding. If state law requires an environmental analysis,
the appropriate state or local agency will usually complete the analysis
before referring the proposal to EPA.
The sponsoring agency uses all comments to modify its plans (where
deemed necessary) and to prepare a final statement. Where state or
regional review of a proposed action is necessary, copies of the draft
statement are sent either to clearinghouses established under the A-95
4-6
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Review Process (discussed in the next section) or directly to state
or local agencies having responsibility to develop and enforce environ-
12
mental standards.
The CEQ outlines the following distribution of environmental im-
pact statements: ten copies of draft statements, when prepared, are
sent to the CEQ; ten copies of all comments made on the final impact
statement likewise are sent to the CEQ; and ten copies of the final
102 statement go to CEQ including all comments from federal, state
and local agencies, private organizations and individuals. The CEQ
guidelines recommend that the draft statement should be submitted to the
CEQ "early enough in the agency review process to permit meaningful
consideration" of the possible environmental impacts.
The guidelines also propose that no administrative action shall
be taken on a project sooner than 90 days after a draft statement has
been circulated for comment, submitted to the Council, and, "except
where advance public disclosure will result in significantly increased
costs of procurement to the Government, made available to the public."
Neither should action be taken before 45 days after the final text of a
statement has been made available to the CEQ and to the public. In in-
stances where the time periods cannot be observed, the agency proposing
action should consult with the Council.
Problems with the 102 Process
Although the 102 process has necessitated a rethinking of the manner
in which a federally funded project is approached and implemented, there
are problems with the process that hinder its effectiveness. Many of
these deficiencies result from the relatively short time in which NEPA
has been in existence, from uncertainties and inconsistencies in its in-
4-7
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terpretation, and from varying degrees of willingness among the affected
agencies to comply with the Act. For instance, notification of the pub-
lic concerning a project has been left largely to the discretion of the
agency; often the public has been informed late in the consideration of
a project. Because decisions are sometimes made at the city or county
levels of government, it is important that public groups have access to
agency comments and can participate in the evaluation of a project before
major decisions are made. In the cases of a local sewer project or the
location of a highway, for instance, issues of growth and land use are
of central importance. Decisions concerning projects such as these are
often made by individuals or groups who exercise economic or political
influence in the community. According to a federal aide involved in the
operation of NEPA, developers influence the local agencies, "but the only
people who know that are the local people you don't get comments from."!?
The time at which comments regarding the 102 statement are made
available to the public was initially unclear; neither the Act nor the
original CEQ guidelines clarified the situation. The time element is a.
key factor relating to the effectiveness of the 102 statement; a state-
ment completed in the earlier stages of decision-making will have greater
impact than one distributed in the later stages of project development.
Since the Statute requires only that the final statement be made avail-
1 8
able to the public under the Freedom of Information Act, the question
of the point in the review process at which this information will be re-
leased was open to the discretion of the various agencies. This poorly
defined policy resulted in inconsistent procedures among agencies. The
Department of Transportation, for example, developed a general policy
of not releasing 102 statement comments to the public piecemeal but rather
4-8
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as a package when they were all received. The argument in favor of
releasing comments as a unit is that the public should examine all views
at one time and not over an extended period. But in an instance where a
project has been under consideration for an extended period of time, it
would seem that the public would have little impact upon the project were
it to see the comments after considerable time, expense, and planning
had been invested in it.
It seems clear that 102 statements would have a greater impact in the
decision-making process if the completed statements were available at
all organizational review levels of a proposal and at the earliest stages
of decision-making. The availability of a completed statement at all
review levels would serve three main functions. Each level would have
the opportunity to consider the environmental views of others before
reaching a decision. Second, early availability would encourage decision
makers to take environmental considerations into account when deciding
on the need for a particular project. Finally, "because each stage of
decision making may result in an action that could have a significant
effect upon the environment, it may be necessary at each stage to
update the statement."
The first revision in the guidelines in 1971 was a new emphasis on
"building environmental considerations into the planning process."
Where the interim guidelines had directed the agencies to assess envi-
ronmental impact before taking major actions, the revision ordered them
to do so "as early as possible, and in all cases prior to agency deci-
sion." The President had already stated this policy but the change in
the guidelines both reiterated the President's policy and emphasized
4-9
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that environmental considerations were to be integrated into existing
planning processes rather than merely written up in after-the-fact pa-
per work exercises. Since pre-existing procedures determined all actions
of the agencies except the production of environmental impact statements,
"7 ^
the change in emphasis was an important one.
The revised guidelines also directed that all environmental impact
statements be submitted to the appropriate state, regional and metropoli-
tan clearinghouse under the procedures of OMB Circular A-95 rather than
merely listed as being available in the Federal Register as was the case
earlier. As noted below, the A-95 coordinative device was designed to
ensure awareness of federal activities on the part of affected state and
local officials. The requirement that environmental statements go through
these channels thus substantially increased the certainty that such of-
ficials were aware of them.
Another point of confusion arose from the original CEQ guidelines
in regard to the "draft" environmental impact statement. The statute it-
self does not mention the draft statement; the CEQ developed the con-
cept as a means of implementing the process outlined in Section 102 (2)(c)
which states that "prior to making any detailed statement, the responsible
Federal official shall consult with and obtain the comments of any Fed-
eral agency which has jurisdiction . . . with respect to any environmen-
tal impact involved." The circulation of this initial statement is among
agencies and groups having an interest in the applicant's project; there
was no requirement that a public group have access to the statement at
this point.
In an attempt to establish a standard procedure, the guidelines state
that draft statements must be made public at the same time that they are
4-10
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circulated for comment to other federal agencies. The guidelines also
require that the statement must be made public 90 days before administra-
tive action is taken and that the comments of other agencies must be
23
released to the public as they are received.
Another ambiguity related to the timing of 102 statements concerns
the interpretation of the phrase "major federal action" in the Statute
that calls for the preparation of statements. Various state highway
departments, for instance, have held that "major federal action" applies
to the location of a highway, a decision which in many situations oc-
curred in the past. Highway opponents, on the other hand, have argued
that "major federal action" relates to federal approval of any aspect of
the project until construction begins. The question of when an impact
statement is necessary was raised in the case of Morningside-Lenox Park
Association v. Volpe, - F. Supp. - 3 ERG 1327 (N.D. Ga. 1971). The
court ruled that a 102 statement would be required on any ongoing federal
project on which "substantial actions" remained to be taken. As a result
of this case, an impact statement was required on an interstate highway
project in Atlanta for which planning had been completed and hearings
held before January 1, 1970.24
The scope of evaluation contained in an environmental impact state-
ment often varies, and greater emphasis has been placed upon the "primary"
rather than the "secondary" effects of a project. Essentially, primary
effects are those resulting directly from the project, while secondary
effects may not develop as an immediate result of the project. An impact
statement may evaluate the primary effect of a highway project by exam-
ining the projected auto usage and resulting emission levels, but neglect
long range secondary effects such as future growth patterns, social im-
4-11
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plications and aesthetic values which the project may influence. The
Federal Highway Administration (FHWA), for example, has not prepared
statements on programs that cover large areas (such as a state or a met-
ropolitan region), arguing that impact statements prepared on a program
basis would be so broad and contain so many generalities that they would
be meaningless and that coordination with other agencies would be extreme-
ly difficult.26
An examination of the possible secondary effects of a project would
consider the environmental interrelationships both in the vicinity of the
project and over the larger geographical area that ultimately might be
affected. A new highway may be an inducement for the development of
industrial, commercial, residential, or recreational uses, each of which
27
would have additional environmental impacts.
A thorough consideration of primary and secondary effects clearly
requires not only coordination and cooperation among agencies, but the
utilization of personnel with expertise in varied fields. It is doubt-
ful whether an agency sponsoring a project has the personnel with suffi-
ciently varied backgrounds to evaluate these effects. The Statute there-
fore encourages agencies in the process of preparing 102 statements to
consult with other agencies and individuals who do possess the expertise
needed to fully evaluate all possible impacts. To date, greater emphasis
has been placed upon the primary rather than the secondary effects.
It seems clear, however, that there is already increasing pressure
to examine secondary effects. A case in point is the requirement by
EPA that the states have in their air quality implementation plans pro-
cedures for evaluating what are in essence the secondary effects of such
indirect "sources" as shopping centers, sport complexes, and amusement
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parks. By and large these effects would be automobile generated air
pollution.
Indeed, in an additional set of revisions to the guidelines proposed
by the CEQ in May 1973, increased attention is given to secondary effects.
The proposed revisions state:
Secondary, as well as primary consequences for the environment
should be included in the analysis. Many major Federal actions,
in particular those that involve the construction or licensing
of intrastructure investments (e.g., highways, airports, sewer
systems, water resource projects, etc.), stimulate or induce se-
condary effects in the form of associated investments and changed
patterns of social and economic activities. Such secondary ef-
fects , through their impacts on existing community facilities and
activities, may often be even more substantial than the primary
effects of the original action itself .... Such population
and growth impacts should be estimated if expected to be signi-
ficant and an assessment made of the effect of any possible change
in population patterns or growth upon the resource base, including
28
land use, water and public services, of the area in question.
The final revisions provide that an impact statement must discuss the re-
lationship of the proposed action to land use plans, policies, and controls
for the affected area and that if any proposed action would conflict with
any provision of any federal, state, or local land use plan, the state-
ment should describe the extent to which the agency has reconciled its
proposed action with the plan, and should explain why the agency decided
29
to proceed despite the conflict.
While it is important that an agency examine the range of impacts
4-13
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which a project may foster, it is equally important that agencies be able
to discern those projects that require 102 statements. A detailed eval-
uation of every project would result in a massive amount of paper work,
which could hinder the effectiveness of the review process. In order to
facilitate a more comprehensive approach and to promote efficiency,
agencies should examine the environmental impacts of complete programs
rather than individual projects which relate to the program. Such an
approach would necessitate cooperation among agencies, but could result
in a more effectively designed program containing fewer projects that
U J * 30
have adverse impacts.
The various inconsistencies among the different agencies' approaches
to the 102 statement suggest that the value of the statement is clearly
a function of the manner in which it is prepared. An objective consider-
ation and evaluation of possible environmental impacts resulting from a
project and an investigation of alternatives to the proposed action should
be the heart of a 102 statement. These inputs into the statement, made
before and during the period in which decisions concerning the project
are being made, should not be composed, as has often been the case, at
the end of the decision-making process simply to satisfy the requirements
of NEPA. The consideration of alternatives has been a particularly weak
point in most statements, partly because the implementation of alterna-
tives might be the responsibility of other agencies. In any case, the
proposed revisions call for a "rigorous exploration and objective eval-
uation of the environmental impacts of all reasonable alternative actions,
particularly those that might avoid some or all of the adverse environ-
mental effects."31
That the burden of proof rests heavily upon the agency sponsoring
4-14
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the project seems to be a mixed blessing. While the agency is now re-
quired by law to consider and evaluate environmental impacts, one can ar-
gue that the sponsoring agency might be less than objective and this
might result in situations where analyses may be manipulated to justify
predetermined goals.
The interpretation of NEPA and Section 102 (2) (C) in the judicial
process is clearly of primary importance in determining the ultimate ef-
fectiveness of 102 statements. It has been argued that it may be neces-
sary for the courts to move beyond ensurance of the mechanical function-
ing of Section 102(2)(C) to a point where the agency actively considers
and initiates review of 102 statements at various stages of project de-
32
velopment. If the courts were to interpret the merits of an adminis-
trative decision, this "would have the effect of forcing new substance
into agency decision-making or ... of permitting environmentalists to
challenge a decision successfully on grounds that it contradicts the
thrust of the impact statement. . . ." Traditionally, the court does
not judge the merits of an administrative decision unless the plaintiff
can show an "arbitrary or capricious" action, or one not supported by
"substantial evidence." But it appears likely that the courts will bring
34
NEPA to bear even more directly on the substance of agency decision making.
If this is the case, many new issues will need to be resolved. Several
district and circuit court opinions have held that NEPA imposes substan-
tive duties on agencies to make environmentally sound decisions. Although
the latitude of agency discretion is still quite wide, the process of cir-
cumscribing it through legal interpretation seems to be continuing.
Information deficiencies have remained even though the quality of
environmental impact statements has improved over time. The lack of before
4-15
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("base line") and after data from previous projects sponsored by an agency
greatly impedes the forecasting of impacts of projects under consideration.
The lack of base line data for present projects threatens to perpetuate
this problem. An example of this type of probem is the attempt to deter-
mine the impact on air quality of a new major highway in a suburban or
rural area when the background readings for the major air pollutants are,
if not nonexistent, inadequate.
Finally, it should be noted that an apparent premise of NEPA's en-
vironmental statement requirement was that it would result in better de-
cisions from an environmental standpoint. Yet while such information
would seem to be a prerequisite for better decisions, it obviously does
not guarantee them. Indeed, both Richard Andrews and Robert Gillette,
writing in 1972, argued that neither the federal agencies nor their re-
spective oversight committees appeared to have significantly changed their
criteria for decision-making as a result of the new information gathered.
THE A-95 REVIEW PROCESS
OMB Circular No. A-95 provides the structure for implementing sec-
tions of three Acts: Title IV of the Inter-governmental Cooperation Act
of 1968, Section 204 of the Demonstration Cities and Metropolitan Develop-
ment Policy Act of 1966, and Section 102 (2) (C) of NEPA.'S6 These sections
share a similar goal—the coordination of federal programs and projects
with those envisioned by state, regional and local governmental agencies.
Among other things, the A-95 Review Process provides the mechanism where-
by state and local agencies authorized to "develop and enforce environ-
mental quality standards" may assess the environmental impact of a pro-
ject for which an application for Federal funding will be submitted. Althouah
the A-95 process may be used to obtain state and local comment on the 102
4-16
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statement itself, the actual A-95 reviews occur prior to application
for funding, while the impact statement itself is prepared and submitted
for review by the federal granting agency subsequent to the application.
Project Notification and Review System
The Project Notification and Review System (PNRS) of A-95 attempts
to encourage coordination by providing a system whereby applicants for
federal monetary assistance must notify both the state and regional or
metropolitan clearinghouse of intent to apply for a grant. State, re-
gional and metropolitan comprehensive planning agencies are designated
as clearinghouses; those on the state and regional level are designated
by the Governor, while a metropolitan clearinghouse is recognized as
such by OMB. While Section 204 requires the establishment of metropol-
itan clearinghouses, governors are not required to designate state or
regional clearinghouses under the A-95 process. Nevertheless, state
clearinghouses have been established in every state as well as in the
District of Columbia and Puerto Rico. A majority of states have desig-
nated regional clearinghouses.^° A clearinghouse has thirty days to
indicate an interest in a project and to arrange for consultation with
the applicant. If the clearinghouse indicates no interest in the pro-
posed project, the applicant needs no further consultation with the clear-
inghouse. Should the clearinghouse wish to confer with the applicant,
a conference is arranged during which issues and possible conflicts are
discussed. By the time the application is completed, conflicting issues
will have been identified, and, if these issues have not been resolved,
39
the clearinghouse's comments will accompany the application. The pri-
mary purpose of the clearinghouses is to aid applicants to develop the
best possible project that does not conflict with plans or programs of
other jurisdictions or agencies. The reviews are strictly advisory,
4-17
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although a negative review can be influential in determining the outcome
Ł T ,.• 40
of an application.
PNRS provides for an input to 102 statements by state and local
agencies which are authorized to develop environmental quality standards.
It is the responsibility of clearinghouses to identify state or local
environmental agencies, inform them of proposed projects that may have
an impact upon the environment, and give them the opportunity to make
appropriate comments. The clearinghouse itself may possess the exper-
tise to comment upon the environmental impact, and it may assist the ap-
plicant in preparing impact data or it may undertake other action to fa-
41
cilitate input into the 102 statements.
Direct Federal Development
Part II of Circular A-95 requires that federal agencies sponsoring
the development of federal projects consult with state and local govern-
ments that might be affected by these projects. Concerning the prepar-
ation of 102 statements, agencies are required to seek the comments of
state and local environmental agencies. The clearinghouses identify the
agencies that may have an interest in the environmental impact of a pro-
ject; thus, the clearinghouses are the channel through which the CEQ re-
ceives the required state and local comments on the environmental impacts
42
of projects.
State Plans
Certain federal assistance programs, such as those involving the de-
velopment of land use for housing, industrial, governmental or other pur-
poses, or the development and conservation of natural resources, require
the submission of state plans. Part III of Circular A-95 gives the Gov-
ernor the opportunity to review such plans and to relate development stra-
4-18
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tegies among the various federally supported state programs to each other
and to strategies developed through the state planning process. The
review would be part of an ongoing planning process and should relate
44
this process to specific regional and local projects.
Coordination of Planning in Multi-Jurisdictional Areas
The primary purpose of Part IV of the Circular is to coordinate geo-
graphically and functionally all federally funded programs encompassing
a regional area. Fulfilling this requirement necessitates bringing the
boundaries of federally funded planning and development districts into
conformity with each other and with state districts. Applicants for
federal assistance for projects covering a multi-Jurisdictional area
must coordinate their planning with other related programs. Applicants
are encouraged to identify related planning activities and point out what
attempts at coordination are being established. Although this section
does not specify techniques which can be used to further coordination
and prevent overlapping and duplication of proj ects, such measures as
joint staffing, research and data gathering, and utilization of common
statistics and projections are recommended.
Accomplishments and Shortcomings of A-95 Review
Perhaps the most significant accomplishment of the A-95 Review Pro-
cess has been to provide a structure for increased comprehensive planning
through a strengthened communications network between jurisdictions and
46
various governmental levels. A well-staffed clearinghouse has the po-
tential of initiating an effective clearance system whereby various in-
dividuals and agencies in an area are alerted to potential federal action.
The clearinghouses provide a forum for discussing a proposed project
4-19
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and enable the applicant to outline his proposal in a way that maximizes
his objectives while taking into account other regional goals.
When local officials and clearinghouse staffs are alert to the clear-
inghouse function, the process can be used to inform local government on
the availability and potential of categorical programs. The procedure
also provides the basis for supplying localities with technical assistance.
In the past, a local government would be reluctant to request such assis-
tance from the federal government, because in doing so "it is likely to
expose its weaknesses, therefore hurting its competitive position for
48
federal funds.' The clearinghouses exist in a more neutral or suppor-
tive relationship with local government and often possess the expertise
to assist localities with planning activities.
The A-95 process has also exhibited several general shortcomings.
In attempting to evaluate an application on the basis of conformity with
regional planning, most clearinghouses discover that regional plans do
not exist. This situation makes it difficult to evaluate the impacts of
plans or programs relating to a region. Furthermore, the quality and
expertise of the clearinghouse staff varies. Some clearinghouses have been
in existence for years and have secured strong local support and competent
personnel while others do not have their own staffs and have been created
49
only recently to implement A-95. Another shortcoming of A-95 review
concerns its acceptance by regional federal agencies. Many agencies have
exhibited a lack of interest in the process, uncertainty with the procedure
and its requirements, and,at times, a failure to respond to clearinghouse
comments on applications.
When the clearinghouse is also a Council of Government (COG), the
A-95 process provides the COG with what is essentially its only authority.
4-20
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In attempting to coordinate and evaluate regional activities on the basis
of regional planning goals, the COG clearinghouse often finds itself in
an awkward position in relation to its member governments, from which it
receives its legitimacy, and to the federal government. The member gov-
ernments tend not to view the clearinghouse role as influencing regional
policy, but rather as coordination, a "communications forum, and an insur-
ance device for the continued flow of federal funds to local governments."
The federal government, on the other hand, encourages the COG to develop
a regional planning perspective, although such planning generally does
not exist.
Changes in budgetary policies under the Nixon Administration have had
a significant effect upon both the clearinghouses and the A-95 review.
Categorical grant programs, along with the Department of Housing and Urban
Development's 701 planning program, are the basis for the existence of
the COG clearinghouses and A-95; uncertainty about the continuation of part
of these funds place the future of both in some doubt. The curtailment
of categorical grant programs essentially removes the sanctions for A-95
review, and the review process is central to the clearinghouse's existence.
Although the impacts of the budgetary changes are uncertain, it is clear
that federal resources in the form of categorical grants will be reduced.
Not only will the restructuring of federal monetary resources and their
availability restrict the A-95 process as it now exists but it also carries
implications for the future role of clearinghouses and A-95 as steps
toward rational comprehensive planning on a regional level.
Possibly because of this impact on the clearinghouses, the Office of
Management and Budget published in the Federal Register of November 28, 1973
4-21
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revisions in the A-95 guidelines. The new guidelines were effective Jan-
uary 1, 1974. There are four major changes:
1) In Part I, if a clearinghouse recommends against a program and
the federal agency approves it, the federal agency must now explain its
action to the clearinghouse in writing.
2) In Part III, provision is made to provide federal agencies with
information about federally funded state programs and multisource pro-
grams . The multisource programs are those funded by two or more federal
agencies including the Environmental Protection Consolidated Program
Grants.
3) In Part IV, the original guidelines said area planning should
be coordinated with the comprehensive planning agencies. The revision
requires the coordination and sets up a procedure for such coordination.
4) The list of programs affected by the revision has been expanded
from 100 to 146.
NEPA, A-95 REVIEW,AM) AIR QUALITY
Richard Andrews has concluded that further progress in the achieve-
ment of NEPA's purposes will probably require four elements: (1) preser-
vation of the broadened legal recourse secured by NEPA, in order to guar-
antee administrative accountability to all public groups affected by a
project; (2) development of a more sophisticated evaluation framework for
impacts and their alternatives; (3) refinement of the means of identify-
ing, comparing, and trading off conflicting objectives; and (4) development
of more effective ways for incorporating the preference of all persons
affected by administrative actions into the process of planning and pro-
ject selection.
4-22
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It is important to note these elements because the environmental
impact statement is not a single action forcing mechanism, but rather a
dual process: the procedure of inter-agency review and comment procedure,
and the availability of the statement and the comments for direct public
review, comment, and legal action. It is often argued that inter-agency
coordination has not been very effective in bringing about administrative
changes that would encourage the consideration of environmental values
rather than non-federal pressures (law suits). The increased availability of
judicial review as a resource, for example, has lent new effectiveness to the
participation of non-federal individuals and groups whose environmental values were
at odds with those traditionally reflected in the agencies' policies.
Still, inter-agency review has a latent potential which has not
been fully utilized. A variety of approaches have been suggested; these
include general rulemaking , umbrella program statements, overview state-
ments, and "lead agency" statements. Although NEPA requires an agency to
balance all competing factors and to consider all reasonable alternatives,
it does not dictate that this be done entirely anew in each decision with-
out the assistance of general rules and past experience. Decision makers
are permitted to cut their more complicated decisions down to manageable
size. Advance determination of program policy through rulemaking can
implement NEPA and at the same time avoid repetitious reexamination of
basic principles in the context of each individual action. Since many
federal agency programs involve a multiplicity of individual actions,
such as grants or permits administered under relatively uniform policies,
NEPA's requirements can often best be implemented by writing environmental
policies into the general rules governing a program.
Indeed, the final CEQ guidelines released August 1, 1973 contain
4-23
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stricter requirements for agency preparation of impact statements con-
cerning an entire program rather than only individual actions. The guide-
lines call on agencies to give special attention to determining which
action would most appropriately serve as the subject of the statement,
and note that in many cases broad program statements will be required to
assess the environmental effects of a number of individual actions or
to assess environmental impacts that are associated with a series of
agency actions.
Thus, the preparation of a single statement on a program as a whole
rather than by filing separate environmental impact statements on indi-
vidual actions will be given more attention in the future. An umbrella
program environmental impact statement affords an occasion for a more com-
prehensive look at effects and alternatives than is practicable in a
statement on an individual action. The strongest feature of such a pro-
gram is that it ensures the consideration of cumulative impacts likely
to be slighted in a case-by-case analysis.
Prepared jointly by a number of agencies, an overview statement is
appropriate for new policy initiatives at an inter-agency level. In the
shaping of policy on a major issue with environmental implications, when
it is necessary to explore a broad range of alternative actions that
fall outside the jurisdiction of any one agency, an overview statement
can theoretically reveal deficiencies early enough so that the program
can be modified or abandoned.
"Lead agency" statements are potentially the most significant with
regard to the relationship of air quality to land use planning. Under
this approach, a lead agency is selected and assigned the responsibility
for preparing a statement prior to implementing a program or policy.
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This approach is most appropriate when the action is a single project
in which multiple agencies are involved by virtue of their separate legal
authorities. Each agency's decision may relate to only a part of the pro-
ject, but the impact statement would have to consider the cumulative impact.
The CEQ guidelines provide that the lead agency is the federal agency that
has primary authority for committing the federal government to a course of
action. Three major factors are involved in the selection of the lead agency:
(1) which agency became involved in the project first, (2) which has the
heaviest involvement, and (3) which is the most expert with respect to the
project's environmental effects.
EPA's responsibilities are clearly stated in section 309 of the Clean
Air Act, which states:
" (a) The Administrator shall review and comment in writing
on the environmental impact of any matter relating to duties and
responsibilities granted pursuant to this Act or other provisions
of the authority of the Administrator, contained in any (1) legi-
slation proposed by any Federal department or agency, (2) newly
authorized Federal projects for construction and any major Federal
agency action other than a project for construction to which sec-
tion 102(2) (C) of Public Law 91-190 applies, and (3) proposed
regulations published by any department or agency of the Federal
Government. Such written cortment shall be made public at the con-
clusion of any such review.
"(b) In the event the Administrator determines that any such
legislation, action, or regulation is unsatisfactory from the stand-
point of public health or welfare or environmental quality, he shall
publish his determination and the matter shall be referred to the
Council on Environmental Quality."
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It is important to note that in almost all projects having an air
pollution potential, EPA is not the lead agency since it is not the spon-
soring one. This means that EPA's review generally will be late in the
process, and initial project evaluation will be done by other agencies.
For this reason EPA publicizes its procedures for project evaluations so
that the initial evaluation procedures will be technically adequate. In
general, impact statements should describe the environmental properties
of the area to be affected by the project before changes occur and should
indicate anticipated short-range and long-range primary and secondary effects.
This consideration would include vegetation, topography, meteorological
conditions, and present and future land use. Regarding the dispersion of
pollutants, the statement should identify each pollutant, the vectors of
transport, the quantities dispersed and the areas to which they will be
dispersed. The agency preparing the impact statement should consult with
state or regional air pollution control agencies to determine whether the
proposed action will be in conformance with air pollution control regu-
lations and the state implementation plan, and whether the action will
result in the emission of a hazardous pollutant as defined in the Clean
Air Act, Section 112.
Due to limitations mentioned earlier, input into air quality decis-
ion-making through A-95 appears to be rather slight at this time; but
although the 102 statement often lacks the weight and consistency of eval-
uation that those concerned with environmental quality would prefer.,
it is a concept which, through sincere and objective application, could
produce significant impact.
In evaluating the A-95 process as a means of introducing air quality
considerations into urban planning, it is well to bear in mind that the
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thrust of Circular A-95 is toward coordination among various levels of
government; its primary goal is the avoidance of conflicting projects and
programs. A prerequisite for coordination is the establishment of channels
through which contact and communication can take place; the A-95 process
provides these channels. This system provides an opportunity for the de-
velopment of improved projects and programs and for increased efficiency
through planning. Tne systematic communication between the federal gov-
ernment and state and local governments involved in related planning and
development activities should result in more effective and economical de-
velopment. With regard to environmental quality, Circular A-95, par-
ticularly Parts I and II, essentially provides the structure whereby state,
regional and local comments may be attached to an environmental impact
statement; the preparation of the statement itself is the responsibility
of the applicant.
Although the A-95 process has established a structure through which
inputs regarding air quality may be introduced into the decision-making
process, certain limitations reduce its effectiveness for this purpose.
Since only federally funded projects may be reviewed under A-95, pro-
jects not receiving federal assistance, although possibly having a very
significant impact upon air quality, are exempt from review. An agency's
ability to comment upon the air quality impact of a project also varies.
An adverse impact is most severe in the immediate vicinity of the pollu-
tion source, but the city or regional planning agency charged with re-
viewing a project often does not possess the expertise to evaluate its
impact upon air quality. Perhaps the most fundamental reason why concern
with water quality, sewage treatment facilities, and land use predomin-
ates over air quality considerations is that planners traditionally con-
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cerned themselves with these interests and developed plans accordingly.
Few planning agencies possess a fully developed air resources plan or the
data and personnel necessary to evaluate air quality. As noted earlier,
few regional agencies even have a detailed comprehensive land use plan.
Finally, most agencies have limited procedures for obtaining envi-
ronmental expertise available in other agencies. A systematic approach
is needed to ensure that such expertise is identified and utilized to the
fullest extent possible. An agency might first outline the environmental
elements of its activities for which outside evaluation must be sought.
The agency could then select the federal, state, or local agency that could
best furnish the needed knowledge and make arrangements for obtaining it.
As a final consideration, an agency should develop procedures to ensure
that agencies possessing expertise review and comment on relevant impact
statements.
THE PERMIT SYSTEM
The permit system is a technique for implementing that part of air
pollution regulations which applies to point source emissions. In issuing
permits to construct and certificates to operate, the department or agency
in charge of enforcing air pollution regulations considers such items as
design, operation and maintenance of equipment used in controlling point
source emissions. In general, the permit system provides for agency re-
view of plans for construction, modification, or operation of source
equipment or processes that have the potential of emitting pollutants.
Before commencing such construction, modification, or operation^the indus-
try (or owner of the equipment) must apply for a permit. The applicant
usually provides information necessary to evaluate the estimated emissions
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from the source. Permits to construct, install and operate this equip-
ment will usually be issued if the reviewing agency determines that emis-
sions will conform to applicable standards.
The registration system is sometimes considered as an alternative to
the permit system and requires less administrative capability. Under the
registration system, those planning to build a facility emitting air pol-
lutants are required to submit to a designated body information relating
to the location of the proposed operation, a general description of its
functioning, and the nature of the expected emissions. The body to which
the plan is submitted does not, as under the permit system, approve or
disapprove the operation; reliance is placed upon the applicant for meet-
ing emission requirements. Under the requirements of the Clean Air Act/
the registration system has been deemphasized in favor of the permit system.
In actual practice the permit system operates as follows: An applicant
must apply for a construction permit before work begins on the installa-
tion. After the permit is issued an inspector visits the construction
site to check the equipment against the submitted plans; if performance
standards must be met, source testing will be done before the permit to
operate is issued. In the event that inspection reveals noncompliance
with the plans or violation of an air pollution ordinance, notice is gi-
ven to the operator of the deficient equipment as well as a designated time
by which to correct the problem. Re-inspection is then made and action
taken according to the policy of the agency.
The complexity of applications for construction permits varies ac-
cording to the size of the proposed installation. Plans that are sub-
mitted to an agency are usually drawings showing the general arrangement
of the operation and should include control devices. For industrial pro-
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cess equipment, stack heights and the distance to the nearest receptors
are considered useful for evaluation purposes. "Sufficient data" should
be included in the plan so that the reviewing agency can evaluate the
ro
equipment against local ordinance criteria. The interpretation of
"sufficient data" has traditionally been left to the local agency.
An effective permit system obviously requires that the air pollution
control agency possess the necessary expertise to determine from plans and
specifications whether a proposed installation will meet emissions limi-
59
tations. In areas with less than 100,000 population, the conventional
wisdom has been that the plan examination process could be performed in
conjunction with other governmental reviews; in larger urban areas, the
review should be performed to a greater extent by an air pollution con-
trol engineer. "Cooperation and coordination" of other departmental
units that may be affected by the air pollution impact of the proposed
construction has been considered essential to the system. All concerned
agencies should have reviewed the project before the permit is granted.
The Los Angeles Permit System
In 1947 the California Legislature enacted a bill authorizing coun-
ties to establish air pollution control districts. These districts were
given the power to administer a permit system requiring a permit to con-
struct and a permit to operate. The Los Angeles County Air Pollution
Control District (APCD) was activated in October 1947. The rules for
the Los Angeles County program prescribe that an Authority to Construct
be obtained before "construction, alteration, or replacement of any e-
quipment capable of emitting or controlling air contaminants." The
Permit to Operate must be obtained before operation of the equipment be-
gins. Not all equipment emitting pollutants falls under permit system
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review; some, notably vehicles, are exempt from State law, while other
equipment is exempted by the District. However, equipment not included
under the permit system must still be operated in compliance with emission
standards.
The system is administered by engineers who are responsible for eval-
uating permit applications, determining whether the proposed installation
will be in compliance with air pollution laws, and approving or denying
permits. Instead of requiring a separate application and permit for each
individual equipment item, the APCD has developed a "permit unit" concept
which groups items operating as a functional unit into one application and
one permit.
The APCD has stated that an inventory of pollutants emitting from
stationary sources indicated that the permit system has prevented 5,560
tons of pollutants from entering the air each day. The permit system
alone, according to the District, has been responsible for achieving con-
trol of more than 78 percent of all emissions from stationary sources.
The Permit-System as a Locational Control Technique
In addition to meeting the formal objective of achieving compliance
with the regulations of the air pollution control agency, the permit
system aids in the development and maintenance of an inventory which pro-
vides data on industries, equipment, and processes that emit air pollu-
tants in a given jurisdiction. Such emission data usually include the
fuel usage by specification and quantity, estimated emission rates,
actual emission rates from stack tests, location of equipment, and the
period of time in which the equipment is in operation. This information
is of considerable utility since the evaluation of an application for a
permit normally is based on engineering calculations by the air pollution
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control officer.
There is evidence, however, of a trend towards introducing land
use planning considerations into the decision along with the engineering
calculations. In addition to requiring that a facility or equipment meet
certain specified emission rates, it is becoming the rule that the permit
will be issued only if the installation and operation of the equipment
will not prevent the attainment or maintenance of applicable air quality
standards. This changing interpretation of the use of the permit
system is extremely significant. If the permit required only that appli-
cable emission standards be met, sources could continue to concentrate
in a certain location and, even though each source would emit relatively
few pollutants, the sheer number of point sources concentrated at one place
would exceed the assimilative capacity of the ambient air, thereby vio-
lating the air quality standards. The existence of such "hot spots" is
fairly common since industries often concentrate to take advantage of
available low cost transportation (water, rail or highway), water supply,
and other factors.
With a new locational constraint in operation, it is obvious that
the permit system will influence industrial location. Most likely, the
long range impact of the system will be to spread point sources over a
region --at least more so than in the past -- to increase the assimila-
tive capacity of the air. Thus, the system becomes a land use planning
tool in addition to a pro forma engineering calculation. Although it is
often stated that the air pollution control program should "interface
with zoning and planning, particularly in the areas of meteorology,
emissions inventory, air monitoring, air pollution modeling, the permit
system and enforcement," this interaction is not operating effectively
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at present. It is expected, however, that over the next few years the
permit system can join the NEPA and A-95 review process as a potentially
effective means of relating land use planning to air quality management.
INDIRECT SOURCES
In April 1973/EPA proposed revised regulations for the preparation,
adoption and submission of state implementation plans pursuant to the Clean
Air Act Amendments of 1970; the revised regulations would require increased
consideration of air quality in the design and location of new stationary
sources. The original guidelines for the preparation of state implementa-
tion plans, discussed earlier, required states to establish procedures for
reviewing new stationary sources of air pollution to determine if the con-
struction of such a source would inhibit the state from achieving or main-
taining the national ambient air quality standards specified under the
1970 Act. A stationary source of air pollution has traditionally been de-
fined as one that emits its own pollutants and directly influences air
quality and thus is regulated under the permit system. However, the EPA
proposal extended this definition to include facilities that "may affect
air quality by indirect means, primarily by means of the mobile source
activity associated with them." Such indirect sources include airports,
shopping centers, amusement parks, highways, sports complexes, and other
facilities that may have an indirect impact on achieving and maintaining
the national ambient air quality standards. The proposal would thus ne-
cessitate greater consideration of design and locational factors that
might affect air quality. Each state would also be required to develop
legally enforceable procedures for reviewing the location and design of
these complex sources before construction is initiated and for preventing
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construction if the facility "cannot be made compatible with air quality
requirements. °
The regulations, released in June 1973, were essentially unchanged
except that a requirement was added for the identification of such areas
as counties, urbanized areas and standard metropolitan statistical areas
with potential for exceeding national air quality standards during the next
10 years. Identification of these areas was to be sukmitted by March 1974;
By June of 1975,states must submit to EPA an analysis of projected growth
impacts on air quality for each potential problem area. Where necessary,
the states must submit a plan describing measures that will be taken to
insure the national air quality standards for 10 years. The analysis will
have to deal with all the significant air quality implications of growth
and development, including not only the increased air pollution arising
directly from new commercial, industrial, and residential development but
also that arising from increases in demand for electricity and heat,
motor vehicle traffic, and production of solid waste.
The indirect source regulations are a logical extension of the chang-
ing view on the use of the permit system. In this case, the regulations
are aimed primarily at carbon monoxide (CO) emissions. CO, a fairly stable
pollutant, does not contribute significantly to photochemical reactions
but clearly achieves high concentrations around the indirect sources. Al-
though the states have not promulgated their regulations as of this wri-
ting, one can conclude that they will have to work out an accommodation
with other required federal reviews. For example, section 102(C) of the
National Environmental Policy Act, discussed earlier, and section 109(j)
of the Federal-Aid Highway Act impose similar requirements with respect
to certain types of facilities, notably highways and airports. To avoid
4-34
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duplication of data gathering and analysis and jurisdictional conflicts,
the states will have to work out a well defined process for integrating
reviews, and this will inevitably lead them closer to a comprehensive
state planning mechanism. The regulations become operational on January
1, 1975.7°
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NOTES
1. National Environmental Policy Act, 42 U.S.C. Sec. 202 (1969).
2. Office of Management and Budget Circular No. A-95 (Revised),
[Hereafter cited as OMB Circular No. A-95].
3. National Environmental Policy Act, 42 U.S.C. Sec. 102(2)(C).
4. Robert Gillette, National Environmental Policy Act: How Well
Is It Working? 176 Science 146 (April 14, 1972) [Hereafter cited as
Gillett].
5. Courts Say NEPA is a Law for All People, 6 Fed. Report 210
(No. 3 March 1972). Although NEPA created a judicially cognizable in-
terest in environmental matters which is capable of being enforced by the
suit of private citizens, that interest often is severely curtailed if
these public interest representatives are required to develop the bur-
den of proof. The private citizen often enters late in the decision-
making process and the applicant for Federal approval usually has the
advantage of expertise and financial resources which may be unavailable
to the citizen. In regard to the concept of public interest, therefore,
102 statements require Federal agencies to fulfill "their responsibility
of actively protecting those interests." See Eva H. Hanks and John L.
Hanks, An Environmental Bill of Rights: The Citizen Suit and the Na-
tional Environmental Policy Act of 1969, in Environmental Law Review
1971 189-90 (H. Floyd Sherrod ed. 1971).
6. NEPA Challenges the Nation's Plans and Priorities, The Con-
servation Foundation Letter 5 (Rice Odell ed. May 1972).
7. Gillette 148.
8. Lee M. Talbot, Environmental Impact Statements at the Federal
Level, in Proceedings of the Symposium on Environmental Assessment of
Resources Development 12 (June 1, 1971).
9. 36 Fed. Reg. 7724 (1971).
10. 36 Fed. Reg. 7724 (1971).
11. Ibid.
12. Council on Environmental Quality, Environmental Impact State-
ments, 1 102 Monitor 4 (No. 10 November 1971). A Clearinghouse is
a planning agency capable of identifying the relationship of a Federal
project to the plans of State or local governments. There are three
types of designated clearinghouses: State, Regional, and Metropolitan.
The State and Regional clearinghouses are designated by the state Gov-
ernor; a Metropolitan clearinghouse is recognized as such by the Office
4-36
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of Management and Budget for the purposes of implementing section 204
of the Demonstration Cities and Metropolitan Development Act of 1966.
13. 36 Fed. Reg. 7726 (1971).
14. Ibid.
15. 38 Fed. Reg. 10856 (1973).
16. NEPA Challenges the Nation's Plans and Priorities, supra note
6, 5-7.
17. Ibid., 7.
18. Administration of the National Environmental Policy Act, Hear-
ings Before the Subcommittee on Fisheries and Wildlife Conservation of
the Committee on Merchant Marine and Fisheries 20 (No. 91-41 December 1970)
19. Ibid., 142.
20. Improvements Needed in Federal Efforts to Implement the Na-
tional Environmental Policy Act of 1969, Report to the Subcommittee on
Fisheries and Wildlife Conservation of the Committee on Merchant Mar-
ines and Fisheries 19 (May 1972).
21. 36 Fed. Reg. 7724 (1971).
22. Richard N.L. Andrews, Environmental Policy and Administrative
Change: The National Environmental Policy Act of 1969, 1970-1971 129
(unpublished dissertation U. of N.C. 1972) [hereafter cited as Andrews],
23. 38 Fed. Reg. 10856 (1973).
24. Angus Macbeth and Peter W. Sly, Federal-Aid Highways: Public
Participation in the Administrative Stages, 1 Natural Resources Defense
Council Newsletter xxiii (No. 3 1971).
25. NEPA Challenges the Nation's Plans and Priorities, supra note
6, 7-8.
26. Improvements Needed in Federal Efforts to Implement the Na-
tional Environmental Policy Act of 1969, supra note 20, 23.
27. U.S. Environmental Protection Agency, Guidelines for Prepara-
tion of Environmental Statements for Reviewing and Commenting on Envi-
ronmental Statements Prepared by Other Federal Agencies, (rev. ed. 1973)
17-18.
28. 38 Fed. Reg. 10856 (1973).
29. 38 Fed. Reg. 20549 (1973).
4-37
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30. NEPA Challenges the Nation's Plans and Priorities, supra note
6, 8.
31. 38 Fed. Reg. 10856 (1973).
32. NEPA Challenges the Nation's Plans and Priorities, supra note
6, 4-5.
33. Ibid., 4. In a case involving the Calvert Cliffs nuclear plant
in Maryland, the court stated that "purely mechanical compliance" with
NEPA is not adequate, but there must be "full good faith consideration of
the environment." See Calvert Cliffs Coordinating v. Atomic Energy Comm.,
449 F.2d 1109, B.C. Cir. (1971).
34. See Frederick R. Anderson, NEPA in the Courts-- A Legal Analysis
of the National Environmental Policy Act (1973).
35. Andrews 461; Gillette 147.
36. Intergovernmental Cooperation Act, 40 LJ.S.C. Sec. 531-35,
42 U.S.C. Sec. 4201, 4211-14, 4221-25, 4231-33, 4241-44 (1968). Demon-
stration Cities and Metropolitan Development Act, 42 U.S.C. -Sec. 3301
(1966). National Environmental Policy Act, 42 U.S.C. Sec. 4321 (1969).
37. The Impact of Environmental Impact Statements, 38 Planning
ASPO Newsletter 89 (June 5, 1972). See also, OMB Circular No. A-95.
38. William K. Brussat, A-95: Evaluating the Process of Review,
Planning 1971, 58 (1971) [Hereafter cited as Brussat].
39. OMB Circular No. A-95 2-3.
40. Brussat 59.
41. OMB Circular No. A-95 6-7.
42. Ibid., 8-9
43. Ibid., 10.
44. Vincent T. Smith, The Intergovernmental Cooperation Act of
1968: Opportunity for State Government, Planning 1971, 63 (1971).
45. OMB Circular No. A-95 12.
46. Brussat 59.
47. Melvin B. Mogulof, Regional Planning, Clearance, and Evalua-
tion: A Look at the A-95 Process, 37 J. Amer. Inst. of Planners 420 (No.
6 November 1971) [Hereafter cited as Mogulof].
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48. Ibid.
49. Brussat 59.
50. Mogulof 421.
51. Ibid. 419.
52. 38 Fed. Reg. 32873 (1973).
53. Andrews 463.
54. 38 Fed. Reg 20549 (1973).
55. Clean Air Act, 42 U.S.C. Sec. 1857 et seq. (1970).
56. Jean J. Schueneman, Air Pollution Control Administration, in
Arthur C. Stern (ed.), Air Pollution, Second Edition, III (1968), 779
[Hereafter cited as Schueneman].
57. Charles W. Gruber, Source Inspection, Registration, and Ap-
proval, in Arthur C. Stern (ed.), Air Pollution, Second Edition, II
(1968), 579-80 [Hereafter cited as Gruber].
58. Gruber 592.
59. Schueneman 778.
60. Gruber 592-4.
61. Robert G. Lunche and others, Administration of a Permit System,
19 J. Air Pollution Control Ass'n 1 (January 1969), 10.
62. Ibid., 9-14.
63. Ibid., 14.
64. Pacific Environmental Services, Guide to Engineering Permit
Processing (prepared for EPA, Office of Air Programs 1972) 4.1. For
requirements under the Clean Air Act see chapter 2 and 37 Fed. Reg.
10842 (1972); 37 Fed. Reg. 15082 (1972).
65. Guide to Engineering Permit Processing, 4.14.
66. See chapter 9 for a discussion of a potentially effective program.
67. 38 Fed. Reg. 9599 (1973).
68. Ibid.
69. 38 Fed. Reg. 15834 (1973).
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70. 39 Fed. Reg. 7270 (1974). This statement on indirect sources
was released too late to by analyzed in this text.
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CHAPTER FIVE
BUFFER ZONES AS A CONTROL OVER AIR POLLUTION:
AN APPLICATION OF THE EMINENT DOMAIN AND ZONING POWERS
The utility of buffer zones to minimize the adverse impacts of one
type of land use upon another depends to a great extent upon the fact
that this impact is reduced as the distance from the source increases.
The relationship between the source, the transfer medium (the atmos-
phere) and the receptor is a complex one. Consideration must be given
to such variables as the nature of the "negative externality" -- its
intensity, frequency and duration -- physical and meteorological
properties of the location, and relationships that exist between differ-
ing externalities generated from the same source. The quantitative informa-
tion available is inadequate for the formulation of meaningful policy
guidelines, and vague generalizations and inconsistencies are common in
the literature. This chapter discusses the "state of the art" of reducing
the impact of air pollution and noise through the use of buffer zones and
the legal tools available to accomplish this end. Distance is the pri-
mary consideration, although attention is also given to the physical
properties of trees and vegetation as "absorption devices" and to the
trade-offs one might make between distance and the erection of physical
barriers. A distinction must also be made between the use of a buffer
5-1
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zone to minimize the impact from point sources and from line sources.
A point source is stationary while a line source refers to a corridor
containing mobile emitters (a highway, for example). Four major com-
ponents of the environment are examined: air pollution, micro-climate,
water quantity and quality, and noise.
Particular attention is given to the use of buffers along highways
since the automobile is such a pervasive polluter in the urban environ-
ment. The internal combustion engine of the automobile produces fuel
consumption by-products (carbon monoxide, hydrocarbons and oxides of
nitrogen) which, when emitted into the atmosphere through the automobile's
exhaust system, become a major cause of degradation of air quality. The
automobile's adverse environmental impact is particularly acute alongside
heavily traveled major highways. However, this adverse impact can be
made less severe if the highway is lined on each side with a buffer zone
that would separate emitters from receptors. These zones can act to
counter the effect of automobile emissions in a number of ways. First,
a zone of open space in public ownership necessarily precludes any pri-
vate development of lands immediately adjacent to the highway. The sig-
nificance of keeping these adjacent areas free from development is three-
fold: (1) If there are no buildings lining the highway, the automobile's
pollutive emissions will disperse more rapidly and effectively, thus
reducing the pollution concentration in the immediate highway area.
When a highway is built among buildings, especially tall ones, this di-
lution of pollutants is rendered more difficult. Buildings surrounding
a highway create a canyon effect which cuts down the speed of the sur-
face wind and prevents an updraft of air movement, thus keeping the
5-2
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pollutants from dispersing rapidly. By using buffer zones to keep the
area adjacent to the highway open, this canyon effect is prevented.
(2) The restriction of development along the highway corridor will also
act to separate the polluting automobiles from any receptors that are, or
would be, located in the area immediately adjoining the site of a present
or proposed highway. If, for example, there are no residences or busi-
nesses in areas contiguous to highways, few or no people will be exposed
to the full impact of the pollutive emissions. (3) Buffer zones can act
to reduce the impact of automobile emissions due to the properties of
vegetation in the zones. As noted in more detail below, vegetation holds
moisture and helps maintain a cooler surface temperature than is found
in barren areas. By creating this cool, humid surface, vegetation helps
certain types of pollutants to settle out of the air. An associated
characteristic is that trees increase local turbulence, thereby increasing
2
the dispersion of vehicular emissions.
Proposals for the use of buffer zones to minimize the adverse im-
pact of pollutants upon a receptor require consideration of two properties
of the buffer itself - its size and the type of vegetation in the buffer
zone. In order to estimate the distance needed between a source and
the receptor, one must determine the dispersion characteristics of a
particular pollutant. Although research findings differ concerning the
distance that should be allowed for pollutant dispersion, the state of
the art in regard to optimum buffer size seems to be more advanced than
studies investigating the role of vegetation in reducing pollutant con-
centration.
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DISPERSION AND VEGETATION
Pollutants may be classified as gaseous or aerosols (more commonly
termed particulates). The dispersion characteristics of gases and
aerosols are important in evaluating the use of a particular type of
buffer to minimize the impacts of a specific air pollution situation.
Although there are numerous substances belonging to the general classi-
fication of aerosols and gases, this chapter will discuss general dis-
persion characteristics of aerosols and basic dispersion qualities
of a particular gas, carbon monoxide.
Dispersion Characteristics of Aerosols
Aerosols range in size from approximately .006 to 1,000 microns.3
The transport of aerosols through the atmosphere is a function of time
aloft and weather conditions and is also dependent upon the microclimate
of a particular area. Larger particles settle quickly because of their
high rate of sedimentation; those smaller in size may become electrically
charged and have a great degree of mobility, often resulting in their
4
attachment to other particles. The principal means by which particles
are removed from the atmosphere is by gravitational settling, which pre-
vents the larger particulate matter, such as fly ash and soil, from travel-
ing far from their sources. Smaller matter may be removed from the air
by striking obstacles such as buildings and trees. Precipitation is
effective in removing particles smaller than two micrograms; some matter
as large as ten micrograms may be kept airborne by turbulence for ex-
5
tended periods of time. Wind direction and velocity are therefore
primary factors that must be considered in determining the transport
and dispersion of particulate matter. The actual direction of transport
5-4
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is determined by large scale circulation in the atmosphere as well as by
the local influences of breezes, the surface features of a specific
area, heat sources (such as the higher temperatures observed over urban
6
areas), and air masses of differing densities.
Numerous studies have found that particulate dispersion is directly
related to the distance between source and receptor. It is difficult,
however, to establish a specific distance as a guideline for buffer width,
since dispersion depends upon factors other than distance alone. A
study by A.L. Page, et^ al_ examined lead concentrations in 27 varieties of
vegetation along highways. They found a direct relation between lead
content in the plants and distance from the roadway, although the rela-
tionship was most significant at distances less than 150 meters from
the highway. Lead content was also found to be influenced by prevailing
7
winds.
Peter Rydell and Gretchen Schwarz cite a Russian study which concludes
that "the concentration of pollution decreased by about half over 500
8
meters of planted land." I.A. Singer also notes a 75 percent reduction
9
in dust particle count over a 600 foot wide strip of open space.
Other studies have attempted to estimate the buffer zone size neces-
sary to minimize pollutant impact. Frank Cross determined the size require-
ments for a buffer zone to protect citrus groves from fluoride emitted from
a phosphate plant gypsum pond. Based upon a standard where 75 parts per
million of fluoride in citrus leaves was considered to be evidence of pol-
lution, a one half mile buffer strip was established around the pond to
10
alleviate the fluoride effect. In another case, Cross defined a zone
for suspended particulates emitted from a dolomite processing plant, and
5-5
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concluded that to reduce the adverse impact of settling particles upon
nearby residents, a buffer of 1,500 feet radius around the plant site
11
would be required. A third study by Cross investigated the buffer
width needed to restrict ambient air particulate concentrations from a
hot mix asphalt plant to 100 micrograms per cubic meter. Results in-
dicated that a buffer zone of one mile radius reduced particulate con-
12
centration to the determined level.
General Dispersion Characteristics of Carbon Monoxide: A Case Study
A study by the General Electric Company for the New York City
Department of Air Resources measured traffic-generated air pollutant
concentration and dispersion patterns for five major roadway configura-
13
tions. In attempting to determine the behavior of carbon monoxide,
hydrocarbons and particulates along highways, GE contributed data that
may prove useful in evaluating the type of buffer most effective for
minimizing pollutant impact from a particular highway configuration.
The study monitored six variables: CO, hydrocarbons, particulates, wind
speed, wind azimuth and elevation angles, and the sigmas of wind azimuth
and elevation. Sites were divided into five categories based upon roadway
design: open cut, tunnels, cantilever covered, open and intermittently
covered.
Summarizing the findings regarding CO, GE found that the gas ex-
hibits the expected exponential decay with distance, providing that
the path of the pollutant is not obstructed. Vehicle induced turbulence
also affects the dispersion of CO along a highway. A negative linear
relationship exists between the concentration of CO at the automobile
exhaust level, and traffic speed. Thus, higher a.verage traffic velo-
cities result in lower CO concentrations due to increased vehicle oper-
14
ating efficiency and increased turbulence. While the decay of the
5-6
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concentration with distance from the vehicular source has been sub-
stantiated by measurement, the role of traffic-generated turbulence in
providing a diffusive mechanism for the gas is not clear; quantitative
15
expression of this phenomenon is in the formative stages. In addition
to the dispersion of CO dependent upon distance and vehicular turbulence,
the "canyon effect" resulting from buildings is another influential fac-
tor. The width and height of the buildings have been shown to affect the
wind velocity and pattern within the "canyon." Design characteristics
of buildings and density also influence dispersion of the gas irrespective
16
of wind velocity.
Results of the CO horizontal profiles from the General Electric
study indicate peak values at impermeable walls due to pollutant accumu-
lation at these points. In an open cut roadway, for instance, maximum
concentration occurs at the two walls and a minimum was observed at the
17
center of the highway. The magnitudes of the CO concentration are
18
directly related to traffic volume on each side of the highway. The
horizontal profile at a site with a wall on one side of the road and the
other side open to ventilation indicates maximum concentration at the
19
wall. At a site open to ventilation on both sides, maximum concen-
tration occurs at the middle of the road and decays in both directions
20
across the roadway.
Measurement of the relationship between indoor and outdoor con-
centrations of CO at five sites revealed that both concentrations corre-
lated with each other. The outdoor levels tended to be higher, but the
difference did not usually exceed four parts per million. In the case
of air-tiqht structures, weekend indoor levels were higher than outdoor
5-7
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21
levels due to increased cooking and other household activities.
The Utility of Vegetation as a Pollutant Absorption Device
The literature concerning the effectiveness of vegetation in reducing
pollutant levels is sparse; results are inconclusive and in some respects
conflicting. Generalizations about the usefulness of vegetation in ab-
sorbing pollutants are difficult to formulate because of the complexity
of interrelated variables, such as type of vegetation and density required,
pollutant type and concentration, and seasonal variations. Various studies
indicate that trees remove certain aerosol and gaseous pollutants from
the atmosphere and that the leaves are probably the most effective means
of removal. Coniferous species would therefore seem to have the most im-
pact in contributing to an improvement in air quality. Kohout and Materna
experimented with the uptake of sulfur dioxide by plants and discovered
that of the six species used, the sulfur dioxide penetrated the leaf
tissue in only two species. These results suggest that gaseous pollutants
22
can be removed by plants without penetrating the leaf. Particulate
matter seems to have minimal harmful effect upon vegetation, although it
23
has been shown that several gaseous pollutants can injure plants; thus,
the amount of a substance that conifers are capable of removing, without
sustaining injury, in relation to the pollutant concentration, is still
uncertain. It is not clear, for instance, whether the absorption of
gaseous pollutants by vegetation "appreciably lessens" pollutant concen-
tration prior to the point when the plant is harmed, .causing
24
24
a reduced carac-ity to absorb aHHitioml pollutants. Leaves exposed
to low levels of SO are capable of transforming the pollutant into sul-
2
fate, a substance less injurious to the organism. Mien exposed to high
-------
levels of the pollutant, however, the leaves may be damaged before being
25
able to transform SO to sulfate. In general, research findings indi-
cate that forest belts are ineffective in significantly reducing SCU con-
centrations, although certain species of trees demonstrate an ability to
reduce concentrations of dust particles as well as solid and gaseous
26
radioactive substances.
Studies of the ability of plants to absorb ozone and thus reduce
smog levels have concluded that vegetation can "reduce appreciably the
27
amount of ozone in polluted air." The assimilation of ozone by foliage
can "significantly" aid in cleansing the polluted air to about the same
extent that photosynthesis decreases the carbon dioxide concentration in
28
the air. George Hanson and Linda Thorne concluded that petunias and
bougainvillea are respectively "efficient" and "intermediate" ozone ab-
sorbers. They discovered, however, that in order for the leaf stomates
to remain open and trap the pollutant, concentrations must be kept at a
reduced level; therefore, the effectiveness of these plants in reducing
29
smog levels depends upon the maintenance of a certain ozone level.
MICROCLIMATE
When evaluating the effectiveness of vegetated buffer zones in im-
proving air quality, one must consider the extent to which these zones
affect area microclimatology. Trees influence three basic elements of
39
the microclimate: temperature, humidity, and wind.
Vegetated areas usually have a narrower temperature range than open
areas. The lower summer temperature within a forest is due primarily
to the amount of radiation that is transformed into energy and used for
evaporation rather than for transformation into sensible heat (heat
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added to a body when its temperature is changed). A study by F.W. Went
concluded that the amount of radiation reflected by a forest and an ur-
ban area may be similar, but the forest may use as much as 60 to 70 per-
cent of the incoming radiation for evaporation heat rather than for trans-
formation into sensible heat. The reduced energy available for conver-
31
sion into sensible heat results in a lower temperature. The temperature
over vegetated surfaces on sunny summer days may be 10 to 14 degrees
cooler than over barren soil. There can be 1500 BTU per square feet less
heat per season over grassy surfaces; this cooler, more humid air reduces
32
dust formation.
Vegetated areas tend to be more humid than barren spaces because of
transpiration of foliage. Absolute humidities are normally highest near
the ground level of a tree cluster, and the humidity decreases with al-
titude. Once again, the greater humidity of vegetcited areas lowers par-
33
ticulate dust formation.
Numerous studies indicate that trees influence wind velocities of
a specific area; the use of trees as windbreaks is a common form of
microclimatic alteration. Wind velocities are reduced within a forest
due to the retarding of wind speed by friction, although this effect does
not extend great distances beyond the forest or shelter belt. Studies
have demonstrated that the reduction of wind speed is proportional to
tree height: a 10 percent reduction in speed may result over a distance
three times the tree height to the windward and twenty times to the lee-
34
ward. However, dense plantings tend to create turbulence and the re-
35
tarding effect may be negated downwind.
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WATER
Forested areas have an effect upon the quantity and quality of the
water and upon flooding. A forest reduces the water yield of an area by
causing a considerable portion of the precipitation to be evaporated or
transpired. Water quality tends to be better in regions where forests are
present. The vegetation cover conditions the structure of the soil so
that,when precipitation occurs, it penetrates the soil surface without
causing great disturbance to the surface. Soils without vegetation may
not have suitable structure and stability; precipitation may flow over-
land and carry quantities of materials which results in low quality water.
A study of the Wissahickon Valley watershed near Philadelphia revealed
that the average depth of water infiltrated per minute was 0.58 inches
for wooded areas, 0.28 inches for fields, and 0.10 inches for suburban
36
lawns. Other benefits related to underground runoff of forested areas
include more uniform streamflow, less need for artificial storage, less
erosion in steep areas, removal of salts from the soil, and enhanced deg-
37
radation of rock into soil components. H.E. Heggestad points out that
soil, apart from vegetation, is important in removing pollutants from the
atmosphere, especially for gaseous substances such as carbon monoxide and
ethylene which are not absorbed by green plants. Fungal microflora in
the soil are primary absorbers of carbon monoxide; it has been estimated
that the total soil area of the continental United States is capable of
removing more than twice the annual amount of carbon monoxide in the world
produced by man. The soil is also a sink for hydrocarbons, a major
38
automotive pollutant. Forests may also reduce the damage caused by
minor floods but due to saturation have little impact upon major flooding.
5-11
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The effects of trees upon water are not constant; variations occur
with the character of the soil, type of weather, and nature of the forest.
For instance, the water yield from a deciduous forest was found to be
greater than from a forest of jack pine by 2.7 inches, and 3.0 inches
39
for a mixture of pine and oak.
NOISE
The use of a buffer zone to minimize the impact of noise upon a
receptor involves two primary factors: distance from noise source to
receptor, and absorption of noise by vegetation. Although there are
various scales for measuring sound, for the purposes of this discussion
noise quality will be represented by frequency, or cycles per second
(cps), and noise intensity will be indicated by decibels (db). Reference
will be made to the "A" scale of measuring intensity. This scale empha-
sizes frequency components of sound in the range of 800 to 8000 cps and
corresponds to the perception of sound by the human ear, which is capable
of detecting sound in the frequency range from approximately 20 to 20,000
cps. Generally, intensity greater than 120 dbA may cause pain,and phys-
ical damage may result at 160 dbA, especially with prolonged exposure.
Sound diminishes with distance; in an unobstructed path, the sound level
is reduced by six decibels as distance is doubled. Noise is defined as
unwanted sound, whether it is perceived as a nuisance or causes physical
damage to a receptor.
Noise standards developed by the Federal Highway Administration
(FHWA) have been incorporated into the Federal-Aid Highway Act of 1970.
The standards are used by State highway agencies and FHWA offices in
planning and designing highways, receiving Federal funds. The standards
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contain design noise levels that are applied to developed lands, various
exterior land uses, and certain interior uses. The levels are based upon
subjective annoyance criteria and interference with speech communication.
A 70 dbA level has been established for school and residential exteriors,
and this standard may not be exceeded more than 10 percent of the time
during the hour of the day exhibiting the greatest noise intensity.
The standards require that "noise sensitive" land uses in the vicinity
of highway projects be identified; if anticipated dbA levels exceed the
standard, the guidelines stipulate that "corrective measures are to be
taken to the extent feasible." Highway agencies are required to make
available to local officials projected noise levels for highway improvements
and any other information that will aid local governments to minimize
40
future traffic generated noise.
Vegetation absorbs sound. W.H. Smith notes a study by T.F.W. Emble-
ton which reveals that coniferous trees result in greater noise attenuation
41
than deciduous species. Many investigators have observed greater vege-
tative sound attenuation as frequency increases, but Embleton suggests
that attenuation is independent of frequency within the 200 to 2000 cps
band for all tree types (providing that deciduous varieties are in full
42
leaf). Gerhard Reethof concluded that a growth of tall trees (40 to 50
feet) planted at a depth of 100 feet can reduce noise by 5 to 8 db.
Reethof's data support Embleton's conclusion that major differences in
43
attenuation do not exist among species. Other studies point out the
difficulty in making definitive statements concerning the value of trees
in reducing noise. For instance, assuming that noise reduction in the
300 to 800 cps range is desirable and that a 25 dbA reduction is re-
quired, based upon Embleton's data a dense coniferous growth approximately
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400 feet wide would be needed; data compiled by P.M. Wiener and D.N. Keast
indicate that a 1,900 foot-wide belt would be necessary for the same re-
44
duction.
Belts of trees affect sound transmission depending upon height,
width and density rather than upon differences in leaf size and shape
and branching characteristics. Taller trees present a greater surface
to block a sound wave, resulting in more opportunity for absorption and
diffusion. The greater depth of a belt offers an increased number of
absorbing structures to intercept the sound wave; density provides more
elements per unit volume, resulting in greater absorption and more com-
45
plete diffusion. In a study of the effect of vegetation in reducing
traffic noise, F.J. Neister notes that a "relatively dense woods" would
reduce traffic noise between 0.16 and 0.18 db per meter and suggests that
a residential development would have "low" traffic noise if it were sepa-
46
rated from the highway by 200 meters. Embleton and G.J. Thiessen esti-
mate that 1,000 feet of "dense forest" are needed to obtain a 15 db re-
47
duction of the most significant band of diesel freight train noise.
David Cook and David Van Haverbeke cite a study by Peter Durk which
indicates that the sound absorption of trees increases with the frequency
48
of the sound wave. The Durk study also concludes that a 50 meter
wide park can result in a 20 to 30 db reduction of noise below its source
level.
Cook and Van Haverbeke maintain that the value of trees in reducing
noise level is a function of proper place, density, tree height and belt
width for each specific application. Belt widths from 75 to 100 feet are
desirable, as is the use of evergreens for the tree type. A 20 to 25 foot-
wide belt of shrubs and trees that are 15 to 30 feet high might be adequate
5-14
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for noise screening in a residential area, but this could have negligible
impact in an area where trucks and buses are the main noise sources.
Thus, although the vegetation configuration necessary to reduce noise
varies among locations, some general guidelines may be proposed. For in-
stance, a surface condition consisting of a tree-shrub-grass combination
usually results in an 8 to 12 db greater reduction over distances of 225
feet or more than when compared to pavement surface of the same distances.
Cook and Van Haverbeke suggest tree placement closer to the noise source
49
rather than to the receiver.
Cook and Van Haverbeke include two specific recommendations whereby
noise reduction would be in the range of 5 to 15 db.50 To achieve high-
speed automobile and truck noise reduction, they recommend planting 65
to 100 foot wide belts of trees and shrubs, with the edge of the belt
within 50 to 80 feet of the center of the nearest lane of traffic. Trees
in the center row should be 45 feet or more. In urban areas, where moder-
ate speed traffic results in tire-road interaction noise, plant 20-50
foot wide belts of trees and shrubs with the edge of the belt from 20 to
50 feet from the center of the nearest traffic lane. Use shrubs 6 to 8
feet tall next to the traffic lane, and backup rows of trees 15 to 30
51
feet in height.
Following are the results of two control situations from the Cook
and Van Haverbeke study:
1. 10 row belt, 10 feet between rows; in-row spacing
of 8 feet; width 120 feet; 58 feet height: 130 feet
from the tree belt, there was a 6 db reduction in
truck noise beyond a test situation where there were
no trees.52
2. 4 row belt; 12 feet between rows; in-row spacing
8 feet; width 45 feet; 30 feet height: 155 feet
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from the tree belt, there was an approxinmte 7 db
attenuation from truck noise beyond a test: situa-
tion where there were no trees.53
GENERAL OBSERVATIONS ON THE UTILITY OF BUFFERS
This brief review has done little to advance specific proposals for
the use of buffer zones as means of improving environmental quality.
As was mentioned earlier, it is difficult to make quantitative evaluations
and definitive statements due to lack of data and inconsistent conclusions
among researchers. Nevertheless, certain general observations may be
ventured. The available evidence indicates the usefulness of vegetated
buffer zones to reduce the impacts of air and noise pollution, although
the extent of this reduction depends upon numerous factors which were
mentioned. The unique nature of various geographic locations and pollu-
tion problems increases the difficulty of recommending general solutions
that may be applied to all situations. Quantitative analyses regarding
the use of vegetated buffers in minimizing air pollution impacts seem
less precise than studies concerned with noise. Moreover, the transmission
of noise seems to be somewhat less affected by variables, such as meteoro-
logical conditions, that influence the dispersion of air pollutants.
The use of a buffer zone may be related to three air quality objec-
tives: (1) to reduce human exposure from a point or line pollution source;
(2) to reduce average pollutant concentrations; and (3) to reduce total
emissions in the atmosphere. Two characteristics of the buffer contri-
bute toward the accomplishment of these objectives. Distance between
source and receptor allows for pollutant difjpersion, thereby minimizing
human exposure and reducing concentration. The use of vegetation in
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the buffer zone as a filtering device can, to a limited and as yet unde-
termined extent, improve air quality by lowering local concentrations.
Vegetation may also indirectly influence air quality by altering the mic-
roclimate of an area; however, the most significant use of a buffer zone
directly related to air pollution would seem to be in minimizing adverse
impacts of pollutants upon a specific receptor, rather than influencing
ambient air quality. Difficulties encountered in attempting to formulate
recommendations for the use of a buffer zone include variations in
meterological conditions, different types of pollutants, determining the
effectiveness of specific vegetation as filters, and lack of quantitative
data concerning the level of pollutant reduction achieved by a given
amount of space and vegetation.
Mention should also be made of the economic feasibility of using
buffer zones to improve environmental quality. Air and noise pollution
are most severe in densely populated urban areas, where land values are
usually high. In many instances the levels of pollution that could be
reduced by a buffer probably would not be justified by the cost of land
acquisition necessary to achieve these reductions. The use of the buffer
zone in future planning and design criteria is more realistic than advo-
cating its employment in areas already developed.
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BUFFER ZONES AND THE HIGHWAY
Under design standards applicable to most highway construction,
setbacks from the right-of-way are ordinarily required. For the setback
or buffer to act as an effective absorbent of pollution emissions, how-
ever, this highway buffer will in most cases have to be widened beyond
that which is usually required presently as a conventional part of
highway design. Securing this expanded buffer area will therefore re-
quire the adaptation of present legal tools which are utilized to buffer
highways from adjacent land developments. Either this additional buffer
area will have to be acquired and placed in public use, or it will have
to be secured against development through use of the police power. In
the latter case, the extra burden on landowners which the widened highway
buffer imposes will not be compensated.
Either approach imposes costs and burdens on the public land ac-
quisition and regulatory machinery. In the first instance, the direct
costs of acquisition must be borne either by the highway agency or by
some other governmental agency that assumes responsibility for the
highway corridor program. These costs are substantial, and since they
must be borne by the entire taxpaying public while the benefits of the
corridor buffer program are largely enjoyed by property owners who are
adjacent to the highway, this cost burden may well be resisted.
On the other hand, utilization of the regulatory system to achieve
appropriate highway buffers concentrates the entire cost of the program
on adjacent property owners, to the extent that these owners are uncom-
pensated for the loss of use of all or a portion of their land. Although
much of the benefit from the uncompensated highway setback may flow
to these same property owners, there is no direct correlation of benefit
5-18
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and burden, so that courts may resist giving sanction to over-extensive
highway setbacks.
In addition to the high costs of acquisition and the difficulties of
regulation, an expanded highway setback program imposes other costs on
the metropolitan development structure. Since the effect of the expanded
setback program is to remove considerable amounts of potentially develop-
able land from development, other land that might not have been used for
development elsewhere will have to be used instead. Overall densities may
to some extent be reduced, and the spread of urban development may be ex-
tended. These effects may be desirable or undesirable, either from an
urban planning or air pollution control viewpoint, but they need to be
carefully considered as part of an expanded highway buffer program.
These considerations also suggest that alternative control methods
may also be utilized to reduce the level of pollution emissions along
highway corridors. For example, setbacks may remain the same, but buil-
dings along the freeway may be built so as to protect their occupants
from pollution effects. To the extent that this approach requires win-
dowless structures and a greater use of interior air conditioning, this
cost may be accepted as part of the cost of highway construction in lieu
of the additional costs of expanded setback acquisition. Some highway
departments have already taken steps in this direction by providing funds
for the sound conditioning of buildings adjacent to expressways.
These observations suggest that caution is warranted in the utili-
zation of highway buffer programs as an attempt to reduce the impact of
air pollution along highway networks. Moreover, improvements in the
technology of automobile engines, changes in the pattern of highway
5-19
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systems in urban areas, and increasing reliance on urban mass transit
may reduce the need for protective buffer strips. Nevertheless, although
perhaps of limited use as a means for alleviating the impacts of air
pollution on a comprehensive regional scale, the highway buffer strip
still deserves consideration as a method of controlling the impact of
air pollution in areas of the region where pollution levels are critically
high and where a program of this kind can have significant beneficial
effects.
Certain legal issues related to the use of buffer zones remain to
be analyzed. The first issue deals with the authority of the state or
political subdivision to utilize the power of eminent domain to acquire
protective buffers in order to neutralize the effects of air pollution
along highway corridors. The second is the use of the police power by
the state or its political subdivision to accomplish the same purpose.
USE OF THE EMINENT DOMAIN POWER TO ACQUIRE PROTECTIVE BUFFERS
The legal problems posed by the use of the eminent domain power to
acquire protective buffer strips resolve themselves into two issues:
(1) Can a state or its political subdivisions acquire, through
exercise of its eminent domain power, land alongside a highway in order
to neutralize air pollution in this highway area?
(2) Can a state condemn this contiguous land with the purpose of
re-selling it in order to minimize the cost of the land acquisition if,
upon re-sale, appropriate restrictions are put upon the use of the property
so as to insure that the original purpose of the condemnation (i.e. neutra-
lization of air pollution) is carried out? Alternatively, may the state
condemn easements in this contiguous land that require it to be kept open
5-20
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and properly planted and maintained in order that the effects of air
pollution may be neutralized?
Extensive research has failed to discover any case to date in which
the eminent domain power was used for pollution abatement purposes
along highways. Thus, this analysis will focus on analogous cases and
statutory law and will attempt to extract principles from these sources
that will allow their extended application to the automobile emission
problem. One factor that may tend to mitigate the persuasiveness of the
following analysis must be kept in mind, however. Even though the power
of eminent domain has been universally recognized as an inherent power
of a sovereign entity, and even though courts are liberally construing the
concept of public use, nonetheless the eminent domain power conflicts
with the landowner's constitutional right to own and enjoy property with-
54
out governmental interference. This limitation upon the owner's con-
stitutional rights could make the courts hesitant to extend the eminent
domain power to encompass new areas. However, courts have given no in-
dication of such unwillingness to extend the doctrine, and the following
analysis will show that the seeds of the extension of the eminent domain
power to include its exercise to abate air pollution have already been
planted.
Constitutionality of Use of Excess Condemnation
There are various theories under which the use of the eminent domain
power to acquire highway corridor land may be approached. The first of
these is under the theory of "excess condemnation." Under this doc-
trine the state (or condemning agency) may condemn more land than is
needed for the improvement provided the excess land is to be used to pro-
tect the improvement, to improve its utility, to extend its usefulness,
5-21
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or to secure the desirable development of its surroundings. Thus, in
condemning land for a highway, it may be possible, under this theory,
to also condemn the adjacent land to be used for buffer zones.
The power to exercise this type of protective excess condemnation
has been recognized constitutionally, statutorily, and judicially. The
following New Jersey constitutional provision is representative of
56
similar provisions and statutes of other states:
"Any agency. . . of the state which may be empowered
to take or acquire private property for any public highway,
may be authorized by law to take abutting property to preserve
57
and protect the public highway."
Protective excess condemnation also has much case law support.
58
In City of Tacoma v. Welcker, plaintiff was permitted to condemn the
land surrounding the Green River, its principal source of water, to act
as a buffer in order to protect this water supply from future pollution.
59
In People v. Lagiss, a California court allowed the state highway
commission to condemn more land than was actually needed for the
highway to use for drainage purposes and to improve visibility along the
60
highway. In Cully v. Pearl River Industrial Commission, a Mississippi
court upheld defendant's power to condemn any land within a quarter mile
perimeter from its reservoir in order to preserve and protect said
reservoir. Finally, in Illinois State Toll Highway Commission v. Eden
61
Cemetery Assn., plaintiff was permitted to condemn an easement
under defendant's cemetery property for sewer and water facilities to
service a privately owned restaurant and gas station located alongside
the highway as these establishments were considered an integral part
of the highway.
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While excess condemnation to protect the improvement itself is per-
mitted, our concern is whether the concept can be extended to protect
adjacent lands from the adverse effects of a public improvement. The
Lagiss case could imply that such an extension is not possible. In Lagiss
the court stated that if the real purpose for the taking of adjacent lands
was for a public use unrelated to the highway project, the excess taking
would be in bad faith, and an abuse of discretion, and would be disallowed.
However, various counter-arguments may be available to rebut this state-
ment. First, this statement was not necessary to the decision, as the
Lagiss court upheld the excess taking in that case. Second, it may be
argued that protecting adjacent areas from pollution emissions is related
to the highway project. This argument has some case law support. In
62
West Inc. v. U.S., defendant condemned land for a flood control project
and also condemned additional land around the project site for use as a
fish and wildlife preserve. In upholding this excess taking the court
said:
"Provided that the [excess] land can be reasonably related
to a public purpose, the United States in eminent domain
proceedings is not limited to taking in fee only the amount
of property which will be physically occupied by the public
or actually submerged in a flood control operation. If the
operation has some concomitant deleterious effects on the
fish and the wildlife in the areas involved, the scope of
the condemnation can include remedies to remove such
deleterious effects."
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63
Brown v. U.S. also seems in point. In Brown plaintiff's land
was condemned in order to provide a new site to replace that part of a
town that was to be flooded by defendant's reservoir. In upholding the
condemnation the Supreme Court said:
"The acquisition of the town site was so closely connected with
the acquisition of the land to be flooded, and so necessary to
the carrying out of the project, that the public use of the
reservoir covered the taking of the town site."
64
Similarly, in a later case, Culgar v. Power Authority of New York,
the New York Court of Appeals upheld defendant's power to condemn
plaintiff's property in order to provide sites for the relocation of
residences that were to be destroyed by a flooding which provided
power to run defendant's power plant.
It may also be argued that whether the use of the excess land is
"related" to the improvement is a moot issue so long as the excess
property is put to any public use. There is support for this assertion.
65
In U.S. v. 91.69 Acres of Land, plaintiff condemned excess land
around the dam and reservoir of a flood control project for recreational
purposes. In upholding the taking the Fourth Circuit stated:
"Ordinarily the Government may take not only the land
that will be flooded but such additional land as in the
discretion of the condemning authority may be necessary
or desirable to protect the lake or to permit incidental
public use." (emphasis added)
66
Similarly in U.S. v. Agee, upholding the government's power to
condemn excess land in connection with the building of a dam, the
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Sixth Circuit said:
"It is well established that the federal government in
eminent domain proceedings is not limited to precisely
the amount of property which will be physically occupied
by the public ... In the construction of a dam, the
government is not restricted to taking the land which
will actually be submerged if the additional land can be
reasonable related to a public purpose." (emphasis added)
(^
Finally, in Winter v. Mackie, defendant condemned the entire interest
in plaintiff's land for a highway. Later gas and oil were discovered
under this area. Plaintiff claimed that defendant should not be entitled
to the gas and oil rights but rather should be restricted to the surface
rights to the property as only that estate was to be used for the highway.
The Michigan court, upholding the fee simple acquisition, stated:
"Highway officers are authorized to condemn land in
excess of the amount needed for the right of way proper
if the public interest will best be served by such taking,
and the discretion so vested will not be interfered with
in the absence of a clear abuse of discretion."
(emphasis added)
One is therefore led to the conclusion that there appears to be no
reason why, on the basis of the above principles, excess land along
the sides of an existing or proposed highway may not be taken through
the eminent domain power to neutralize automobile emissions. Either
the abatement of the adverse' environmental impact of the highway upon
the immediate area is sufficiently related to the operation of the high-
way itself so as to justify the excess condemnation, or the restriction
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of air pollution is itself a sufficient public use to justify the exercise
of the eminent domain power in its absolute sense, without regard to
the property's relation to the highway project per se. This latter point
will be more fully explored below.
Statutory Authority for Excess Condemnation
Existing statutes also seem to provide the necessary framework for
the extension of the excess condemnation doctrine. A Washington statute
reads as follows:
"The state highway commission is authorized to
acquire . . . title to any interest in real property
adjacent to state highways for the preservation of
natural beauty . . . or to provide a visual or
sound buffer between the highway and adjacent
68
properties."
The visual or sound buffer authorized by this statute would also be
helpful in the control of air pollution. A California statute also seems
encouraging:
"The [highway] department may condemn real property or any
interest herein . . . along any state highway . . . constructed
a to be constructed by the department, and may after the laying
out and construction of such improvement, convey out any such
property . . . thus acquired and not necessary for the improvement,
with reservations concerning the future use and occupations of
such property so as to protect such public work and its environs,
and to preserve the view, appearance, light, air and usefulness
69
of such public work." (emphasis supplied)
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The key wording is that alluding to the protection of the environs of
the improvement. While this statute has never been judicially inter-
preted so as to encompass condemnation for air pollution control purposes ,
it could be forcefully argued that the language of the statute does
authorize such condemnation.
Indirect Control: Taking Property for Beautification Purposes
Buffer zones could also be secured through the eminent domain power
in a slightly round-about manner. Statutes in a number of states which
allow the condemnation of property adjacent to highways in order to preserve
and enhance the beauty of the highway and its surrounding region. The
Washington statute that provided for the sound buffer also allows condem-
nation to enhance the aesthetic appeal of the highway. A California
statute provides as follows:
"The [highway] department may acquire . . . any real property
which it considers necessary for highway purposes. [Real
property for such purposes may be condemned for any of the
following uses]. (F) For the culture and support of trees which
benefit any state highway by aiding ... in the maintenance of
70
the attractiveness of the scenic beauties of such highways."
71
In a recent New Jersey case, West Outdoor Advertising Co. v. Goldberg ,
defendant transportation department condemned plaintiff's land located
adjacent to a highway, pursuant to a New Jersey statute similar to
72
those authorizing a taking for highway beautification purposes. In
upholding the constitutionality of the statute and the validity of the
taking, the New Jersey court stated:
"We have no hesitancy in stating that the restoration, preservation,
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and enhancement of scenic beauty adjacent to public highways is
a public use for the public welfare, filling a special need of our
time. Therefore, the power to acquire land for that purpose is
beyond judicial interference."
73
A similar result was reached in a Wisconsin case, Kamrowski v. State.
In this case the state highway commission condemned a "scenic ease-
ment" in plaintiff's property to a depth of 350 feet from the highway.
74
Defendant's action was authorized by a Wisconsin statute allowing
the highway commission to acquire, by eminent domain, negative easements
in lands adjoining the state highways preventing the landowner from
dumping any garbage or erecting any signs or billboards. The statute
also permitted the acquisition of a negative easement forcing the owner,
if he used or leased the land for residential purposes, to maintain a
frontage of not less than 300 feet from the highway for each residence.
The state justified the taking of these easements as a necessary means of
preserving and protecting, for scenic purposes, the natural beauty of the
areas adjoining the highway. The Wisconsin court upheld the constitu-
tionality of the statute (and hence the taking) by ruling that the pub-
lic's enjoyment of the scenic beauty of a highway is a public use for
which land, or an easement in land, can be validly taken.
Thus it seems clear that a condemning authority can acquire the
needed buffers along the highway simply by condemning the land for
highway beautification purposes. Although the justification would only
partially explain the true purpose for the taking, it does not seem that
such condemnation would be in bad faith or an abuse of discretion. By
condemning this corridor area for use as a buffer, the condemning
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authority is indeed enhancing the beauty of this region. Fields of trees
and shrubbery, especially if they are well maintained, are most aesthe-
tically pleasing. In fact, some of the beautification statutes, such as
the California statute, expressly provide for the maintenance of vegeta-
tion as a means of preserving the beauty of the highway right of way.
The fact that vegetation serves the important concomitant function of
neutralizing vehicular emissions by no means detracts from its beautifi-
cation function.
Direct Taking to Control Air Pollution as a Public Use
Notwithstanding the above analysis, it may be possible to examine
these eminent domain issues in a different perspective. Instead of
dealing with the problem as one of "excess" condemnation, a taking of
highway corridor land may be viewed merely as an exercise of the eminent
domain power in its purest sense. The eminent domain power is a power
inherent in any sovereign entity, such as a state, and the state can
delegate this power to any of its agencies, e.g., a highway commission.
The only limitations on the exercise of the eminent domain power are:
(A) the land taken must be put to a public use, and (B) the condemning
authority must justly compensate the owner for the taking of his property.
The condemnation problem presented here may be visualized as follows:
the state highway commission, acting pursuant to power delegated to it
by the state, condemns X amount of land for a highway. This taking is
easily justified as a taking for a public use. As the Supreme Court said
75
in Rindge Co. v. Los Angeles County, "A taking for a highway is
universally recognized as a public use." The highway commission also
condemns Y amount of land on each side of the proposed highway. This
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taking is rationalized as a taking for the public use of abating the air
pollution in the highway corridor caused by automobile emissions. Can
this excess taking be legally justified? This question has two components
which must be separately examined. (1) Is a taking to abate air pollution
in general a taking for a public use? (2) Is a talking to protect potential
receptors located in the highway area a taking for a public or for a private
use?
The solution to the first question is relatively simple. Although
it has never been held that land may be constitutionally taken in order
to abate air pollution, the necessary connection can be made by viewing
Ceases _in which analogous takings have been upheld. In City of Tacoma v.
Welcker the Washington court upheld a taking of land to protect the town's
water supply from pollution. In so holding the court stated that since
it is the function of a governmental body to insure that the town's water
supply is pollution free, an exercise of the eminent domain power to
accomplish this end is justifiable as being for a public use. The holding
and reasoning of the Welcker case should apply with equal force to a
taking to protect the town's air quality from pollution.
As pollution of the air breathed by the public is a menace to the
public's health, safety, and welfare, a taking of property to eliminate
this menace is also supported by ample case law precedent. In New York
76
City Housing Authority v. Muller, the court upheld plaintiff's taking
of defendant's property for the purpose of redeveloping slum ridden areas
and providing decent, sanitary housing for low income families. The
court justified the taking as one to promote the public health, safety,
and welfare by eliminating unsanitary housing and rehabilitating unsafe
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neighborhoods. In so ruling the court used the following language,
which could equally apply to the situation discussed in this chapter:
"To take for the maintenance and promotion of public health
is a public purpose . . . The fundamental purpose of government
is to protect the health, safety, and welfare of the public. Its
ammunition to accomplish these ends [includes] the power of eminent
domain. Whenever there arises in the state a condition of affairs
holding a substantial menace to the public health, safety, or welfare,
it becomes the duty of the government to apply whatever power is nec-
essary and appropriate to check it."
77
In a Supreme Court case, Berman v. Parker the validity of a taking
to promote public health, safety, and welfare received the highest
sanction possible. The facts in Berman were similar to those in Muller;
private property was taken for purposes of redeveloping blighted areas.
The Court upheld the taking stating in conclusive language that the
improvement of public health is a conspicuous example of the tradi-
tional application of the eminent domain power.
Upon viewing some of the cases in which a taking has been upheld
as being for a public purpose, it is clear that a taking to abate air
78
pollution should also be sanctioned. In U.S. v. 1972 Acres of Land,
the court held a taking of land for use as a wildlife preserve is a
79
proper taking for public purposes. In County of Los Angeles v. Anthony,
a California court held that plaintiff's taking of defendant's property
for eventual use as a television and movie museum was a valid taking for
80
a public purpose. In Schank v. City and County of Honolulu, the court
held it constitutional for a municipal government to exercise the eminent
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domain power to acquire private property for use as off-street parking
facilities. If the takings in these cases were valid as being for public
uses, how much the more justified would be a taking to neutralize the harm-
ful effects of air pollution.
The second issue presents a thornier problem, however. If the
condemning authority tries to exercise its eminent power to acquire the
corridor area, the landowner could contest the taking on the grounds
that the property taken would not be put to a public use. He could argue
that, since the land is being taken only to protect those people in the
immediate highway area from the harmful vehicular emissions, the entire
public will not be able to "use" the land taken, and therefore the pro-
posed use of the property is private. As one of the underpinnings of the
exercise of the eminent domain power is lacking, he argues, his land
may not be taken in this situation.
Each state has its own definition of what is and what is not a public
use and of how far a use must extend before it can be considered public.
Any attempt to synthesize these rules would be fruitless. It suffices to
say that there is ample support for the proposition that the use of the
land taken does not have to be shared by the entire public to be con-
sidered a public use. For example, in County of Los Angeles v. Anthony
"There have been two different interpretations of public use
in this country, one the broader meaning of public utility or
advantage, the other a narrower one of use or right of use by
the public. In California the courts have followed the broader
definition of public use. ..."
In Berman v. Parker the Supreme Court sustained a taking of land to
redevelop slum areas, even though the new housing to be built in the
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condemned area would be occupied exclusively by low income families
and would not be open to the public at large. Similarly in New York
City Housing Authority v. Muller, the New York court in reaching an
identical decision stated:
"A use is not private just because the taking is to provide
apartments to be rented to low income persons. Use of a
proposed structure, facility, or service by everybody and
anybody is one of the abandoned universal tests of public
use."
81
In Sublett v. City of Tulsa, the Oklahoma court held that the develop-
ment and improvement of harbors and ports is a public use for which
property may be condemned, notwithstanding the fact that the harbor
or port is not available for indiscriminate use by the public. In
reaching this decision,the court ruled that a public use did not have
to be a use by the entire public, but instead may be a use for the benefit
of a restricted locality if such use is common to or available to all
members of such locality on the same terms.
There is a series of cases in which courts have upheld an exercise
of the eminent domain power in order to provide access roads from properties
rendered landlocked by the construction of a highway to the highway itself.
These takings were sustained as being for a public use, even though the
immediate benefit of the roads built on the lands taken inured only to those
few individuals for whom they provided access. In Arata v. Monsanto
82
Chemical Co. a Missouri court in sustaining such a taking said:
"In order to constitute a public use it is not necessary that
the whole community or any large part of it should actually
use or be benefited by a contemplated improvement. Benefit
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to any considerable number is sufficient. Nor does the fact
that the advantage of a public improvement also inures to a
particular individual or group of individuals deprive it of its
public character."
qo
In State Highway Commission v. Bush, a New Jersey court sustained
a similar taking in the following terms:
"A use is not denominated public or private simply by relying
on the number of people it serves. It has been stated that a
use does not fall to be public upon the ground that the
immediate enjoyment of it is limited to a small group or
even to a single person."
84 85
Similar decisions have been reached in Illinois and Ohio.
On the basis of the above cases and principles, it seems clear that
the taking of land to protect an area adjacent to a highway from air
pollution should be considered a public use. The protection would not
be provided to individuals as individuals, but rather would be provided
to all residents of a specific locality. Everyone located, or to be
located, within the protected area would be equally entitled to share
in the clean air on the same terms as all others located within this
area. Hence,the character of the use of the adjacent property appears-to
be public and its acquisition by the eminent domain power therefore
permitted.
Since the issue of abating air pollution is most pressing and imme-
diate, it seems unlikely that a court will not expand its conception of
public use so as to include pollution abatement in the face of current
public demand for stricter environmental controls. The concept of public
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86
use is not static. In Katz v. Brandon, the Connecticut court in upholding
a taking of land for a redevelopment project stated:
"A public use defines absolute definition for it changes with
varying conditions of society, new appliances in the sciences,
changing conceptions of the scope and functions of government,
and other differing circumstances brought about by an increase
in population and new modes of communication and transportation."
The concept of public use advanced it seems would easily fit within
the confines of the above statement. In addition, it seems that public
policy would support all the ideas postulated in the above discussion.
Finally, if the state by statute, or the condemning authority by
resolution, declared the taking of land adjacent to a highway for pollu-
tion abatement purposes as being for a public use, the taking would have
such a heavy presumption of validity that any doubts as to its public na-
ture would be dispelled. It has long been held that a legislative deter-
mination as to the necessity for taking a particular parcel is presumptively
87
binding on the courts. On the other hand, the issue of whether the
use to which the property taken is to be put is indeed public is potentially
justifiable in every case, legislative determinations notwithstanding.
However, many courts, while giving lip service to this principle, attach
a heavy presumption of validity to a legislative declaration of public use.
Thus, in New York City Housing Authority v. Muller the court said:
"Legislative determinations of public use are not conclusive
on the courts, but they are entitled to at least great respect
since they relate to public conditions concerning which the
legislature both by necessity and duty must have known."
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Also in Berman v. Parker, the United States Supreme Court gave near judicial
immunity to a legislative declaration of public use in the following
language:
"Subject to specific constitutional limitations, when the
legislature has spoken the public interest has been declared
in terms well nigh conclusive. In such cases the legislature
and not the judiciary is the main guardian of the public needs
to be served by social legislation. . . . This principle admits
no exception merely because the power of eminent: domain is in-
volved. The role of the judiciary in determing whether that
power is being exercised for a public purpose is an extremely
narrow one."
Acquisition of Partial Interest
Instead of acquiring full title to corridor land, the condemning
authority could acquire a negative easement in this land to restrict
development in order to facilitate pollution abatement. The precedent for
this type of acquisition was established in Kamrowski v. State. However,
the cost of acquiring this easement could be nearly as great as the cost
of acquiring title in fee, as the easement would disallow all development
in the buffer area.
An alternative solution would be for the state to acquire the needed
land and then sell it subject to appropriate restrictions to insure its
function as a pollution-neutralizing buffer. This subsequent re-sale
could be used to recoup part of the cost of the original acquisition.
Little difficulty in reselling land subject to negative restrictions could
be expected in rural areas, where the restricted section will usually
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form only a part of a much larger tract. In urban areas, assembling a
tract of land large enough to absorb the restricted section may be more
difficult. The land acquisition agency may have to settle for a lower
price on the restricted portion in order to find a buyer willing to accept
the restricted area as well.
Attempting to extend the law of eminent domain to include condemnation
for re-sale is a most ambitious undertaking. Heretofore, this type of ex-
cess condemnation (called the recoupment theory since the condemning
authority attempts to "recoup" the cost of the improvement by selling the
excess land) has been held unconstitutional as a taking for a private use
88
(aee Cincinnati v. Vester.) . However, recent trends could indicate a
departure from the judicial disfavor in which recoupment excess condem-
nation has been held. In a 1963 New York case, Courtesy Sandwich Shop v.
89
Port of New York Authority, defendant in condemning land in Manhattan
for the world trade center condemned excess property to lease to private
interests in order to produce revenue to help finance the cost of the pro-
ject. The court upheld the excess taking on the grounds that the revenue
produced by such leasing facilitated the building of the trade center
which itself was a public project. Similarly, in Southern Pacific Land
90
Co. v. U.S. , defendant in condemning land for a naval air station
condemned full title, the land including its mineral interests, in order
to enhance the marketability of the property if it ever decided to sell.
The Ninth Circuit upheld the taking, ruling that the advantageous liqui-
dation of a government investment is a legitimate consideration in deter-
mining the title to be condemned, and that the appropriate liquidation
of an investment which was for a public purpose is itself a public use.
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Moreover, if the excess land is condemned under the "protective"
excess condemnation theory, the argument for re-sale is strengthened
so long as appropriate restrictions are put on the use of the property
so as to assure the anti-pollution purpose for which the land was ori-
ginally acquired. The California protective condemnation statute speci-
fically provides for such re-sale with appropriate restrictions. The
relevant case law is also in accord. For example, in Culby v. Pearl
River Industrial Commission, the court not only upheld defendant's taking
of the land around its reservoir to protect it from contamination, but
also allowed the sale of this land so long as the deeds contained re-
strictions that the property would not be used in a manner inconsistent
with the public purpose for which it was acquired.
The extension of a permitted "protective" re-sale to include the
type of re-sale proposed here would be a considerable extension of the
current law as it would contradict the still disfavored recoupment theory
of excess condemnation. However, a strong argument may be made (A)
that the recoupment theory is not as strongly disfavored as it once
was, and (B) that the purposes proposed here are so closely analogous
to permitted protective condemnation re-sales that the required extension
may be made.
EMINENT DCMAIN: A SUMMARY
From the above discussion it seems clear that the eminent domain
power may be used to acquire land alongside a highway for use as buffers
to reduce the adverse environmental impact of automobile emissions. It
is also concluded that it is legally possible to acquire such land and
later re-sell it to recoup the cost of the acquisition, so long as
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appropriate restrictions are placed on the property so as to insure
its function as a buffer. However, this latter conclusion is an ambitious
extension of current law and the support for it is far weaker than for the
former conclusion.
Changes in state highway and in general condemnation statutes will
also be needed if the acquisition of buffer areas along highways for pur-
poses of controlling air pollution is to be made possible. While the
nature of this legislation will vary depending on which agency is given
the authority to acquire land for these purposes, a statute authorizing
the state highway agency to condemn land for the purpose of creating
91
buffer zones might read as follows:
The highway commission may acquire or condemn the whole or
part of any interest in land adjacent to any highway right-of-
way for use as a buffer area to reduce the environmental impact
of exhaust emissions from motor vehicles traveling on the
highway. The commission may also convey or lease any land so
acquired to its original owner or to any other person or entity
subject to such reservations, conditions, easements, covenants or
other contractual arrangements as will preserve the use of the
land for this purpose.
USE OF THE POLICE POWER TO REQUIRE PROTECTIVE SETBACK AREAS ALONG
HIGHWAY CORRIDORS
As an alternative to the acquisition of protective buffer areas
along highway corridors, setback areas can be required under the regulatory
police power which can accomplish the same purpose. Two major features
would distinguish a setback requirement program from the direct acquisi-
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tion of buffer areas. One has already been mentioned; setbacks would be
set aside under the uncompensated exercise of the regulatory police power,
and the land so set aside would remain in private ownership. The second
important difference arises from the nature of the police power, and
the government agencies that would have been authorized to exercise it.
In most states, the power to impose set back controls rests with local
government units rather than with the state highway department, although
some statutes do confer this power on state highway agencies. When the
power to impose setbacks , rests with local governments, the ability to
assure that the highway network will be adequately covered by setback
requirements will depend on the extent to which the state air pollution
or some other agency is able to convince local government units that
such controls are necessary. Since coordination of this kind will be
difficult to achieve, the argument for providing statutory power to im-
pose setbacks in the state highway commission is strong.
Statutory questions are not as important in this area, however, as
the constitutional issues. The following therefore concentrates on the
constitutional issues that are raised by setback requirements.
Constitutionality of Setback Requirements in General
The best way to approach the constitutional issue is to examine
the judicial treatment of the setback requirement. Political units have
established, either by separate ordinace or as part of a comprehensive
zoning ordinance, requirements that businesses or residences fronting
roads and highways be set back a required distance from the right of
way. These ordinances are passed under the police power of the munici-
pality as necessary to promote the health, safety, and welfare of the
community. There appears to be no reason why these ordinances cannot
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also be used to provide the necessary distance between receptor and pollu-
ter along the highway to eliminate the adverse effects of vehicular emis-
sions .
As indicated above, both local government units and state highway
commissions have been authorized by statute to impose setbacks. At
the local level, this requirement is sometimes made the subject of a
separate ordinance, while in other instances it is included as part of a
comprehensive local zoning ordinance. . An example of the first approach
is found in Illinois:
"In addition to existing powers and to the end that adequate
light, pure air, or safety may be secured. . . the corporate
authorities in each municipality have power by ordinance to
establish, regulate, and limit the building or set back lines
on or along any street, traffic way, drive or parkway . . .
as may be deemed best suited to carry out these purposes.
The powers given by this [section] shall not be exercised
so as to deprive the owner of existing property of its use or
maintenance for the purpose to which it is then lawfully
92
devoted." (emphasis added)
A Mississippi statute authorizes the state highway commission to impose
setbacks:
"The State Highway Commission as herein provided shall be
vested with the following powers to wit:
93
(14) To establish and enforce set back regulations."
An Oregon statute also applies to municipalities:
"The council or other governing body of any incorporated city
under an exercise of its police powers may establish or alter
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building setback lines on private property adjacent to any
alley, street, avenue, boulevard, highway or other public way
in such city. It may make it unlawful and provide a penalty for
erecting after said establishment any building or structure
closer to the street line than such set back line except as
94
may be expressly provided by the ordinance."
An example of a statute authorizing the establishment of the setback
requirement in a comprehensive zoning ordinance can be found in a
Pennsylvania statute, now repealed:
"Council may establish classes of buildings, structures, and
land for any or all of the purposes of zoning. Within the
zones defined council may regulate and restrict according to
the classes established by it:
(i) The establishment, maintenance, or setting back
95
of building lines upon streets."
Cases arising under these and similar statutes have almost uniformly
upheld the constitutional validity of the setback requirement. The land-
mark case in this area was a 1927 Supreme Court decision, Gorieb v.
96
Fox, in which the Court upheld a local ordinance establishing set -
back lines, in sustaining the constitutionality of the setback ordinance ,
the Court used language which is equally applicable to our situation,
the use of the setback to secure buffers for environmental protection
along the highway:
"[The setback] rests for its justification upon the reasons which
have risen in recent times as a result of the great increase and con-
centration of the population in urban communities and the vast changes
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in the extent and complexity of the problems of modern city life.
State legislatures and city councils who deal with the situation from
a practical standpoint are better qualified than the courts to determine
the necessity, character, and degree of regulation which these new and
perplexing conditions require; and their conclusions should not be
disturbed by the courts unless clearly arbitrary and unreasonable. . .
Front yards afford room for lawns and trees, keep the dwellings farther
from the dust, noise, and fumes of the street, add to the attractiveness
and comfort of a residential district and create a better home environment
. . . Setback requirements have a rational relation to public safety,
health, morals, and general welfare and therefore can be sustained as
a legitimate exercise of the police power."
This somewhat lengthy quotation, although written in 1927, has
been reiterated both verbatim and in principle in later cases. Thus a
1961 Texas case, Fisher v. City of Irving, ? denied plaintiff a permit
to build a gasoline station as his plans called for building within the
80 foot setback line established by ordinance. The court upheld the vali-
dity of the setback ordinance, stating that Irving as a home rule city
had the authority to pass any ordinance reasonably necessary for the pro-
tection of the health, safety, comfort or welfare of the public. Without
the setback ordinance, the court said, abutting property owners could and
would develop their property up to the street line. As the Texas court
saw such development as injurious to the interests of abutting property
owners, the ordinance advanced the public welfare, health, and safety
and was a valid exercise of the police power.
In Boardman v. Davis98 an Iowa court relied heavily on Gorieb to
validate a 50 foot setback requirement, forcing defendant to remove a
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house built 30 feet from the street in violation of the ordinance. In
Town of Atherton v. Templeton"9 defendant was enjoined from having
a tennis court in his front yard in violation of a zoning ordinance
requiring residential dwellings to be setback 60 feet from the front
property line and prohibiting structures in front yard areas. The Cali-
fornia court in upholding the zoning ordinance made two relevant points:
(1) elimination of structures from front yard areas is desirable in that
it affords room for lawns and trees which add to the attractiveness and
comfort of a residential district; and (2) every presumption will be indul-
ged in favor of a zoning or setback ordinance and these ordinances will
not be set aside unless there is no reasonable relation between the regu-
lations established and the public welfare or unless the physical facts
show that there has been an unreasonably oppressive interference with
property rights. This presumption is usually accorded to regulations of
100
land use. Similarly, in McCavis v. De Luca, the Minnesota court had
little trouble validating a 15 foot set back ordinance enacted under the
police power although not enacted as part of a zoning ordinance:
"That setback lines may be established as part of a zoning
ordinance in the exercise of the city's police power cannot
now be in doubt. There is no reason why setback lines may
not be adopted in the absence of a general ordinance providing
for zoning as well as part of such ordinance."
101
Also, in French v. Town of Clintwood, a Virginia court upheld the
validity of a 10 foot setback provision in a zoning ordinance in the
following language:
". . .we have adopted the view that a municipal ordinance
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enacted in the interest of the health, safety and convenience
of the public prohibiting an owner of property bordering on a
public street to construct buildings nearer than a specific
distance from the street line does not unconstitutionally
deprive such owner of his property without due process of
law."
102
Finally, Burgden Development Co. v. Kiefaber, a 1960 Ohio case,
seems to sum up the law in this area. In approving a provision in a
zoning ordinance calling for a 60 foot setback, the court said:
"That lot sizes, setback building lines, and yard sizes may
be regulated by zoning ordinances in the proper exercise of
the police power is no longer an open question. . . Far
larger yard spaces than involved here have consequently
been approved and held valid."
Setbacks in Rural Areas
Thus it appears that there is little doubt about the constitutionality
of setback requirements in general. Nevertheless, problems have arisen
in the application of setback requirements in certain land use control
settings.
First, there is a question whether setback regulations are valid
at all in rural areas. As most new highways will be built in less
developed areas it would seem most imperative to zone this as yet
undeveloped land so that future receptors to be located in this area
will not be adversely effected by the pollution impact from cars travel-
ling on future highways. However, a 1957 Pennsylvania case, Schmalz v.
103
Buckingham Township Zoning Board of Adjustment, held that a
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zoning ordinance establishing a 50 foot setback line in a wholly agri-
cultural and rural district was invalid as an unreasonable and improper
exercise of the police power. The court held that even though the area
involved might someday be non-agricultural, and even though setbacks are
justified in urban areas, they are not necessarily reasonable in rural
areas. Their reasonableness, the court held, had to be determined
according to existing conditions, and the 50 foot setback served no
justifiable function in the rural area.
This case could present grave problems for setback zoning in rural
areas. However, the court's reasoning can be dmllenged. Perhaps the
main basis of criticism, from our point of view, is that the court did
not consider the use of setbacks for the purpose of alleviating the
adverse effects of air pollution. If the level of traffic on a road is
high, air pollution emissions can be dangerous to abutting property owners
in rural as well as in urban areas. Earlier cases considering the con-
stitutionality of setback ordinances did not explicitly take into account
the air pollution problem, although the Gorieb case did mention protection
from the "fumes" of passing vehicles as a basis for imposing setbacks
in that case. Direct and more explicit consideration of the air pollution
problem would thus seem to provide a reasonable basis for setback ordinances
and would serve to justify their imposition in circumstances such as those
presented in the Schmalz opinion. What may be needed is more direct atten-
tion, both in the purpose clauses of enabling legislation and in the plan
of the regulations, to the impact of the setback ordinance on the control
of air pollution generated on highway corridors.
Permitted Depth of Setbacks
Another problem arises in deciding what the permitted depth of the
5-46
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setback should be. A setback of 200 feet or more might be required to
significantly reduce the impact of vehicular emissions. Can an ordinance
requiring a 200 feet setback be constitutionally defended? Extensive
research had discovered no case in which such a deep setback requirement
was validated either as part of a zoning ordinance or as an independent
ordinance. The deepest permitted setback discovered was 80 feet from the
104
edge of the property line. This problem can be solved in one of three
ways: (1) We could be satisfied with an 80 foot setback since a buffer
of such depth would allow for the diffusion of part of the emissions.
However, the 80 foot deep buffer, while considerably better than no buffer
at all, is still less than the optimum. (2) A mixture of the eminent do-
main and police powers could be employed. Thus, if 80 feet is the max-
imum depth of land that can be secured without cost through the police
power, the remaining required land could be acquired through the exercise
of the eminent domain power. (3) Perhaps the entire setback question could
be reconceptualized to permit the required 200 foot setback from the high-
way.
The legal foundation for such a setback has been firmly established.
The police power of a municipality may be exercised through the enact-
ment of appropriate legislation to promote the health and safety of its
inhabitants, so long as the means adopted are rationally related to the
promotion of these objectives. It is also well established that polluted
air is detrimental to the health and well being of those that breathe it.
Synthesizing these accepted principles, we can advance the following
proposition: Appropriate legislation for pollution abatement purposes
may be enacted under the police power as necessary to promote the
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health and welfare of the residents of the community. Since it has been
shown that buffer strips 200 feet or more deep are often needed to effec-
tively reduce the local impact of vehicular emissions, legislation pro-
viding for these buffers is a rational means of obtaining the desired
end of pollution abatement. Hence businesses or residences may be re-
quired to setback 200 feet from major highways.
While the setback issue has heretofore never been presented in
precisely this manner, the logic of this argument points to the extended
application of setbacks, A somewhat analogous 1957 Wisconsin case, High-
105
way 100 Auto Wreckers, Inc. v. City of West Allis provides support for
this extended application. In Auto Wreckers the Wisconsin court upheld
the validity of a Wisconsin statute requiring that all automobile junkyards
be setback at least 210 feet from the center line of the highway. In
sustaining the validity of this statute the Wisconsin court used the fol-
lowing language, which could also be used to sustain the validity of a
200 foot setback ordinance for anti-pollution purposes:
"In this day none will dispute that government in the exercise
of its police powers may impose restrictions upon the use of
property in the interest of public health, morals and safety. . .
The court will not interfere with the exercise of the police power
by a municipality unless the illegality of the exercise is clear.
We are dealing with one of the most essential powers of a gov-
ernment, one that is the least limitable, the police power. . .
The municipality is the judge of the necessity and reasonableness
of its ordinance under the police power and its ordinance creates
a prima facie presumption that it is reasonable."
Moreover, in a recent encouraging Illinois case, Brunhill Towers
5-48
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106
v. Chaddick a lower Illinois court recognized the use of the zoning
ordinance for pollution abatement purposes. In Chaddick, plaintiff
was forced to discontinue the use of his parking lot since it violated
the town's zoning ordinance in that it was not surfaced with the required
material. The court upheld the validity of the surfacing section of the
ordinance and used the following language, which could signify an ex-
tended application of the police power in the pollution abatement area:
"We must note that the surfacing requirements of the zoning
ordinance were in the comprehensive amendment in part as a
measure to control dust pollution and that a municipality has
extensive power to pass ordinances for the health, safety and
welfare of the public provided that the public welfare requires
such application and that property owners do not suffer un-
reasonable exactions as contrasted with the resulting public
benefit. The parking lot in the instant case was covered only
with rolled stone and cinders and the Zoning Administration
apparently considered that the surface was inadequate to insure
that anti-pollution protection necessary in high density residen-
tial areas. The resurfacing of plaintiff's lot will contribute
in a small way to lessening of the amount of pollution in the
atmosphere."
The application of this quotation to the situation herein discussed is
obvious.
Planting Requirements in Setbacks
Assuming that a 200 foot setback ordinance could be upheld, could
the property owner be required to plant and maintain the needed vegetation
in the area so as to most effectively utilize it as a buffer strip?
5-49
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Probably the landowner will keep the area green of his own volition for
aesthetic purposes. Possibly the same anti-pollution rationale which
justified the setback ordinance in the first place could also require
that the setback area be kept in vegetation. The zoning of land so as
to provide buffer zones covered with vegetation has recently received
case law support. For example, a recent New Jersey case, State of New
107
Jersey v. Gallop Building, sustained that part of a zoning ordinance
which forbade development for business purposes of land located in a
business district within 50 feet of a neighboring residential district,
unless the business use was screened by evergreen trees so as to hide
it from the abutting residential district. The court upheld this provision
and stated that the permitted business operation in this contiguous area
had a potentially harmful influence requiring protection for abutting
property owners in the residential zone. The court also stated that such
a buffer provision contained attributes similar in character to setback
requirements found in zoning ordinances which, when reasonable in scope,
have been uniformly upheld as proper. Finally, the court held that the
buffer provision had a reasonable relationship to the public interest in
that it conserved the value of the abutting residential property and
furthered the aesthetics of the area.
Similarly, in a later New Jersey case, Quinton v. Edison Park
108
Development Corp., the validity of a provision of a township zoning
ordinance requiring a 100 foot buffer strip between a business use on an
area of 10 acres or more (i.e., a shopping center), and adjacent resi-
dential areas, was questioned. The buffer strip was meant to provide a
screen against light and noise that emanated from the shopping center.
5-50
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The New Jersey court upheld the constitutionality of the provision, not
only to protect the residents of the town which passed the zoning ordinance
but also to protect residents in an adjoining town. In so holding, the
court stated that shopping centers bring disturbing noises, lights, fumes,
and congestion and that the buffer provision passed to protect nearby
residents did promote the public health, safety, and welfare and hence
was a valid exercise of the zoning power. An analogy is easily drawn to
the use of buffers to protect owners of land abutting highways from the
dangerous and irritating pollutants emitted from the cars traveling on
these highways.
A somewhat contrary decision was reached in a 1970 Maryland case,
109
Spaid v. Board of County Commissioners for Prince George's County.
In Spaid, plaintiff's land was zoned for residential use even though it
was most difficult economically to build a house on this parcel since
it was located within an industrial zone. The purpose of this incongru-
ous zoning was to prevent all development on this parcel so as to utilize
it as a buffer zone between industrial and residential areas. The
buffer zone was to prevent the industrial uses from encroaching into the
residential area and to prevent existing and proposed re",'de.atial areas
from becoming more intensively developed. The court held that the zoning
was unreasonable, discriminatory, and confiscatory and that it deprived
plaintiff of his property without due process of law in violation of the
14th Amendment. However, there are some factual differences that effec-
tively distinguish Spaid from the New Jersey cases and from the issue
discussed here. First, as plaintiff's entire parcel was zoned for resi-
dential use, he was effectively denied the use of all of his land.
5-51
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In the New Jersey cases the affected parties merely had to dedicate a
portion of their land for the buffer area, development being permitted on
the other portion of the property owner's land. Similarly, if a 200
foot setback ordinance were enacted, all land more than 200 feet from the
edge of the highway would be available for development. On the other
hand, if the landowner owns less or slightly more than 200 feet of land
along the highway so that a 200 foot setback ordinance effectively pre-
cludes all development and deprives the landowner of all reasonable use
of his property, the ordinance will be confiscatory and hence unconstitu-
tional. This point will be discussed more fully below. Second, the Mary-
land court stressed that the zoning of plaintiff's land for this buffer
area would be used for the protection of others and was not for plaintiff's
benefit. The court thought that this was unfair and felt that the protected
parties' own land should be zoned to provide such protection to them.
While the New Jersey cases allowed zoning for buffers to protect the prop-
erty of others from the adverse effects of neighboring business uses, and
thus are irreconcilable with Spaid, the advocated setback requirement is
meant to protect the receptors whose property is 'zoned and may be uncon-
stitutional under the Maryland holding.
Application of Setbacks to Individual Properties
While in general setback requirements are valid it may be possible
that the specific application of such an ordinance to a particular piece
of property may be unreasonable, discriminatory, or confiscatory and
hence may be unconstitutional as it affects that piece of property. If,
as advocated, a zoning ordinance is passed or amended or a setback or-
dinance is passed requiring a 200 foot setback for properties fronting
the highway, various problems will arise. The first of these problems
5-52
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was mentioned above. If an abutting landowner owns so little land that
the setback requirements deprives him of all the use of his property, the
ordinance may be confiscatory as it applies to this landowner and hence
110
invalid. For example, in Richards v. Zoning Board of Appeals of Malverne,
where setback restrictions on each side of a corner lot in a residential
district reduced the usable portion by about one-fifth the size of the
lot and limited construction of a dwelling to a width of 11 feet, the
ordinance was deemed confiscatory and plaintiff was granted a variance
permitting construction of a dwelling with a width of 21 feet. Simi-
111
larly, in Householder v. Town of Grand Island, a town ordinance pro-
hibiting the erection of buildings fronting a highway within 90 feet of
the right of way was declared unconstitutional and unenforceable as
applied to plaintiff's property. Since the 90 foot setback, if observed,
would have reached almost to the edge of a river, the setback prevented
the plaintiff from building any structure whatever on his property and
thus deprived him of all appropriate use and enjoyment of his property.
112
Finally in Foshour v. County of Contra Costa, uhere setbacks
on each side of plaintiff's triangular lot reduced the bulidable portion
to that adequate on which to build a doll house, the ordinance was declared
confiscatory and hence unconstitutional for depriving plaintiff of his
property without due process of law. However, for a setback ordinance
to be deemed confiscatory the landowner must be denied the use of his
property for any and all reasonable purposes. Mere financial inconven-
ience is not enough. Thus, in Sierra Construction Co. v. Board of_Appeals
113
of the Town of Greece the New York Court of Appeals upheld the validity
of an 82 Toot setback requirement and stated that .in order for the court
5-53
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to sustain an attack upon the validity of a setback ordinance an aggrieved
property owner must show that if the ordinance is enforced the consequent
restriction upon his property precludes its use for any purpose to which
it is reasonably adapted. In this case, even with the 82 foot setback,
plaintiff still had 150 feet left on which to build a house. Hence the
GJ. linance was sustained. A similar decision was reached upon identical
114
reasoning in Symonds v. Bucklin.
Should the setback ordinance prove to be confiscatory a variance
could be granted enabling the property owner to utilize enough of his
property to avoid a holding of unconstitutionality. The buffer zone may
still have an important use as a method of protecting against pollution
in these instances if the variance power is utilized to restrict uses
permitted in the buffer zone to uses which would not be adversely af-
fected by exhaust pollution. For example, residential uses might be
prohibited in the buffer area, or permitted only if built and constructed
to minimize the effect of air pollution on residents in the dwelling.
A second practical problem arising when the setback ordinance is
applied to specific property is that pre-existing non-conforming uses
must be permitted to remain or at least given a reasonably lengthy
amortization period before they are removed. This problem would be
particularly acute in developed areas but practically non-existent
in undeveloped areas. On the basis of the zoning experience, however,
it should be possible to develop some method for requiring the removal
of non-conforming uses in buffer areas after a reasonable period of
time.
The required buffers may be secured along the highway corridor
5-54
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through exercise of the police power at a minimal cost. Problems will
arise in applying such setback ordinances to pre-existing non-conforming
uses and to very small parcels. However, these problems are not insur-
mountable, and it certainly appears that pollution abatement can be
legally carried out in the highway area without a prohibitive cost
through the use of the setback approach.
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NOTES
1. Dabberdt, Ludwig, § Johnson, Urban Diffusion of Carbon Monoxide
in The Relationship of Land Use and Transportation Planning to Air
Quality Management 62 (G. Hagevik ed. 1972).
2. Alan M. Voorhees and Associates, Inc., A Guide for Reducing Air
Pollution Through Urban Planning 2-35 (1971).
3. Morton Corn, Nonviable Particles in the Air,- in 1 Air Pollution 49
(2nd ed. Arthur C. Stern ed. 1968) [Hereafter cited as Stern].
4. Ibid. 60.
5. A.J. Haagen-Smit and Lowell G. Wayne, Atmospheric Reactions and
Scavenging Processes, in Stern 182.
6. R.C. Wanta, Meteorology and Air Pollution, in Stern 207. For a
more detailed analysis of particulate fallout characteristics see
Stern 211-9.
7. A.L. Page et al., Lead Quantities in Plants, Soil and Air Near Some
Major Highways in Southern California, 41 Hilgardia 1-31 (No. 1
July 1971).
8. D.N. Kalyuzhnyi et al., Industrial Enterprises and Residential
Quarters, in Peter C. Rydell and Gretchen Schwarz, Air Pollution
and Urban Form: A Review of Current Literature, 34 J. Amer. Inst.
of Planners (March 1968) [Hereafter cited as Rydell].
9. I.A. Singer, An Objective Method for Site Evaluation, a paper pre-
sented at the annual meeting of the Air Pollution Control Ass'n.
(1959).
10. Frank L. Cross, Jr. and Roger W. Ross, New Developments in Fluoride
Emissions from Phosphate Processing Plants, J. Air Pollution Control
Ass'n. (January 1969), in Cross, Community Air Pollution Protection
Using Buffer Zones 7-9 (unpublished manuscript n.d.) [Hereafter cited
as Cross].
11. Frank L. Cross, Jr., Air Pollution at a Dolomite Plant, Minerals
Processing (November 1967), in Cross 7, 9-10.
12. Frank L. Cross, Jr., How One State Set Air Pollution Standards for
Asphalt Plants, Roads and Streets (June 1965), in Cross 7, 11-12.
5-56
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13. L.H. Dworetsky et al., Report on Urban Expressway Air Pollution
at Ten Sites in New York City, in The Relationship of Land Use and
Transportation Planning to Air Quality Management 73 (G. Hagevik
ed. 1972) [Hereafter cited as Dworetsky].
14. General Electric Company, Final Report on Study of Air Pollution
Aspects of Various Roadway Configurations 44 (June 1971).
15. Ibid. 55.
16. NOAA Environmental Research Laboratories, Air Pollution in the
Locality of Buildings 520 (1971), in H.W. Georgii, 40 Bulletin
World Health Organization 624-35 (1969).
17. Dworetsky 77, 81.
18. Dworetsky 79, 99.
19. Dworetsky 79, 83.
20. Dworetsky 79, 84.
21. Dworetsky 192-4. See also General Electric Company complete study;
John Yocom et al., A Study of Indoor-Outdoor Air Pollutant Rela-
tionships (NTIS No. PB 195338 May 1970).
22. Saul Rich, Effects of Trees and Forests in Reducing Air Pollution, in
Trees and Forests in an Urbanizing Environment 32 (1971) [Hereafter
cited as Rich].
23. H.E. Heggestad, How Plants Fight Man-Made Pollution, 39 The
Science Teacher (No. 4 April 1972). See F. Elder and C. Hosier,
Ragweed Pollen in the Atmosphere (1954); P.J. Zinke, Forest
Interception Studies in the United States, in Sopper and Lull,Forest
Hydrology 137-61 (1967); N.C. Cassidy, The Effect of Cyclic Salt
in a Maritime Environment: The Absorption by Plants of Colloidal
Atmospheric Salt, 28 Plant and Soil 390-406 (1968); F.H. Borman
et al., Fallout on the Vegetation of New England During the 1957
Atom Bomb Test Series, 39 Ecology 376-8 (1958); E.M. Romney et
al., Contamination of Plant Foilage with Radioactive Fallout, 44
Ecology 343-9 (1963); R.S. Russell, An Introductory Review-Inter-
ception and Retention of Airborne Materials on Plants, 11 Health
Physics 1305-15 (1965) [Hereafter cited as Heggestad].
24. William H. Smith, Trees in the City, 36 J. Amer. Inst. of Planners
431 (No. 6 November 1970) [Hereafter cited as Smith].
25. Ibid.
26. A. Bernatsky, The Importance of Protective Plantings Against Air
Pollutants, in Air Pollution Proceedings, First European Conference
on the Influence of Air Pollution on Plants and Animals 383-95
(Trans. from German by Belov and Associates 1968).
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27. Rich 31.
28. Paul E. Waggoner, Role of Plants in Improving the Environment, 1
J. of Environmental Quality 123-7 (No. 2 1972).
29. George P. Hanson and Linda Thorne, A Partial Pollution Solution:
Plant Trees, 19 Lasca Leaves 35-6 (June 1970).
30. C.A. Federer, Effects of Trees in Modifying the Urban Microclimate,
in Trees and Forests in an Urbanizing Environment 23-7.
31. F.W. Went, The Forest: What It Does and How It Is Established in
Smith 432.
32. Victor Olgyay, Design with Climate-Bioclimate Approach to Archi-
tectural Regionalism (1963), in Rydell.
33. R. Geiger, The Climate Near the Ground (1965), in Smith 432.
34. Ibid.
35. Panel on Weather and Climate Modification, Weather and Climate
Modification - Problems and Prospects, 2 Research and Development
(1966), N.J. Rosenberg, The Influence and Implications of Windbreaks
on Agriculture in Dry Regions, in Ground Level Climatology (R.H.
Shaw ed. 1967), in Smith 433.
36. P.M. Felton and H.W. Lull, Suburban Hydrology Can Improve
Watershed Conditions, 94 Public Works (1963), in Smith 433.
37. R.C. Newcomb, Geologic Influence on Water Storage and Movement,
Symposium of Forest Watershed Management 57-8, in Smith 434.
38. Heggestad.
39. D.H. Urie, Influence of Forest Cover on Ground Water Recharge,
Timing and Use, in Sopper and Lull, Forest Hydrology 313-24.
40. 1 .C. Turner, Noise Standards, 37 Fed. Reg. 11730 (1972).
41. Smith 430.
42. T.F.W. Embleton, Sound Propagation in Homogeneous Deciduous and
Evergreen Woods, 35 J. of the Acoustical Society of Amer., 1119-25
(1963), in Smith 431.
43. Gerhard Reethof, Effect of Plantings on Radiation of Highway Noise,
a paper presented at the annual meeting of the Air Pollution Control
Ass'n. (1972).
44. Smith 431. See Embleton, Sound Propagation in Homogeneous Deciduous
and Evergreen Woods; P.M. Weiner and D.N. Keast, Experimental Study
of the Propagation of Sound Over Ground, 31 J. of the Acoustical Soc
of Amer. 724-33 (1959).
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45. David I. Cook and David F. Van Haverbeke, Trees and Shrubs for
Noise Abatement, U.S. Dept. of Agric. Research Bulletin 56-7 (No.
246 July 1971) [Hereafter cited as Cook and Haverbeke]. See also
Raymond E. Leonard, Effects of Trees and Forests in Noise Abate-
ment, in Trees and Forests in an Urbanizing Environment 35-38;
Mary McLean, Zoning Buffers: Solution or Panacea? Planning
Advisory Service, Amer. Soc. of Planning Officials (No. 13? 1960);
Kevin Lynch, Site Planning (2nd ed. 1971).
46. F.J. Meister, Measurement of Traffic Noise in West Germany, 29 J.
of the Acoustical Soc. of Amer. 81-4 (1957).
47. T.F.W. Erableton and G.J. Thiessen, Propagation of Train Noise and
Adjacent Land Use, 33 J. of the Acoustical Soc. of Amer. 1676
(1961).
48. Peter Durk, The Influence of the Forest on the Health of Man, in
Cook and Van Haverbeke 5.
49. Cook and Van Haverbeke 62-7.
50. Cook and Van Haverbeke 62-3.
51. Cook and Van Haverbeke 67.
52. Cook and Van Haverbeke 24-5.
53. Cook and Van Haverbeke 27-8.
54. U.S. Const., Amend. V, XIV.
55. There are three types of theories which support excess condemnation.
One is the "remnant theory," in which the condemning authority
condemns more land than is needed for the improvement in order to
prevent rendering the remaining remnant valueless and also to avoid
excess severance damages. The state's power to exercise this type
of excess condemnation has been judicially upheld in People v. the
Superior Court of Mercer County, 68 Cal. 2d 206, 436 P, 2d 342
(1968). In a second type of excess condemnation the condemnina
authority condemns more land than is needed for the improvement in
order to later re-sell it to realize the appreciation in value caused
by the improvement's location nearby. This type of excess condemna-
tion, appropriately called the recoupment theory, has been disallowed
on the grounds that the excess land condemned will be put to no
public use. Cincinnati v. Vester, 33 F. 2d 242 (6th Cir., 1929),
aff'd on other grounds, 281 U.S. 439 (1930). However, this judicial
disfavor of the recoupment theory is showing signs of changing, as
will be explained in the text. The third type of excess condemnation
is the protective or restrictive type. It is this type of excess con-
demnation that is generally discussed in the text, and the term excess
condemnation as used in the text will always refer to this type unless
the contrary is indicated.
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For recent articles exhaustively discussing the excess condemnation
issue see Matheson, Excess Condemnation in California: Proposals
for Statutory and Constitutional Change, 42 So. Cal. L. Rev. 421
(1969); Note Excess Condemnation --To Take or Not to Take -- A
Functional Analysis, 15 N.Y.L.F. 119 (1969).
56. E.g. Missouri Const. Art. I, §27; New York General Municipal Law
§36-A; Ohio Const. Art. XVIII,§ 10; Wisconsin Const. Art. II,§ 3A.
57. New Jersey Const. Article IV, § 6(3).
58. 65 Wash. 2d277, 399 P. 2d 330 (1965).
59. 223 Cal. App. 2d 23, 35 Cal. Rptr. 554 (1964).
60. 234 Miss. 788, 108 So. 2d 330 (1959).
61. 16 111. 2d 539, 158 N.E. 2d 766 (1959).
62. 374 F. 2d 218 (5th Cir., 1967).
63. 263 U.S. 78 (1923).
64. 3 N.Y. 2d 1006, 147 N.E. 2d 733 (1957).
65. 334 F. 2d 220, 221 (4th Cir., 1964).
66. 322 F. 2d 139 (6th Cir., 1963).
67. 376 Mich. 11, 135 N.W. 2d 364 (1965).
68. Wash. Rev. Code Ann.§ 47.12.250.
69. Calif. Streets $ Highways Code §104.3 (1965).
70. Ibid., §104.
71. 55 N.J. 347, 262 A. 2d 199 (1970).
72. N.J. Stat. Ann. Tit. 27, §7-22.4 (Supp. 1972). "The [highway]
commissioner is hereby authorized to acquire by ... condemnation
real or personal property for landscape and roadside development
appropriate for the restoration, preservation, and enhancement of
scenic beauty adjacent to Federal Aid highways."
73. 31 Wis. 2d 256, 142 N.W. 2d 793 (1966).
74. Wis. Stats. §15.60 (1961).
75. 262 U.S. 700 (1923).
76. 270 N.Y. 333, 1 N.E. 2d 153 (1936).
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77. 348 U.S. 26 (1954).
78. 297 F. Supp. 1137 (W.D. Okla. 1969).
79. 224 Cal. App. 2d 103, 36 Cal. Rptr. 308 (1964).
80. 41 Hawaii 219 (1955).
81. 405 P. 2d 185 (Okla. 1965).
82. 351 S.W. 2d 717 (Mo. 1969).
83. 34 N.J. Super. 84, 226 A. 2d 840 (App. Div. 1967).
84. Dept. of Public Works $ Farina, 29 111. 2d 474, 194 N.E. 2d 209
(1963).
85. Tracey v. Preston, 172 Ohio St. 567, 178 N.E. 2d 923 (1962).
86. 156 Conn. 521, 245 A. 2d 579 (1968).
87. People v. County, 68 Cal. 2d 206, 436 P. 2d 342 (1968).
88. 33 F. 2d 242 (6th Cir., 1929), aff'd on other grounds, 281 U.S.
439 (1930).
89. 12 N.Y. 2d 379, 190 N.E. 2d 402 (1963).
90. 367 F. 2d 161 (9th Cir., 1966).
91. Some of the same problems that will arise in the acquisition of land
for purposes of alleviating air pollution emissions along highways
have also risen in the highway scenic easement program, and exper-
ience in this program should also be consulted. See D.T. Sutte §
R.A. Cunningham, Scenic Easements: Legal, Administrative, and Valu-
ation Problems and Procedures (1968).
92. 111. Ann. Stat. C. 24, §11-14.1 (1962).
93. Miss. Code Ann. §8038(n) (Supp. 1972).
94. Oregon Rev. Stats. §227.290.
95. Pa. Stats. Ann. Tit. 53, §39103 (1957).
96. 274 U.S. 603 (1927).
97. 345 S.W. 2d 547 (Texas Ct. Civ. App. 1961).
98. 231 Iowa 1227, 3 N.W. 2d 608 (1942).
99. 198 Cal. App. 2d 146, 17 Cal. Rptr. 680 (1961).
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100. 233 Minn. 372, 46 N.W. 2d 873 (1951).
101. 203 Va. 562, 125 S.E. 2d 798 (1962).
102. 113 Ohio App. 523, 179 N.E. 2d 360 (1960).
103. 389 Pa. 295, 132 A. 2d 233 (1957).
104. E.g. Fisher v. City of Irving, supra; Gait v. Cook County, 405
111. 396, 91 N.E. 2d 395 (1950).
105. 6 Wis. 2d 637, 96 N.W. 2d 85 (1957).
106. 274 N.E. 2d 872 (111. App. 1971).
107. 103 N.J. Super. 367, 247 A. 2d 350 (App. Div. 1968).
108. 59 N.J. 571, 285 A. 2d 5 (1971).
109. 259 Md. 369, 269 A. 2d 797 (1920).
110. 285 App. Div. 287, 137 N.Y.S. 2d 603 (1955).
111. 202 Misc. 550, 115 N.Y.S. 2d 852 (Sup. Ct. 1951), aff'd, 305
N.Y. 805, 113 N.E. 2d 555 (1953).
112. 203 Cal. App. 2d 602, 21 Cal. Rptr. 714 (1962).
113. 12 N.Y. 2d 79, 187 N.E. 2d 123 (1962).
114. 197 F. Supp. 682 (B.C. Md. 1962).
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CHAPTER 6
SELECTED LOCAL CONTROLS
PERFORMANCE STANDARDS IN ZONING ORDINANCES
Performance standards in zoning ordinances provide a link between
the direct controls over pollutant emissions which are typical of air
pollution codes, and the separation of incompatible land uses on a
communitywide basis which is carried out by means of the zoning ordinance.
Zoning ordinances have traditionally classified land uses on the basis of
external characteristics that indicate whether certain uses would be
considered incompatible in some areas of the community. For example,
industrial uses have usually been excluded from residential areas.
Additional distinctions are also made within general classes of land uses,
and industrial uses, for example, are often subclassified into light,
medium, and heavy. An industrial use which is placed in one of these
categories is not usually allowed to locate in an area reserved for
another of these categories.
Performance standards, on the other hand, are one of the tradi-
tional regulatory techniques that are used to control pollutant emissions.
As defined in the provisions of the Clean Air Act of 1970, which authorize
federal standards of performance for new stationary sources of pollution,
a performance standard is "a standard for emissions of air pollutants
which reflects the degree of emission limitation achievable through the
6-1
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1
application of the best system of emission reduction."
Most of the zoning innovations that have been introduced by the
performance standards concept have been applied to industrial uses, and
it is on these uses that we will concentrate here. The difficulty with
industrial zoning is that the air pollution which is produced by each
class of industry within zoning subclassifications is not taken into
account when these subclassifications are created, even though the
basis on which these land use distinctions are made include the propensity
of industries within these classifications to pollute the air. Traditional
zoning has therefore ignored the obvious fact that it is not the character
of an industry that determines whether it is more or less obnoxious to its
environment (the rationale for segregation), but rather the extent to which
it can control the external effects of its operations. Performance stan-
dards were introduced in zoning as a method of overcoming these limitations
in the traditional zoning ordinance.
The Origins of Performance Standards Zoning
Dissatisfaction with the traditional use lists that preceded per-
formance standards zoning arose for several reasons. There was no
general agreement on where to draw the dividing line between light,
medium, and heavy industries. It was difficult to include in a use list
all possible new industries; therefore, new, well-cnialifieri industries that
did not happen to be listed in the zoning ordinance were kept out. Also, tech-
nical progress kept changing the characteristics of many existing in-
dustries, rendering the lists obsolete.
Another major shortcoming was the failure to take account of the
fact that plants manufacturing the same product vary widely in their
nuisance producing characteristics, both at any given time and especially
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over any extended period of time. The size of the plant and the degree
of modernization in its manufacturing operations greatly influence the
extent of its environmental impact. Nor are most industrial nuisances
associated directly with the product manufactured. The making of "elec-
tronic parts," for example, can be a nuisance-free operation, but it
can also create some serious air pollution problems, as when magnet wire
is made or electrical transformers are potted (soaked with plastic material)
The crude division of uses achieved by many zoning ordinances left
many industries side by side which were quite incompatible, and confined
to a heavy industry district some of which were capable of being "good
neighbors" to light industry or even to commercial uses. Use lists
provided no incentive to the older plant to modernize and update its
operations so as to be less of a nuisance, for there was no guarantee
that other nearby establishments would do the same.
Performance standards in zoning were originally conceived in 1951
2
by Dennis 0'Harrow, then director of the American Society of Planning
Officials, as a means of overcoming these limitations in the traditional
3
zoning ordinance. First, since industrial districts were primarily con-
cerned with classification according to nuisance generation, it was felt
that regulations phrased directly in these terms, if properly worked out
and administered, would be more effective than regulations based upon
use lists. Such regulations would encourage innovation by assuring manu-
facturing industries a better environment if they would eliminate or re-
duce the nuisance effects of their operations. Second, there was a
desire to update "primitive" industrial zoning by using objectives, quan-
titative tests in lieu of such qualitative, indefinite nuisance des-
6-3
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criptions as "offensive" or "objectionable". Third, use of precision
measurements would help lessen the rigidity of industrial classifications.
"Effects" regulation is more reasonable and often less restrictive than
regulation based upon use lists.
0'Harrow therefore suggested that the detailed and often inequit-
able catalogues of permitted uses in zoning ordinances be replaced with
scientific standards that could measure the nuisance impact of industry.
While the three-fold classification of industrial districts (light-medium-
heavy) was retained, the basis for this classification was shifted from
the control of use to the control of effect ("effects" zoning). Any use
could be located in any industrial district if it could comply with
measureable performance standards fixing the permissible level of environ-
mental impact.
New York City's zoning ordinance (1961) illustrates this approach.
Light, medium, and heavy manufacturing districts are also designated as
"high performance," "medium performance", and "low performance" districts.
The purpose of the Ml (light manufacturing) district is to provide for
those manufacturing and related uses 'Which can conform to a high level
of performance standards,' while M3 (heavy manufacturing) districts
"are designed to accommodate the essential heavy industrial uses which
involve more objectionable influences and hazards, and which, therefore,
can not reasonably be expected to conform to those performance standards
which are appropriate for most other types of industrial development."5
0'Harrow had listed 11 types of effects for which standards could be
quantified,^ a list which the American Society of Planning Officials
(ASPO) subsequently expanded to 14.
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Chicago, in its 1957 amendment to the zoning ordinance, became
the first city to incorporate industrial performance standards. Its ordi-
nance regulates noise, vibration, smoke and particulate matter, toxic or
noxious matter, odorous matter, fire and explosive hazards, and glare or
heat. New York City's 1961 zoning ordinance also regulates humidity and
radiation. More recent ordinances may include such other external effects
as sulfur oxides and waste matter.
Although performance standards were developed for industrial zoning
and are so employed in almost all the ordinances that have adopted them,
performance standards zoning can theoretically also be applied to resi-
dential and commercial uses. Some ordinances do apply fundamentally
similar performance standards to all zoning districts. This is the case
8
with the zoning ordinances of Marion County, Indiana. The proposed
code for Virginia states that those standards which apply to the light
industrial district "shall be applied to districts other than industrial."
A survey taken by ASPO in late 1970 showed that 19 percent of the res-
pondents applied performance standards to commercial uses in their zoning
ordinances, 15 percent applied them to residential uses while 31 percent
employed them to regulate industry.
The issue of extending performance standards to commercial and
residential districts is beyond the scope of this chapter, which deals
only with industrial performance zoning. Suffice it to note, however,
that the extension of performance standards to other districts creates
additional enforcement problems, that some of the standards essential
to the measurement of industrial activities have little applicability to
residential housing, and that there are some residential uses, such as
lawn mowing, air conditioning, cooking malodorous foods, and outdoor
-------
cooking which may not conform strictly to performance standards that
might apply in a restricted industrial zone.
The drawback of performance standards zoning as applied to industrial
uses also appears to lie primarily in the method by which they are admin-
istered. Performance zoning requires extra enforcement personnel with
high technical ability, both to evaluate plans before construction and
to enforce the standards after construction. Use lists have the virtues
of certainty and ease of administration. Some industries are unwilling
to locate in areas where they cannot determine their compliance with
performance standards until after the plant is built. Furthermore, if
it is concluded after the plant is built that the emission standards
cannot be met, it is the rare local government that will tell the industry
to relocate.
By classifying and grouping industries solely on the basis of
external effects, performance standards should, in theory, render use
lists obsolete, since any industry ought to be free to locate in any in-
dustrial district by demonstrating its ability to meet the standards for
the district. In practice, no city has been bold enough to abandon tradi-
tional use district boundaries. Performance zoning is thus used as a
supplement to rather than as a substitute for the older type of regulation,
serving to provide a higher degree of differenticition among industrial
districts and to allow the least noxious industrial uses close to residen-
tial districts.
Use lists in performance zoning ordinances can be applied to
prohibit named industries without regard to performance standards other-
wise applied. The Chicago ordinance lists 27 activities, such as the
storage or manufacture of dynamite, TNT, or nitroglycerin, which are
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10
excluded (unless licensed by the Fire Prevention Bureau). Use
lists can also be utilized to designate those activities which are
permitted in each manufacturing district "as of right," without regard
to performance standards otherwise applied. Both the Chicago and New
York zoning ordinances do this to permit such uses as banks, restau-
rants, community facilities, and amusement establishments. Finally,
use lists can be applied to enumerate selected industries or groups of
industries permitted to locate in a given industrial zone provided they
comply with the performance standards for that zone. The New York
City zoning ordinance imposes performance standards upon uses included
in certain "use groups." Two such use groups are custom manufacturing
activities and automotive and other necessary semi-industrial uses.
Performance Standards and Air Pollution
Environmental effects most commonly controlled by performance
standards in a zoning ordinance are air pollution and various aspects
thereof. Performance standards for air pollution have classically
covered smoke, particulate matter, odors, and toxic matter. Recently
some zoning ordinances have added sulfur oxides to this list. Widespread
experience with smoke control ordinances and the more advanced state
of research on standards for smoke pollution and dust, in comparison to
other nuisance effects, account for the universal appearance of emission
limitations on air contaminants in performance zoning.
Conceptually there are two starting points to the establishment of
performance standards, both ending in some form of source control. They
12
are one, ambient standards, and two, emission standards. Almost all
zoning ordinances use the latter approach, though in the proposed zoning
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ordinance for Puerto Rico ambient standards are used, at least in setting
standards for participate matter.
Under the ambient standards approach the community determines the
level of a particular environmental contaminant that it will tolerate.
The community then establishes the performance standards that will ensure
that these levels are not exceeded. The criteria for determining ambient
air standards may be based on the effects of particular contaminants on
human health, vegetation and livestock, property, visibility, etc., as
in the federal air pollution control program under the 1970 Clean Air
Act.
The alternate route to formulating performance standards, and the
one generally followed by zoning ordinances, is the establishment of
emission standards that deal with the technical csipacity of desired in-
dustries to meet a specified nuisance output. In this case the starting
point is source control rather than a predetermined ambient air level.
No attempt is made to describe an acceptable air environment, that is,
to define the "end state" aimed at by the emission rates, other than
to declare vaguely that they are designed to promote and protect "the
public health, safety, and general welfare" or to protect neighboring
residential and commercial uses from "offensive" or "objectionable"
13
influences.
Smoke - Smoke is defined by the New York City ordinance as "any
visible emission into the open air from any source, except emissions of
an uncontaminated water vapor." Smoke emissions are evaluated by means
of the Ringelmann Chart, which contains graduated shades of gray varying
in equal steps from white to black. The average performance standard
6-8
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prohibits or restricts for a specified time period the emission of smoke
of a shade or density equal to or darker than a specified number on the
chart, the numbers ranging from zero (all white or clear) to five (com-
pletely black or opaque).
New York's zoning ordinance is typical in setting the maximum per-
mitted smoke emission standard at Ringelmann number 2: "In all Manufac-
turing Districts, the density of emission of smoke during normal operations
shall not exceed Standard Smoke Chart number 2. •> Some communities
have tightened the requirements to Ringelmann number 1 and in some cases
Ringelmann number 0. The proposed Audubon, New York, zoning ordinance
(1971) prohibits the emission of smoke darker than Ringelmann number 1
in M-l (light industrial) and M-2 (general industrial) districts, except
that in the M-2 district "smoke of a shade not to exceed Ringelmann number
3 is permitted for up to 3 minutes total in any one 8 hour period."-^
The Cook County, Illinois (1960), Chicago, and New York City ordinances
also limit smoke intensity and the duration of emission in terms of "smoke
units," a measure which represents the project obtained by multiplying the
Ringelmann Chart number by the emission time in minutes. The emission of
smoke at density number 2 for 4 minutes equals 8 smoke units. New York
City sets a maximum of 10 smoke units per hour per stack in Ml districts
(light manufacturing), 20 such units in M2 districts (medium manufacturing),
and 30 such units in M3 districts (heavy manufacturing). These standards,
which are tighter than those set in the earlier Chicago zoning ordinance,
are in addition to the previously mentioned maximum density of Ringelmann
number 2 which applies to all manufacturing districts. In addition, the
performance standard zoning ordinances commonly contain a catch-all pro-
vision declaring that the emission of smoke "in such manner or quantity
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as to be detrimental to or endanger the public health, safety, comfort,
or welfare" to constitute "a public nuisance [which] shall henceforth be
unlawful."18
It should be noted that the Ringelmann test is not particularly use-
ful as a control over air pollution because it does not provide a measure
of the actual amount of pollutants being released. The Ringelmann test
is based only on the appearance of the emission and does not indicate the
19
quantity or type of air pollutant released.
Dust and Other Particulate Matter - Particulate matter, the major
visible ingredient of smoke, is defined as fine particles, either solid
or liquid, that are small enough to be dispersed and carried in the air
(dust is one sort of solid particulate matter). Particulate matter is
usually divided into three classes: combustion products, made up of smoke,
soot, and flyash; industrial dust from foundries, paint spraying, steel
mills, or rock crushing; and products of wind erosion from streets, alleys,
20
playgrounds, vacant lots, and open fields.
A distinction is often made between the particulate pollution of
fuel burning equipment, refuse burning equipment, and manufacturing
processes. Emission standards for particulate matter from manufacturing
processes take various forms. The New York City ;:oning ordinance sets
its standards in terms of pounds per hour per pounds of process weight,
"process weight" being "the total weight of all materials used in any
process which discharges dust into the atmosphere," but excepting liquid
21
or gaseous fuels or combustion air. Thus, in all manufacturing districts
the maximum limit for manufacturing processes is 0.50 pounds per hour
22
for 100,000 pounds of process weight. In Ml or M2 districts a flat
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limit is placed on the amount of matter that may be emitted from all
sources (i.e., manufacturing processes and combustion) from a single
stack of 33 pounds per hour in the Ml district and 250 pounds per hour
23
in the M2 district.
Another approach, used by Cook County and Chicago, Illinois, relates
the control of particulates to land area. The regulations in the zoning
ordinance vary in the three industrial districts and set forth a maximum
emission rate in pounds per hour per acre of property. Correction factors
make allowances for the height of emissions and, in the Chicago ordinance,
for the velocity and temperature of emissions. The total net rate of
emission (determined by adding the emissions in pounds per hour from
each source in the lot, then dividing by the number of acres in the lot
to arrive at the gross hourly rate of emission in pounds per acre, and
finally deducting from this the correction factors for stack height, tem-
perature, and velocity) from all sources within the boundaries of the
lot may not exceed one pound per acre of lot area during any one hour in
the Ml district, 3 pounds in the M2 district, and 8 pounds in the M3 dis-
24
trict. The effect of this type of regulation is to benefit a plant
with larger acreage and to penalize one with smaller acreage. At least
25
one writer has questioned the reasonableness of this appraoch. This
type of regulation will make compliance with performance standards depend
on whether the plant owner is willing and able to acquire additional
acreage if it is needed. In fully developed industrial areas, expansion
areas for existing sites may not be available.
Control of particulate emission can also start with ambient air
quality standards which are then related back to the emission point. Ground
level concentrations of air pollutants can be mathematically related to
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the strength of an emission source with meteorological dispersion for-
mulas . One of the basic meteorological dispersion formulas can be employed
to define an emission rate of particulate matter in pounds per hour, given
an acceptable air quality.
Thus far only the proposed Puerto Rico Land-Use Regulation (1969)
incorporates a dispersion formula in the ordinance itself, allowing an
industrial developer to calculate the allowable rate based on the par-
26
ticular characteristics of the proposed plant. In the proposed Puerto
Rico zoning ordinance the maximum acceptable ground level concentration
is 25 micrograms per cubic meter above background outside the zoning lot
in the light industrial district, 50 micrograms per cubic meter in the
general industrial district, and 100 micrograms per cubic meter in the
heavy industrial district, measured not outside the lot but rather in
27
any other industrial district.
It is worth nothing that Puerto Rico rejected the approach of
relating air pollution emissions to land area. The feeling was that
since developable land on the island was extremely limited, such a method
of regulation would appear to give the large landowner an unduly generous
28
allowance for "air rights" to disperse air pollutants.
As with smoke, zoning ordinances commonly add a general provision
prohibiting the emission of particulate matter in such quantity or manner
as to be detrimental to "public health, safety, comfort, or other aspects
29
of the general welfare, or to cause damage or injury to property. The
zoning ordinance also generally specifies that dust and other wind-borne
air pollution from storage areas, yards, service roads, or other untreated
open areas, should be minimized by appropriate landscaping, oiling or
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30
paving.
31
Toxic or Noxious Matter - Toxic matter is defined as any solid,
liquid, or gaseous matter "containing properties which by chemical means
are: (a) Inherently harmful and likely to destroy life or impair health,
or (b) Capable of causing injury to the well-being of persons or damage
32
to property." Generally, the zoning ordinance restricts itself to a
broad prohibition of "the discharge of toxic matter across lot lines in
such concentrations as to be detrimental to or endanger the public health,
safety, comfort, or welfare, or cause injury or damage to property or
33
business."
M. Salzenstein's proposed zoning ordinance for Auburn, New York, is
more precise, incorporating the state ambient air quality standards and
providing that, where toxic materials are not listed in the state's air
quality standards, "the release of such materials shall be in accordance
with the fractional quantities permitted below, of those toxic materials
currently listed in the Threshold Limit Value adopted by the American
34
Conference of Governmental Industrial Hygienists." Threshold limit
values are the maximum allowable concentrations of toxic materials for
industrial workers inside industrial plants. The maximum is set at 1/30
of the threshold limit value across lot lines in the M-l district, and at
1/30 of the threshold limit value beyond the district boundary line in
the M-2 district.
Sulfur Oxides - Zoning ordinances do not include sulfur oxides
among the contaminants regulated. An exception again is the proposed
Auburn ordinance which sets maximum limits on the emission of sulfur
oxides in terms of pounds per hour per acre of lot area, .05 pounds per
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hour from all stacks per acre of lot area in the M-l district, and 1.5
35
pounds per hour in the M-2 district.
The Limitations of Performance Standards Zoning
The general consensus among writers who have considered the problem
appears to be that if environmental control is desired, it is better
accomplished through comprehensive codes covering the particular nuisance
involved: "The manner of controlling air pollution is not inherently or
essentially a zoning problem. It is, rather a regulatory problem which
36
can best and only be met in a comprehensive regulatory ordinance." A
report issued by the National Association of Counties Research Foundation
reaches a similar conclusion: "Zoning laws should be an adjunct to air
pollution control. They are too flixible a vehicle to be utilized as the
basic method of control. Emission standards and other air pollution con-
37
trol standards belong to regulations relating to the specific subject."
Performance standards were intended primarily as a zoning device
(hence the term "performance zoning") and not as an air quality main-
tenance tool. From this fact follow some of the basic inadequacies of
zoning performance standards in air pollution control.
First, as most zoning ordinances incorporating performance standards
were enacted before the recent surge in concern with air pollution, the
emission standards contained in them are usually limited to particulates
and toxic matter when, in fact, carbon monoxide, sulfur oxides, oxides
of nitrogen, and hydrocarbons may be equally harmful to the health of
surrounding households. More recent ordinances have included sulfur
oxides (e.g. the proposed ordinance for Auburn, New York) but it is
probably unreasonable to expect a zoning ordinance to lay down compre-
hensive controls for all harmful or potentially harmful air contaminants.
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-------
Second, the significant consideration in performance standards
zoning has been the desire to prevent injurious effects from adjacent
land uses, especially to protect residential districts from neighboring
industries. The standards as they refer to emission rates have seldom
been based on predetermined objectives of desirable ambient air quality.
Among the specific purposes for the establishment of manufacturing dis-
tricts enumerated in the New York City zoning ordinance one does not
find any reference to the enhancement of ambient air quality, but one
does find the desire "to protect adjacent residential and commercial
areas, and to protect the labor force in other establishments engaged in
38
less offensive types of manufacturing and related activities."
Since zoning performance standards focus on the pollution source
and gauge their controls to the ability of the industry to comply, the
39
nuisance or environmental effect is not necessarily resolved. In-
deed, the ambient air quality can be seriously threatened by the cumula-
tive emissions of many industrial sources, although each individual
source meets the emission standard. In this sense it can be said that
performance zoning has too localized a perspective to deal effectively
with the broad problem of air pollution, which transcends district boun-
daries .
Third, performance standards for industrial zoning do not usually
apply to all air polluters. There are many non-industrial sources of
air pollution (particularly "line" sources such as automobiles) which
are not regulated by the zoning ordinance. Also, zoning ordinances
cover only new uses and do not, except under special circumstances,
eliminate previously existing sources of nuisance problems. With
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regard to a lawfully established existing use the ordinance usually states
only that such use shall not be "so altered or modified as to conflict
40
with, or further conflict with" the applicable performance standards.
Hence zoning performance standards cannot substitute for a comprehensive
abatement program.
Fourth, performance zoning is administered by planners and it is
doubtful whether planning or zoning agencies have the knowledge and
experience to zone on an air pollution basis. For example, of critical
importance in establishing zones as they apply to air pollution are such
meteorological factors as prevailing wind speed and direction, turbulence,
the prevalence of temperature inversions, precipitation, hours of sun-
shine, as well as all the various local surface features which can affect
the micro-climate and the atmospheric dilution capacity. Yet, performance
standards in the zoning ordinance were set without taking into account
meterological conditions with the result that the actual air pollution
41
impact may vary from plant to plant. As one report has pithily remarked,
"... air pollution control specialists [are] needed to cope with . . .
42
air pollution control . . ."
Fifth, it may be that zoning laws are too pliable to be an effective
means of air pollution control. Economic and political pressures have
long led to abuses of the variance-special exception procedures. Zoning
performance standards in particular are distinguished by their non-enforce-
43
ment. A comprehensive air pollution code not only gives added and
necessary prominence to the air pollution problem, but is also presumably
less vulnerable to abuse. The New York City Air Pollution Control Code,
for example, allows the administrator to grant a variance for "unreasonable
hardship" for up to six months only upon condition that the recipient
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make "such periodic progress reports as the administrator shall specify."
Extensions may be granted for periods up to six months only if "satisfac-
44
tory progress" has been shown.
The Zoning Ordinance and the Air Pollution Control Code
Once a governmental unit has enacted a comprehensive emission code
and enforcement program, zoning performance standards relating to stationary
emission sources need to be made compatible or else deleted from the or-
dinance. Under the 1967 Clean Air Act passed by the State of Washington,
performance standards are superseded by the rules and standards promul-
gated by county, multi-county, or regional air pollution control author-
45
ities, unless the zoning performance standards are more stringent. The
applicable statutory language provides as follows:
"The rules and regulations. . . adopted by an [air pollution]
authority under the provisions of this chapter shall supersede
the existing rules, regulations and ordinances of any of the
component bodies included within said authority in all matters
relating to the control and enforcement of air pollution as
contemplated by this chapter: . . . Provided further, That
nothing herein shall be construed ... to affect . . . per-
formance standards incorporated in zoning ordinances or resolu-
tions of the component bodies where such standards relating to
air pollution control or air quality containing [sic] require-
ments not less stringent than those of the authority, [i.e.
air pollution control agency]."
Zoning ordinances themselves may explicitly delegate responsi-
bilities in the field of air pollution to the local air pollution con-
trol agency. Marion County, Indiana's (Indianapolis area) industrial
6-17
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zoning ordinance, does not specify performance standards but states
simply that "The emission of smoke, particulate matter, or noxious or
toxic gases shall conform to the standards and regulations of the Air
Pollution Control Ordinance of the City of Indianapolis, Indiana (a copy
of which is on file in the office of the Metropolitan Planning Department
of Marion County, Indiana, and which standards and regulations are hereby
46
incorporated by reference and made a part hereof)." New York City's
zoning ordinance does specify performance standards but it also declares,
"In case of any conflict between the performance standards [and] the
47
rules and regulations adopted by the Board of Air Pollution Control,
48
the more restrictive shall apply."
At three points the New York City ordinance also provides for
intervention in the zoning process by the air pollution authority. The
section on smoke emission limitations reads, "The method of measurement,
additional limitations on the emission of smoke of a density not ex-
ceeding Standard Smoke Chart number 2, and the maximum permitted density
and quantity of smoke during special operations such as ... soot blow-
ing, or process purging, shall be determined in accordance with rules
49
and regulations adopted by the Board of Air Pollution Control." The
section requiring certain procedures in order to minimize wind-blown
air pollution also adds, "or any other means as specified in rules and
50
regulations adopted by the Board of Air Pollution Control." Most
significant, perhaps, for toxic or noxious matter the ordinance itself
includes only a general prohibition against emissions that result in
concentrations that endanger the public health or welfare, but precedes
this with the statement that in all manufacturing districts, "the emission
of toxic or noxious matter into the atmosphere shall be in accordance with
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51
limits established by the Board of Air Pollution Control."
New York City has both performance zoning (1961 zoning ordinance)
and an air pollution code enacted in 1964 and amended in 1971. The
air pollution code contains a broad definition of "air contaminant" which
is designed to ensure coverage of unknown as well as known pollutants:
"Air contaminant means any particulate matter or any gas or any com-
52
bination thereof in the open air, other than uncombined water or air."
An all-embracing clause prohibits any person from causing or permitting
the emission of air contaminant which, by itself or in reaction with
other air contaminants or solar energy, "causes or may cause" detriment
to health and comfort or injury to plant and animal life or property or
53
business. Specific emission standards, applying to all sources, are
set down for cadmium, beryllium, mercury, and asbestos, while emission
standards applying only to particular sorts of equipment (such as boilers
and refuse and fuel burning equipment) are set down for other named
54
pollutants (sulfur compounds, particulate matter, and nitrogen oxides).
An interesting approach in the emission standards article of the
air pollution code is the use of "environmental ratings" to determine
permissible emission rates for particulate matter from "processes, and
55
exhaust and ventilation systems." The latter are rated on a descending
scale from A to D on the basis of the adverse effects of their contami-
nant discharges, A is for systems producing the most serious adverse
effects on receptors or the environment, D for those whose discharges
are relatively innocuous. Each equipment operator is required to propose
an environmental rating for himself which is to be based on emission data
and "pertinent environmental factors." The administrator is free to reject
and replace the proposed environmental rating with his own if the proposed
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rating is found unacceptable. Among the environmental factors on which
information must be submitted it is worth noting the following
"(b) physical surroundings of emission sources. . .:
(d) dispersion characteristics at or near source; (e) location
of emission source relative to ground level and surrounding
buildings, hills, and other features of the terrain; (f) current
56
or anticipated ambient air quality in vicinity of source. ..."
The above provisions regulate emissions from stationary sources.
The prevention program of the ordinance works through a system of in-
stallation permits and operating certificates, as well as fuel standards
and operator licensing provisions which need not concern us here. A
57
permit is required for the installation or alteration of "equipment,"
defined expansively as "any device capable of causing the emission of
an air contaminant into the open air, or any stack, conduit, flue, duct,
58
vent or similar device connected to or serving such device." Equip-
ment which is subject to the permit requirement for installation or al-
teration must still be granted an operating certificate before it can be
59
put into operation. Fuel burning and refuse burning equipment and
"equipment used in a manufacturing process" must also receive an
60
operating certificate.
In order for the applicant to obtain a permit for installation under
the air pollution code he must show "to the satisfaction of the adminis-
trator" that his equipment meets some generally phrased performance
standards, the first two of which require that: "(1) The equipment is
designed and will be installed or altered to operate without causing a
violation of the provisions of this code; and (2) The equipment incor-
porates advances in the art of air pollution control developed for the
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61
kind and amount of air contaminant emitted by the applicant's equipment. . ."
While the emission standards of New York City's Air Pollution Control
Code are indisputably more comprehensive than those in the zoning ordinance
and thus better suited for air pollution abatement, the air pollution code
is not as effective as a preventive tool. This is because the code does
not allow the air pollution agency to enter the picture early enough to
review and veto proposed industrial construction from the very start. In-
stead, the agency is restricted to the clumsy and indirect method of
threatening to withhold the installation permit for the equipment. Although
"installation" is defined as the "placement, assemblage or construction
of equipment. . . at the premises where the equipment will be used, and
62
includes all preparatory work at such premises," in practice considerable
work on the project can be accomplished before an application has to be made for
the equipment installation permit. By that time, confronted with the sums
already invested in plant construction, the air pollution authority is
63
hard put to deny the permit.
Reconciling Performance Standards with the Air Pollution Code
It is self-evident that a separate air pollution ordinance will always
be necessary, if only to cope with those sources (the no*)-industrial or
the non-stationary or the already established) of pollution that are not
covered by performance zoning. But it is still not clear whether air
pollution control should be entirely deleted from the zoning ordinance
and be made the exclusive province of the pollution code. Each has
failings, but these failings are not necessarily ones which cannot be
cured by proper drafting.
Performance standards, we have seen, deal almost solely with indus-
try. But there is no intrinsic reason why performance standards zoning
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cannot be extended to provide across-the-board coverage of residential
and commercial uses, as has indeed been done in some ordinances. This
would go a long way toward reducing both neighborhood and area-wide pol-
lution, for factories are not the only polluters.
Zoning ordinances, we have seen, deal only with particulate matter,
smoke, and toxic matter. Again, there seems to be no intrinsic reason
why this coverage cannot be expanded to include sulfur oxides and other
maj or air contaminants.
Zoning ordinances generally apply only to new sources of pollution,
but there is no reason why, along with the performance standards, the
zoning ordinance could not include a provision similar to the amorti-
zation provisions more frequently found in zoning ordinances. Such a
provision would set time limits for correcting the non-conforming charac-
teristics of uses. As in other amortization tables, this provision should
be carefully tailored to fit the frictions created by the nonconforming
uses in the districts involved, the problems of making corrections,
the circumstances of the community, and the sophistication of the courts
64
of the state.
Finally, zoning performance standards have as their starting point
source controls that are geared to industry's ability to comply and as in-
tended to protect adjacent districts. But there is no reason why the zoning
ordinance cannot also incorporate predetermined ambient air quality standards
to define the air environment aimed for. Puerto Rico has done this.
On the other hand, emission codes, which are strong on enforcement
and abatement, are weak on prevention. Here, too, there is no real reason
why the air pollution ordinance cannot be redrafted to give the air pollu-
tion agency the authority to screen, and veto if necessary, all new
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industrial construction while the latter is still in the planning stage.
As we have seen, it is paradoxical but true that the air pollution agency
is best able to monitor the installation of incinerators and boilers in
individual plant installations after major development decisions have
been made. At this point, it is difficult for the air pollution agency to
refuse an installation permit. More control over industrial development
could be exercised by air pollution agencies if they were permitted to
review plans for industrial development before major construction is
attempted.
What form the accommodation between the zoning ordinance and the
air pollution code (and the respective institutional bodies) should take
is not immediately evident, but it is clear that there must be some accomo-
dation, other than the bare minimum of compatibility of standards. One
approach is for the air pollution authority to concentrate on obtaining
compliance from existing industries while the zoning agency concentrates
65
on trying to avoid new problems. This division of functions assigns
prevention to the zoning ordinance and enforcement to the air pollution
code. Another approach would delegate responsibilities for prevention
to the air pollution agency. The latter would review all industrial plans
for their "air quality impact", while the zoning agency would still evalu-
ate proposed industrial development on the basis of non-air pollution fac-
tors. Air pollution considerations, as advanced by the air pollution
authorities, would thus form another set of "constraints" (in addition to
the usual constraints such as population growth and transportation net-
work) with which the traditional planning process would have to cope.
Planning agencies would provide that additional intelligence concerning
air pollution potential which they are uniquely in possession of,
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information on commuting habits and trends for example. Something of
this sort of division of functions appears in one suggestion that "over-
lay" zones be established by the pollution agency to screen out uses
undesirable because of their air pollution effects, while zoning bodies
66
continue to locate specific industrial sites within non-restricted areas.
Finally we note parenthetically that even if the emission code becomes
the exclusive means of air pollution control, performance standards could
still have a role in the zoning ordinance when source controls more strin-
gent than those provided in the air pollution code are called for.
Conclusions on Performance Standards
1. Performance standards zoning can be both narrower and broader
than the direct control of air pollution by stationary sources. Perfor-
mance standards do not usually cover all of the stationary sources that
are covered by the air pollution code, and they ma)' not cover all of the
pollutants for which federal standards have been published. At the same
time, performance standards in zoning may cover pollutants and noxious
substances for which federal standards have not been issued.
2. Performance standards appear to be a useful element in state air
quality implementation plans in some circumstances. For example, performance
standards can be used to control air pollution levels in parts of an air
quality control region where national standards are generally met, but
where localized areas of excessive air pollution ("hot spots") still remain.
3. Problems of coordination between performance standard zoning and
air pollution control can be troublesome. One problem is that per-
formance standard zoning is usually enacted and applied by municipalities
and counties, while air pollution control is often the responsibility of
a state or regional agency. Coordination of performance standard zoning
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and air pollution control by means of carefully written state legislation
will be required in most jurisdictions.
SPACING CONTROLS IN ZONING ORDINANCES
It is sometimes argued that to control certain pollutants, sources of
emission should be spread out in order to avoid localized high concentra-
tions (hot spots) of air pollutants. The following section examines the
question of whether the zoning ordinance might be utilized to achieve this
separation. The type of land use examined is the filling station since it
is the source of reactive hydrocarbons that contribute to photochemical
smog, and is the subject of restrictive controls both by the land use
planning agency and, in some cases the air pollution control agency. An
example of the latter is the attempt by the Bay Area Pollution Control
District (San Francisco) in 1972 to impose a ban on the construction of
all new filling stations when it found that oxidant levels had exceeded
67
the air quality standard over most of the air quality control region.
The analysis concludes that the typical zoning regulations adopted by most
municipalities are not sufficient to regulate the location of gasoline
filling stations when air pollution control is the dominant purpose behind
such regulation.
Two zoning problems relating to filling station construction are
of interest. The first is the case law relating to the location of filling
stations. The principal point to be made here is that the cases are
presently ambivalent about the location of filling stations in relation to
other uses. In particular, the presence of other filling stations in proxi-
mity to the filling station whose application is under consideration is
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sometimes favorable and sometimes unfavorable to a decision concerning
the new location. The cases reflect this ambivalence even though the
over-concentration of filling stations at any one point in the urban
environment may have harmful effects on the quality of the air in the
vicinity of those stations.
Another type of control to be discussed here permits the municipality
to regulate the location of filling stations in relation to churches, schools,
and other places of public assembly. Local regulation of this problem
usually prevents the location of filling stations within a stated distance
of such public and semi-public places of assembly, on the ground that
filling stations are hazardous uses and should not be located in proximity
to large numbers of people. A zoning restriction of this type is too crude
to be applied with any degree of success to the air pollution problem.
However, it does provide a precedent for regulation of filling stations
which would limit their location due to the health consequences of pollu-
tants which filling stations discharge into the air.
How a spacing requirement can also have the effect of a total ban
on all filling stations in a municipality is also illustrated by Buck v.
68
Kilgore, a recent Maine case. This case briefly deserves notice here
in order to point out that even marginally restrictive regulations of
filling stations may have an almost prohibitory effect due to the nature
of the area in which they are applied. In the Maine case an ordinance pro-
hibiting all filling stations within 2000 feet of places of public assembly
had the effect of banning all filling stations in South Portland, the city
which enacted the restriction. While commenting on this impact of the
ordinance, the court did not consider it decisive. Instead, it held the
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ordinance unconstitutional on the ground that fire hazards from filling
stations were not demonstrably greater than those from other businesses.
As a result, there was no basis for establishing a relationship between
the storage of gasoline in filling stations and the prevention of fire in
places of public assembly.
Zoning Controls over the Location of Filling Stations
Zoning controls over filling stations have often been based on the
hazards thought to be associated with such facilities, but filling station
hazards have often been taken for granted. This approach may have been
proper when early forms of this use presented obvious dangers, or when
the efficiency of precautionary measures had not been tested, proven, or
subject to study for a significant period of time.
69
As pointed out in a recent report:
Use of improved equipment in transporting, storing, and pumping
gasoline has all but eliminated these hazards, [fire and explosion],
as illustrated by a comparison of the standard insurance rates for
selected activities in Ohio.
TYPE OF USE ANNUAL RATE PER $100
Single-family $0.12
Doctor's office $0.42
Restaurant $1.047
Automobile salesroom $1.515
Filling station $0.35
Other studies show fewer fires in service stations than in other commer-
cial facilities. The relative incidence of fires at restaurants is stated
to be three times that of a service station, and the service station is
purported to have a propensity to catch fire equal to that of a local food
70
store.
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Some courts recognize inherent unpleasantnesses. A New Jersey
80
court, in Vine v. Board of Adjustment, held that it was reasonable
for a city to zone gasoline stations out of residential districts because
of their peculiarly obnoxious fumes. The Supreme Judicial Court of
81
Massachusetts held in Kidder v. City Council of Brockton that consider-
ing whether a service station would be harmful to the public welfare did
not limit the city solely to the consideration of risk of fire. Other
factors relating to the public interest were also relevant, such as
traffic, noise and odors. In fact, many courts allow control on the basis
of traffic alone.
Problems arise when several filling stations have already been con-
structed in an area in which an application for yet another filling station
71
is filed. Some cases, like the North Carolina case of Horden v. Raleigh
have held that the fact that service stations had been allowed in the area
in the past was not controlling on whether to allow another. But courts
face a real dilemma in this situation. Since zoning decisions tend to be
based on the character of already existing uses in the surrounding area,
the presence of other filling stations may simply lead to further approvals.
Eventually there may simply be too many filling stations within the district
anu excessive congestion and pollution may be the result.
Similarly, the Supreme Judicial Court of Massachusetts in Kidder v.
72
City Council of Brockton affirmed a denial of a service station permit
even though the district was zoned to allow stations. The Court pointed
out, however, that the intersection in question was busy, other stations
were at the intersection, and another would add to traffic congestion
and thus endanger school children.
This partial review of the legal basis for zoning gasoline filling
-------
stations suggests that the rationale behind the zoning of filling stations
may be changing. If supposed ground hazards allegedly traceable to filling
stations do not really exist, the basis for municipal control over these
stations by means of the zoning ordinance may be weakened. Exclusion of
filling stations from residential areas may still be supportable in most
instances, but controlling their location in industrial and even in
commercial areas may be more difficult to accomplish. Even when an over-
concentration of filling stations leads to traffic congestion and other
undesirable effects, the municipality may be powerless to prevent the
construction of another. The municipality will especially be restricted
if the court takes the view that the area is already committed to filling
station use, so that the addition of yet another filling station is only
marginal. The courts in zoning cases are very sensitive to the way in
which an area of the municipality has previously developed. A considerable
reorientation in zoning law thus appears to be necessary before presently
existing zoning controls over filling stations can be a useful method of
implementing air quality programs, especially in areas of the city in which
a substantial amount of commercial and related filling station development
has already occurred.
Spacing Controls Over Filling Stations
Air quality control programs have been particularly sensitive to the
interaction between air pollution sources and sensitive uses which may
be affected by the pollution generated by these sources. Zoning regulations
requiring the spacing of filling stations from places of public assembly
such as churches appear initially to make sense, therefore, as an air pol-
lution control strategy. The basis of these regulations is not grounded
on air quality factors, and the spacing formulas adopted may not incorporate
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standards considered necessary from the point of view of air quality con-
trol. Nevertheless, these ordinances do provide some judicial precedent
favorable to the use of zoning regulations to implement air quality ob-
jectives.
The basis for spacing ordinances has often been the risk of explo-
sion and fire, a risk which should not be taken in cases where a major
catastrophe might result. Courts have also considered the increased
danger to large numbers of pedestrians, especially to children when a
school is involved. They have also considered the effect upon traffic
when service stations are located where large numbers of automobiles
are likely to converge at once, and the effect of noise and fumes upon
religious services, classes and the like. The hazards associated with
the service stations are particularly influential upon a determination of
constitutionality when a public assembly ordinance is invoked.
Hazards, despite their severity, may not justify unreasonable spacing.
The prescribed distance within which stations cannot be constructed must
be reasonably related to the increased danger associated with public assembly
uses. Dangers presented to young pedestrians, possible disruption of ser-
vices or classes, fire, explosion and traffic hazards upheld a Kentucky
zoning ordinance barring service stations from within 100 feet of churches
73
or schools in Cayce v. Hopkinsville. Similar dangers were justification
74
for a 200-foot ordinance in Suburban Tire and Battery Co. v. Mamoraneck,
_ 75
and for a 300-foot spacing in Kramer v. Mayor and City Council of Baltimore.
"It is readily conceivable," the Court said in Kramer, "that the establishment
of filling stations in proximity to institutions where large numbers of per-
sons assemble may materially intensify traffic and fire dangers which in
other sections might be attributable to such stations only to a negligible
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76
degree."
Spacing ordinances have also been upheld when they require that
filling stations be kept a specified distance from residences and apart-
77
ment houses. Thus the ordinance in Radick v. Zoning Board of Review
prohibited service stations within 100 feet of apartment districts or
dwelling houses. The Supreme Court of Rhode Island gave the ordinance
a practical interpretation. It held that the word "district" in the zoning
ordinance did not refer to the actual zoning classification but to the
actual use. Thus service stations within 100 feet of a zoning district
zoned for apartments would be allowed, but filling stations within 100
feet of an actual residence or apartment would be prohibited.
Ordinances which prescribe a reasonable distance from recognized
places of public assembly within which filling stations are prohibited
are generally acceptable. We have noted above, however, that the validity
of the assumption that hazards such as fire, explosion, danger to pedestrians
and undesirable traffic patterns accompany service stations has been under
recent attack. Therefore, while some courts uphold distance regulations
on the basis that gasoline stations create a hazard to the public health,
welfare and safety, other courts have found that no such danger exists,
at least in certain situations. They have therefore struck down the appli-
cation of gasoline spacing ordinances in certain fact situations. The
difference between the philosophies of the two groups of courts is that
while the group upholding spacing regulations considers gasoline stations
to be dangerous per se, the other group sees nothing inherently dangerous
in regard to gasoline stations, and looks for other factors upon which to
base a particular decision.
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Effectiveness of Local Controls
This review of zoning regulations for filling stations suggests that
the law of zoning as it has developed so far is not directly applicable
to programs of air quality control which seek to place limitations on
pollutants from gasoline filling station sources. Zoning regulations
governing the location of filling stations are often responsive to the
existing development in the area of a new filling station site. For this
reason they may not place effective limits on the construction of new
stations in areas where there is already an overconcentration of filling
station uses. Spacing requirements prohibiting the location of filling
stations near to churches and other places of public assembly may have some
application in air pollution control programs. But spacing requirements
may be arbitrary and not properly related to the proper control of air
pollution hazards created by filling station uses.
It would appear, therefore, that controls over filling station loca-
tions that are implemented as part of an air pollution control strategy
may have to be based on more general health and safety factors not related
to zoning regulations. Air pollution controls regulating filling station
locations would then have to be based on the health dangers which would
otherwise occur if the release of pollutants from filling stations were
not controlled. There would be no difficulty in upholding the constitution-
ality of such regulations if the linkages between health hazards and filling
station locations could be shown. Presumably, filling station controls
imposed under the air quality regulations can be made to pre-empt any local
zoning ordinance to the contrary. The impact of such pre-emption on local
zoning regulation may still be quite disturbing, and the issue may need
more careful attention than what has been given to it previously.
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Another issue to be raised relates to the priority to be given to
filling station controls as compared to other types of air pollution
regulations, such as improvements in technology and the control of
other pollution sources. Developing a comprehensive air pollution
control strategy with control over the regulation of filling stations as
one of its elements may thus require regulatory systems at the metro-
politan level so as to take the entire air quality region into account.
Controls based on the air quality region could therefore avoid some of
the localized factors that have influenced many court decisions on
the regulation of filling stations at the local level.
THE DESIGN OF URBAN STRUCTURES
A review of architectural literature reveals that project design
criteria often do not include the project's impact on air quality. En-
vironmental design has come to signify an aesthetic blending with the
surrounding area, rather than an empirical consideration of the effects
of the project on environmental quality. One of the main goals of archi-
tecture is to provide people with a comfortable environment. However,
many of the technical problems have become entirely the province of special-
ist engineers who often consider only one quantity, for example, air tem-
perature in heating and air conditioning, lumens in lighting, and neglect
78
the impact these considerations have on the total environment. But, in
theory, the role of architecture has evolved to a point to integrate air
quality considerations into design of buildings. According to E. Cermach
and F. Chaudhry,
"Architecture has evolved from the art and science
of designing and constructing buildings with
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primary reference to beauty and function of form
into a complex to control the environment
of a building system. This control is a part of
the total design of a building system which
attempts to establish and maintain an optimal
environment for the well-being and constructive
participation by the occupants. One of the most
important elements of control is the concern about
the quality of air supplied to closed spaces and
the quality of air exhausted from such spaces.
The quality of air depends on the characteristics
of air flow around the building structures, which,
in turn, are controlled by the meteorological
conditions, the distinctive shapes and distributions
of structures, and the distribution of air pollution
79
sources."
An important consideration for the architect concerned with
designing an optimal environment is the indoor/outdoor pollutant con-
centration levels. Although the data available on indoor/outdoor con-
centration ratios lack substantiation and comprehensiveness, it is pos-
sible to make a few generalizations. It generally appears that indoor
concentrations of gaseous pollutants are lower than outdoor concentrations
in non-industrial structures. There are exceptions to this, however, and
more often than not it is best to assume that indoor concentrations of air
pollutants are equal to or slightly less than outdoor concentrations. At
best, unless outdoor concentrations are exceptionally high, there is usually
less than a 50% difference between them. And in some instances, indoor
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concentrations have registered higher than those outdoors when the
80
latter are fairly low.
Three sets of factors determine the relative concentrations
affecting building occupants:
1) those influencing the outdoor concentrations about the
building;
2) those influencing the exchange of outdoor and indoor air;
3) the amounts and types of pollutants generated within the
81
building.
One goal of design solutions should be to improve the indoor con-
centration levels since this is where people spend most of their time,
especially those most sensitive to air pollution: the young, the sick
and the elderly. This does not mean that people would be sealed up in
what are in essence controlled containers. The primary vehicle for im-
proving indoor concentrations should be improving outdoor concentrations.
Thus, the following examines the impact of present design strategies on
air pollution generation and the effect design strategies can have in pro-
tecting receptors and dispensing pollutants.
Current Building Design
Architectural design of buildings is related to the generation of
air pollution by the use of features which increase energy demands, such
as sealed windows, air conditioning systems, central heating systems, the
exhaust systems from central cooling and heating units, and the amount of
lighting required to meet lighting standards. Electricity is the principal
energy source.
Production of electricity and its projected increase in use during
the next fifteen years is significant in terms of air pollution generation.
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The use of fossil fuels in generating electricity supplied approximately
83 per cent of the electric utilities energy requirements in 1970.
Although it is predicted that fossil fuels will supply 45.2 per cent of
the total electric utility energy requirements by 1985, with hydroelectric
and nuclear fuels providing 7 and 39 per cent respectively, it has been
estimated that fossil fuel requirements will nevertheless increase 46
82
per cent between 1970 and 1985. The significance of these statistics
lies in the fact that although fossil fuels will supply a lesser percen-
tage of total energy supplied by 1985, barring severe energy conservation
measures, there will still be an increase in the use of fossil fuel powered
generators and consequently an increase in air pollution.
Inevitably, trade-offs occur between the use of air conditioning and
increased energy demands, usually in favor of air conditioning. It is
sometimes argued that sealed windows are designed to protect the occupants
of a building from air pollution, in a controlled environment cooled by air
conditioning. However, most air conditioning systems merely alter the
temperature of the air and do not enhance air quality because the present
systems utilize inadequately filtered outdoor air.
A study done in Boston indicated that ozone concentrations were not
generally affected by air conditioning and that sulfur dioxide concentra-
tions were not affected unless air conditioning systems included water
83
sprays on the cooling coils. A study done in Hartford indicated that
carbon monoxide levels inside of an office building were exactly the
same as those outside, and that this infiltration was facilitated by air
84
conditioning. Nitric oxide and light hydrocarbons are also difficult
to remove.
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Particulate concentrations may be reduced slightly by the roughing
filters commonly used in air conditioners, but more efficient filters must
be used to obtain significant reductions. Pollen is the only pollutant
that is eliminated by air conditioning. Although they are not generally
employed in air conditioning systems currently in use, air filtration and
purification devices that could significantly reduce indoor concentrations
85
of most pollutants are available but are relatively expensive. A study
of the electric air conditioning in New York State offers an alternative
for reducing energy demands. It showed that large buildings requiring
central air conditioning can be cooled more efficiently with gas air con-
86
ditioning than with electric air conditioning.
Exaggerated lighting standards also create an unnecessary demand
for energy. Approximately one fourth of all electric power goes into
electric lighting. In new office buildings, which are built to meet the
most recent minimum lighting standards promulgated by the lighting industry,
lighting accounts for 50 to 60 per cent of the total power requirements.
Successive increases in the standards have provided the user with only
marginal increases in visibility for a steadily increasing cost, since
87
every footcandle sells more lamps and more electric power.
Another trend in urban design is to put parking underground in cities,
to build multi-level parking garages and use available air rights over
roadways for buildings. The exhaust from the concentration of automobiles
within parking garages creates important air pollutant sources that wm
increase concentrations both outside and inside of surrounding buildings.
The construction of buildings over roadways also increases the risk of
118
exposure to higher concentration levels within the structure.
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The Effects of Building Design on Air Pollution Dispersal
The air quality outside of a building is the most important
determinant of the air quality inside the building. The level of
pollution at any point among the buildings of a city is the sum of three
contributing factors:
1) background concentrations --background air
pollutant concentrations are generated by
sources outside of the city itself and carried
by the wind into the city;
2) overall urban pollution--is the air pollution
generated within the city itself, which
influences the air quality of the entire city;
and
3) local sources--a local source is one in which
the scale of the diffusing plume has riot
grown large with respect to the size of the
roughness elements (e.g., building height
and shape) about which it is flowing. Local
sources mainly influence the area immediately
surrounding it. For a local source, the bulk
transport and diffusion of its effluents are
dominated by properties of the aerodynamics
of the flow around nearby buildings or other
89
obstacles.
Presently, the most effective way to determine how pollutants are
dispersed around buildings is to study the air flow around a scale
model in a wind tunnel. Wind tunnel studies can be useful in examining
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a building complex where the turbulence field is dominated by building
configuration and the effect of atmospheric stability is negligible.
Equations have been developed to predict pollutant concentration fields
around the surface of buildings as well as downwind from sources both
internal and external to the buildings.
The general equation used to express the distribution of gas con-
90
centration in the flow field around a building is:
C = KQ/AV
Where:
C = Concentration
Q = Gas Release Rate
A = Maximum Frontal Projected Area of the Building
V = Wind Speed at Roof Level
K = Non-Dimensional Coefficient that is a Function of
Space Coordinates
An example of a wind tunnel study and its usefulness in predicting
concentrations around buildings, indoor concentrations, and the impact
of receptors is provided by the air pollution control study made of the
91
proposed Children's Hospital National Medical Center in Washington, D. C.
The study was made to consider the dispersion of exhausts from underground
parking garages and the hospital's contagious diseases laboratory. The
model of the Children's Hospital consisted of the proposed building, the
neighboring structures of the National Medical Center, the topography of
the surrounding terrain and an appropriate representation of the city block
extending about a mile upwind from the hospital. Eighty pollutant tracer
sampling taps 1/8" in diameter were placed at the proposed air conditioning
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intakes of the model.
The data revealed that underground parking area exhausts caused
maximum concentrations at the north and southwest intakes, and the
contagious diseases laboratory exhaust gives highest concentration at
the intakes around the northeast corner. The usefulness of this infor-
mation is that it identifies the critical locations of high potential
pollutant concentrations. Based on this study, the use of non-operating
windows on the north side at the critical points or relocation of some of
92
the garage exhaust ports were recommended.
Patterns of concentration within the building cavities derived in
full-scale studies with tracer techniques have been reported to compare
93
closely with those predicted by wind modeling. However, at greater
distances downwind and on larger scales, the current wind tunnel modeling
technique has limitations which render it inadequate for evaluating dif-
fusion under the complete range of atmospheric conditions required. Con-
ditions such as the turning of wind with height and thermally driven cir-
94
culation cannot be reproduced in wind tunnels at the present time.
Wind tunnel tests have also shown that architectural shapes can have
95
large effects on the climatology of structures. Eric Kahn demonstrated
the effects of building mass, height, depth and length upon the size and
shape of a downwind eddy, finding that the eddy, a low pressure area, is
key to micro-climatology. The larger the eddy, the lower the volume of
air flowing around a building and the smaller the eddy the higher the
volume of air moving around a building. In cold climates, building shapes
and orientations that maximize eddy areas offer the greatest protection from
the wind, while in hot climates, configurations that give the smallest
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eddy area allow a maximum of cooling air to flow around and through the
structures. Larger low-pressure areas could result in air stagnation
and the build up of air pollutants while smaller eddy areas would be
more conducive to the dispersion of pollutants. It was found that height
considerably increases eddy area and that many minor variations such as
the direction and pitch of roofs, resulted in very large changes in air
96
flow.
Winds are influenced by a building's size and shape, the geometry
of streets and the local topography. Higher winds at the base of a
building are caused principally by the building's height and bulk. These
winds maintain more suspended dirt in the air than would be aloft around
lower and smaller buildings, but they also have the opposite effects of
97
augmenting vertical mixing and dispersing air pollutants faster. The
wind speed at the base of a tall building is the product of two flow fields:
1) The first is caused by the pressure distribution on
the windward face of the building which relates to
the local wind pressures and increases with height.
(Wind pressure increase with height is due to the
frictional drag effect of the ground and other ob-
stacles along the ground surface, like low buildings).
This pressure induces a vertical flow down to the
face of the building from the stagnation point. Upon
reaching the ground, the air flows into a vortex,
causing high winds.
2) The second type of flow is caused by the pressure
difference between the low pressures leeward and
adjacent side faces and the high pressure base of
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the windward side of the building. Flow between
these areas around corners can cause very high
local winds. T*he low wake pressure is dependent
on the wind velocity at the top of the building,
and the taller the building, the greater the velo-
city at the top. Therefore, the taller the building,
the lower the wake pressure and the higher the
velocities induced.
Full scale studies are the alternative to wind tunnel models, which
are limited to the small scale. Full scale studies monitor the large-
scale effects of the city on dispersion of pollutants, beyond the effects
of individual building complexes. One Isucge-scale effect is the 'dis-
tortion of the prevailing wind field over the city. Another is the
occasional formation of a shallow mixing layer at night due to the
"heat island phenomenon". The heat island effect can be conducive to
excessive ambient ground-level concentrations of pollutants.
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Siting Controls and Building Codes
Given the present state of knowledge, modifying urban form to
reduce the impact of air pollution concentrations probably should be
considered a matter of secondary priority simply because we are not sure
what the large scale effects are, and do not know whether the costs of
such modifications would be worth the effort. Clearly, more research
is needed on this topic. One can, however, make recommendations on
siting controls and revisions in building codes.
Most of the recommendations refer to energy use, which is related
to the generation of air pollutants. For example, the siting of new
office buildings rarely takes direction into account. Although critics
often attack buildings on esthetic grounds, architects are now finding
that it may be economical as well as esthetically desirable to orient a
building away from the sun or to use different materials on the sunny
south side than on the north.
It is asserted that with different design, materials and mechanical
systems, office buildings could be constructed to use 75 per cent less
101
energy than they do now. Building codes, which are concerned primarily
with assuring the safety and structural soundness of buildings, can be
rewritten to enforce limited energy consumption. Such a project is cur-
rently being undertaken by the National Bureau of Standards in Washington,
D.C., which is preparing a model energy conserving building code. Among
the items to be considered for such a code would be requirements that
buildings contain minimum levels of insulation or meet "energy budget"
limitations worked out using a formula that would take into account a
building's size, use, location, and materials. Buildings that would exceed
their assigned energy budget would be forced to pay a penalty.
6-43
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NOTES
1. § lll(aXl).
2. O'Harrow, Performance Standards in Industrial Zoning, 1951
Planning 42.
3. Gillespie, Industrial Zoning and Beyond: Compatibility Through Per-
formance Standards, 46 J. Urban L. 723, 741-742 -(1964), hereinafter
cited as Gillespie.
4. New York City Zoning Resolution § 41-11 (1961),
5. Id. § 41-13.
6. (1) noise (2) smoke (3) odor (4) dust and dirt (5) noxious gases
(6) glare and heat (7) fire (8) industrial wastes (9) transporta-
tion and traffic (10) aesthetics (11) psychological effects.
7. Adding (1) vibration, (2) electromagnetic interference, (3) radio-
active emissions. American Society of Planning Officials (ASPO),
Planning Advisory Service, Information Report No. 78 (Sept. 1955).
8. Marion County, Ind. Dwelling Districts Zoning Ordinance (1968), and
Commercial Zoning Ordinance (legal draft, 1969).
9. Salzenstein, Industrial Performance Standards, Planning Advisory
Service, Report No. 272 (1971), hereinafter cited as Salzenstein.
10. Proposed Comprehensive Amendment to the Chicago Zoning Ordinance,
§ 10.3 (1955).
11. New York City Zoning Resolution, § 42-00 (1961).
12. Salzenstein 8.
13. New York City Zoning Resolution, § 41-00 (1961).
14. Id. § 42-231.
15. Id. § 42-232.
16. Salzenstein, Appendix B, "Proposed Industrial Performance Standards,
Auburn, New York,"
17. New York City Zoning Resolution § 42-232 (1961).
18. Id. § 42-234.
6-44
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19. Salzenstein 21.
20. Id. 22.
21. New York City Zoning Resolution § 42-231 (1961).
22. Id. § 42-233.
23. Id. § 42-233.
24. Proposed Comprehensive Amendment to the Chicago Zoning Ordinance
§ 10.7 (1955).
25. Schulze, Performance Standards in Zoning, 10 J. Air Pollution
Control Ass'n 156, 159 (1960).
26. Salzenstein 24. The formula is as follows:
Let Ql, Q2 . . . . Q represent the maximum emission
rates of a pollutantn from all stacks and vents on a zoning
lot. Then the maximum ground level concentration (C) of
the air pollutant anywhere in the area of measurement is given
by the Basic Dispersion Formula, as follows --
n
Ł =
I 0-037.Qi (sic)
0.71 1.29
i = 1
V.d.h k
i i i i
C = maximum acceptable ground level concentration
V.j_= stack gas velocity in feet per second
dj_= internal stack diameter in feet
hj_= stack height above grade in feet
K^= correction factor for distance from stack to area of
measurement
27. Id. 25
28. Id.
29. New York City Zoning Resolution § 42-234 (1961).
30. Proposed Comprehensive Amendment to the Chicago Zoning Ordinance §
10.7 (1955).
31. Some zoning ordinances, Chicago and New York, use "noxious matter"
as synonymous with toxic matter. Others, e.g., Cook County, put it
together with odorous matter. And still others omit the term entirely,
e.g., Audubon, N.Y.
32. New York City Zoning Resolution, § 42-251 (1961).
6-45
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33. Cook County Zoning Ordinance; in Vborhees, "A Guide for
Reducing Air Pollution Through Urban Planning", prepared for the
Office of Air Programs, U.S. Environmental Protection Agency,
Appendix B (Dec. 1971), hereinafter cited as Voorhees.
34. Salzenstein Appendix B.
35. Id. § 24-60.
36. Schulze, supra note 25, at 160.
37. National Association of County Officials Foundation, Air
Pollution Control: Community Action Guide for Public Officials,
Report No. 3 (1966); also, Voorhees; Salzenstein; Schulze,
supra note 25.
38. New York City Zoning Resolution § 41-00(d) (1961).
39. Salzenstein 9.
40. Cook County Zoning Ordinance, in Voorhees Appendix B.
41. Voorhees 22.
42. Breivogel, Air Pollution Potential Advisory Service for Industrial
Zoning Cases, 11 J. Air Pollution Control Ass'n 334 (1961).
43. As candidly conceded by an administrator in the New York City
Planning Commission who said, in a phone interview (July 1972), that
it was not known whether performance standards in the zoning ordinance
could work in air pollution since they had never been enforced.
Apparently the Buildings Dept. is in charge of enforcement.
44. New York City Admin. Code ch. 47 § 1403.2 - 3.11 (Suppl 1971),
hereinafter cited as N.Y.C. Admin. Code.
45. Wash. Rev. Code Ann. § 70.94.230 (Supp. 1971).
46. Marion County, Ind. Industrial Zoning Ordinance § 2.06C (1963) in
Gillespie 747.
47. Presently the Department of Air Resources within the Environmental
Protection Administration.
48. New York City Zoning Resolution § 42.20 (1961).
49. Id. § 42-232.
50. Id. § 42-233(e).
51. Id. § 42-252.
6-46
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52. New York City Admin. Code § 1403.2 - 1.03(c).
53. Id. § 1403.2 - 9.01.
54. Id. article 9: Emission Standards.
55. Id. § 1403.2 - 9.23.
56. Id. Table 1, § 1403.2 - 9.23.
57. Id. § 1403.2 - 5.01.
58. Id. § 1403.2 - 1.03(x).
59. Id. § 1403.2 - 5.05(a).
60. Id. § 1403.2 - 5.05(b).
61. Id. § 1403.2 - 5.11(a).
62. Id. § 1403.2 - 1.03(cc).
63. The author is indebted to Mr. Keegan, Legal Counsel, New York City
Department of Air Resources, for this observation. Phone inter-
view, July 1972.
64. Salzenstein 13.
65. Voorhees 22.
66. Id. 23; also Breivogel, supra note 42.
67. News Release, Bay Area Air Pollution Control District, Oct. 27,
1972. The ban was liften after ten weeks. Marin County Independent
Journal, Jan. 4, 1973, p. 1. Subsequent regulations require vapor
recovery controls on stations.
68. Buck v. Kilgore, me. , 298 A.2d 107 (1972).
69. American Society of Planning Officials, Planning Advisory Service,
Information Rep. No. 140 (1960).
70. Mosher, Proximity Regulation of the Modern Service Station, 17
Syracuse L. Rev. 1,5 (1965).
71. 192 N.C. 395, 135 S.E. 151 (1926).
72. 329 Mass. 288, 107 N.E.2d 774 (1952).
73. 217 Ky. 135, 289 S.W. 223 (1926).
74. 104 N.Y.S.2d 850 (Sup. Ct. 1951), aff'd, 279 App. Div. 1084,
113 N.Y.S.2d 449 (1952), aff'd, 304 N.Y. 971, 110 N.E. 2d
894 (1953).
6-47
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75. 166 Md. 324, 171 Atl. 70 (1934).
76. Id., at 74.
77 • 84 R.I. 472, 125A.2d 105 (1956).
78. Thomas Markus, Climatology and Architecture, 128 Architectural
Review (Dec. 1960), 452.
79. E. Cermach and F. Chaudhry, Urban and Architectural Planning for
Air Pollution Control (June 1972) (prepared for presentation at the
65th Annual Meeting of the Air Pollution Control Associated).
80. Ferris Benson, et al, Indoor-Outdoor Air Pollution Relationships:
A Literature Review (1972) (AP-112), 5-8.
81. R.A. McCormick, Air Pollution in the Locality of Buildings (1971),
522 [Hereafter cited as McCormick].
82. Thomas Browne, Impact of Energy Conservation on Energy Demands (1972),
14.
83. Benson 40-2.
84. Ibid.
85. Ibid.
86. Browne 4.
87. Lighting: The Eyes Have Had It, Environmental Action (October 28, 1972),
13.
88. McCormich 522.
89. McCormick 516.
90. McCormick 517.
91. Cermach and Chaudhry 11.
92. Ibid.
93. McCormick 518.
94. Ibid.
95. Eric Kahn, Air Flow Around Buildings, 107 Architectural Forum
(September 1967), 167.
96. Ibid., 167-8.
97. D. Dornbush § Co., Intensive Commercial and High Rise Development
Impact Study San Francisco, California, V (1972), 14.
6-48
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98. Ibid., 14-5.
99. McCorraick 518.
100. McCorraick 519.
101. New York Times, Dec. 6, 1973, p. 49. Stein concludes that in the
special case of the modern commercial skyscrapers, savings of
about 50 per cent of operating power requirements could be achieved
by proper design (use of windows that open, efficient heating and
air conditioning, reduction in excessive illumination, See: Stein,
Richard, "Architecture and Energy," Paper presented at AAAS Annual
Meeting, Philadelphia, Dec. 29, 1971. Also see: Eric Hirst and
John Moyers, Efficiency of Energy Use in the United States, Science,
March 30, 1973, 1299-1304; G.A. Lincoln, Energy Conservation, Science,
April 13, 1973, 155-162; Charles Berg, Energy Conservation through
Effective Utilization, Science July 13, 1973, 128-138.
6-49
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CHAPTER SEVEN
THE GENERATION OF EMISSIONS*
A GENERAL FRAMEWORK
The development of a particular configuration of land uses and
transportation networks for a metropolitan region has implications beyond
the basic issues of aesthetics and economic efficiency. In particular, the
urban spatial structure of a region will affect the total amount of
air pollutants emitted as veil as the distribution of these emissions
over the defined area. In this chapter, a conceptual framework to
examine the extent and distribution of pollutant emissions will be
developed. This framework will then be fleshed out with a basic set
of generation equations and specific examples. Finally, the problems
associated with the estimation of the emissions will be discussed.
In the following chapter, the dispersion of these pollutants into the
atmosphere will be examined.
Basically, the two variables of primary importance in emission genera-
tion studies are the nature and extent of the different activities
existing within the region and the pollution-generating capacities of
each of the activities. For example, an acre of land located on the
fringe of a metropolitan area might contain a number of residences,
a small shopping center, roads and vacant land. Each of these land
use categories WDuld have a different pollution-generating capacity.
*This chapter was written prior to EPA's publication of the Guidelines
for Air Quality Maintenance Planning and Analyses (12 volumes); volumes
4, 7 and 13 would be particularly relevant to this subject. The intent
of the guidelines is to provide State and local agencies with information
and guidance for the preparation of Air Quality Maintenance Plans required
under 40 CFR 51.
7-1
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Residences emit sulfur oxides and the other pollutants associated with
the heating of interior space but they do so only during winter months
when home heating systems are in use. A shopping center will also
have space heating requirements during the colder period of the year.
Because shopping centers are traffic generators, the contiguous parking
lots will serve as areas from which automobile-related pollutants, par-
ticularly carbon monoxide, hydrocarbons and nitrogen oxides, will be
generated. Vacant land, on the other hand, will emit a small amount of
pollutants. For example, dust blown about from a field is considered
as a pollutant contributing to the level of particulates in the ambient
air.
The first task, then, in estimating emissions from a defined area
is the identification of the kinds of activities which are contained in
that area. This identification process requires both a land use classi-
fication system of use to the urban planner and a system which is amen-
able to producing accurate estimates of pollutants generated. It will
be assumed that the traditional land use classification system employed
by urban planners is suitable as a base for estimating emissions. Thus,
the categories of residential, commercial, institutional and industrial
land uses can form the basic core of a methodology for estimating emissions.
The second task in determining the extent and distribution of emis-
sions from an area is to estimate the intensity of development for the
particular land use category under investigation. An acre containing a
single-family residence, for example, has a different pollution-generating
capacity than a twenty unit apartment complex. Different petrochemical
plants have different amounts of pollutants generated, depending on daily
7-2
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output and differing processes.
The third task in estimating emissions is to determine the amount
of pollutants emitted for the specified intensity of utilization of an
activity and the particular activity type. A twenty unit apartment com-
plex located on one acre will emit a specific amount of sulfur oxides
and other pollutants during the winter heating system. Estimates of the
amounts of these pollutants can be made. In general, it can be said
that:
EM = ACT * EMACT (7.1)
where:
EM: Amount of a pollutant emitted by an
activity, such as a residence, shop-
ping center or industry, in a defined
spatial zone or a particular time period.
ACT: Number of units of the activity in the zone.
EMACT: The amount of emissions per unit of acti-
vity per time period.
Immediately, it must be realized that this basic equation can be
expanded in a number of ways to fit particular needs. Different re-
searchers have examined alternative methods of developing emission es-
1
timates. No attempt can be made here to encompass the entire spectrum
of techniques and methodology for the emissions estimation process;
rather, there will be discussions of the emissions estimation procedures
for different categories of land use and transportation activities.
In particular, industrial, residential, commercial, institutional and
transportation sources will be examined. The problem of estimating the
current emissions from already existing land use and transportation cate-
gories is not the same problem as projecting future emissions from spa-
tial configurations. Thus, before examining techniques for projecting
future emissions, it is inportant to examine current emission inventory
practices.
7-3
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CURRENT EMISSION INVENTORY PROCEDURES
Present emission inventory practice divides stationary emission
sources into two categories, point sources and area sources, and into
two kinds of emissions, space-heating and process. This classification
scheme may be represented by a four-celled table.
Type of Emission
Type
of
Source
Point
Area
A
B
D
Space- Process
heating
Each cell of the chart represents a different problem in information
development. It is usually most convenient to begin by identifying a
reasonable number of individual point sources and determining the emis-
sions to be expected from each of these sources. The most straightforward
way to obtain this information is to request it; however, individuals
responsible for a particular source may not themselves know in detail
the nature of the emissions or they may have reason to distort the ac-
tual figures. Therefore, while point source information is often ob-
tained from individuals responsible for the source, it is sometimes es-
timated on the basis of other data which are easier to obtain, or thought
to be more reliable. For example, fuel-use data are often used as a
basis for estimating emissions resulting from space heating (Cell A).
If the amount of fuel consumed for space heating purposes is known,
and the effectiveness of the emission control devices can be determined,
emissions can be accurately es imated upon the basis of published
7-4
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2
information which relates various fuel types to pollutants generated.
Process emissions from a point source (Cell B) present a more
complex problem. A given process may be characterized by several kinds
of emissions. The amount of fuel required for the process to occur will
indicate the nature and the amount of some portion of the pollutant
emitted, but it is also necessary to determine what other emissions may
result from the process. The usual practice is to determine, through
examination of an individual process, the quantity of each kind of pol-
lutant per unit of processed input or output, and then to determine total
process emissions on the basis of total process input or output. For ex-
ample, the amount of pollutants generated by an incinerator would be
measured in terms of the amount of input, garbage. On the other side,
the amount of pollutants generated by a steel plant would be related to
the amount of output manufactured, tons of steel. Published material
is available for a number of industries which indicates the emissions to
3
be expected from various industrial processes.
In current practice, area sources are those emitters remaining after
the large point sources have been investigated individually. Since their
large numbers and relatively small sizes make the development ol specific
information about each of these area sources an impractical proposition,
procedures have been developed to consider these sources as a whole.
Again, space-heating (Cell C) is the easier case. In residential neigh-
borhoods, most homes have similar heating facilities. At most, two or
three different kinds of fuels will be used within a particular locale.
Fuel-use information, whether the fuel is oil, gas or electricity, is
typically available. This fuel-use data can be translated directly into
7-5
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the amount of pollutants emitted for the particular residential area being
examined. In non-residential areas containing a mixture of commercial
and small industrial sources this fuel-use information cannot be used
directly since industries generate both space-heating and process emissions.
Information on the amount of floor area is sometimes available and can be
used to determine average space-heating requirements for a variety of
establishments in an area.
Process emission sources for an area (Cell D) are the most difficult
to determine, especially in areas which are heterogeneous with respect to
the type of processes present. In order to estimate process emissions
with any accuracy in an area, it is necessary to establish which kinds
of emissions are the most prevalent. Further, it is important to determine
the extent to which process emissions from area sources are present, both
in terms of the number of facilities in the area, and the nature of the
average emissions for each of the facilities.
ESTIMATING CURRENT AND FUTURE EMISSIONS
In an existing metropolitan area, future air pollutant emissions
generated by a particular land use and transportation system are a
tautological product of both current development and changes in urban
structure to a future point in time. Both redevelopment and new confi-
gurations on vacant land in the metropolitan region will shape the
shifts in urban structure between existing and future times. However,
these changes in structure will be integrated with an already existing
base. It makes sense, then, to begin an analysis of future emission
generation by examining both current emission inventories and planned
emission control strategies directed at these existing sources. The
7-6
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planner can determine the availability of emission inventory data from
local, state and federal air pollution control officials.
If there are relatively few structural changes in the region between
current emission estimates and the chosen future point in time, then
one can be reasonably certain that current air quality monitoring and
emission data will be an approximation of future air quality. However,
it becomes increasingly important to develop an adequate land use and
transportation forecasting mechanism as the change component becomes
an increasingly significant element in the shaping of future metropolitan
structure.
The Guidance System Approach
The public sector has traditionally utilized such devices as zoning,
subdivision regulations, building permits and the provision of various
services, such as water and sewers, to directly influence land use pat-
terns. It is also obvious that through such devices as the location of
highways and transit lines there is an indirect influence on land devel-
opment by the public sector. The general framework encompassing this
set of direct and indirect instruments for shaping the structure of a
4
metropolitan region can be called an "urban development guidance system."
In order to estimate future emissions, a guidance system approach
must be capable of developing a reasonable approximation of what future
land use patterns will be in the region. In the final analysis, a map
of future development must be generated from the information available
to the planner. The structuring of such a map of expected future devel-
opment is an entirely feasible product of the land use planning process.
The long-range comprehensive plan for a community is an example of such
7-7
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a map. The translation of the comprehensive plan, into a zoning classifica-
tion scheme can operate, in conjunction with other gOArernmental controls
such as subdivision regulations, to direct development.
Environmental Research and Technology, Inc., utilized the long-range
development plan for the Hackensack Meadowlands area of New Jersey as a
5
base to generating emissions. The plan was transformed into a zoning
classification scheme which contained various land categories--industrial,
commercial, institutional and residential. The use of the guidance sys-
tem concept for projecting future emissions is only viable where a gov-
ernmental or private decision-making body has reasonable control over the
land allocation process within the area of interest. Most of the Hacken-
sack Meadowland region is under the jurisdiction of a relatively strong
commission which can control, to some degree, the land development pro-
cess. New towns, such as Columbia, Maryland, planned and constructed by
a private organization are also candidates for a guidance system approach
where a map of proposed development has a reasonable probability of suc-
cuss.
To use the development map as a base to estimating emissions three
assumptions must be made. First, it must be assumed that relatively
coarse land use categories, such as two classes of industry, light and
heavy, can capture the differences in the pollution-generating capacities
of the complete spectrum of land uses which exist within the particular
region being examined. Argonne National Laboratory concluded that there
are many instances in which the land use categories utilized by the
development map were not useful in the prediction of emissions, exactly
6
because the categories were too broadly defined.
7-i
-------
The second assumption is that the map of future development is a
meaningful indicator of what will actually occur in an area. As has been
discussed, this assumption holds when there are direct controls on loca-
tional decisions. It is less clear that the guidance system approach
would work in many communities where there are a complex set of public
and private forces operating in the determination of land use patterns.
As a first approximation, the use of a guidance system approach may be
reasonable, provided that it be realized that the estimated future emis-
sions may be in error because actual development was not in accordance
with the proposed development scheme.
The final assumption is that there is total development of each of
the land use categories within the overall scheme. It is an obvious fact
that a 500 acre industrial park with only 50 acres developed as a light
manufacturing facility cannot be said to generate pollutants at the
estimated emission rate for the entire area. Ideally, the planner would
have to determine the development rates for the various land areas in
the community in order to correctly ascertain the amount of pollutants
generated at some future point in time.
Mathematical Extrapolations
The problem with the guidance system concept which relies heavily on
direct and indirect governmental controls centers on the historical role
of the marketplace in the allocation of land. Through zoning variances
and other devices, a long-range development plan for a community may be
altered to such a degree that emission estimates based on the plan are
useless. Even more, the general development plan is often so coarsely
specified that accurate emission estimates are difficult to develop.
7-9
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In order to accommodate the influence of the marketplace and to
refine emission estimates, mathematical models have become a viable al-
ternative. The simplest approach is to utilize a single-equation mathe-
matical model which "grows" an activity variable over time. One basic
equation of such a growth model is:
n - 1
V = V ( 1 + GR ) (7.2)
n 1
Where:
V : A magnitude of a variable--for example,
n employment or population--for a facility
or land use area in time period n.
V,: The magnitude of a variable for a
facility or land used area during
the initial time period.
GR: The growth rate.
This application of the compound growth formula, as described by Cohen,
7
is directed toward projected variables like employment and population.
These measures of future activity can then be coupled with estimates of
emissions per employee or household to yield future emissions for the
facility or land use area. Thus, estimates of growth in employment in an
industrial sector can be developed and the corollary emissions generated
ascertained. Also, the population growth of a residential area can be
forecast and emissions estimated.
The formula cited above, utilized in air quality studies, is only
one of a more extensive set of potential equations for estimating vari-
ables which can be fed into an emissions generation framework. For ex-
ample, there is a set of linear and non-linear population projection tech-
niques widely utilized which can operate as a base to estimating future
8
growth. Also, a number of techniques have been developed to examine
alternative ways of projecting industrial employment by different classi-
7-10
-------
9
fications. The utilization of various single-equation estimators can
form the basis for estimating future emissions from stationary sources
such as industries or residences.
Of course, there are several problems which occur in the use of such
sijnple-equation estimates of a future activity. First, there is the dif-
ficult task of projecting future activity, particularly employment, at
a detailed enough level so that emissions can be estimated accurately.
Work has been done on projecting employment at the two and four digit
10
Standard Industrial Classification [SIC] code levels. However, as
will be discussed below, even the four-digit level may not be useful
in accurately determining emissions.
The second problem centers on the inability of single-equation
estimators to encompass the interdependencies that exist between ele-
ments in the metropolitan system. Employment growth is coupled to
shifts in population concentrations and land use patterns. Recogni-
tion of the linkages by analysts has led to the development of complex
models of urban systems which recognize these interdependencies.
Such complex models of urban development have as their output a
projected configuration of land use patterns and transportation system
utilization which can feed directly into emission generation and dis-
persion analysis. In Figure 7-1, there is a broad sketch which incor-
porates different models to project land use categories, vehicle miles
occurring on the transportation system, the emissions generated, and
11
the dispersion of these emissions into the atmosphere.
The various models outlined in the system already exist and are
12
discussed by researchers in the relevant disciplines. In succeeding
sections, analytic techniques for estimating emissions generated and
7-11
-------
Figure 7-1
A System of Models Relating Land Use
and Transportation to Air Quality
Future
Land Use
System
Pollutants
Generated
Future
Transportation
System
Pollutants
Generated
Atmospheric
Dispersion
Model
Feedback
Loop
7~]2
-------
dispersed will be discussed and critically evaluated. Any system of
models developed to evaluate the future impact of alternative land use
and transportation schemes must: (1) take into account the nature and
extent of the interaction between land use and transportation; (2) devel-
op reasonable estimates of expected emissions without significant error;
(3) utilize and appropriate pollutant dispersion models and; (4) develop
a set of politically acceptable and technically competent evaluation
components. It will become abundantly clear as the presentation pro-
ceeds that although the system of linked models displayed in Figure 7-1
can be developed in time with the appropriate resources, it is less
clear whether or not the resources will ever be available to construct
13
such a complex model-set which is usable at the agency level.
The succeeding discussion will attempt to clearly exposit and
critique an analytic framework for determining emissions from either
present or future urban configurations. In estimating future emissions,
it will be assumed that either a guidance system approach has produced
a plan that will be reasonably approximated in future years, or that a
set of models in conjunction with limited planning controls has projected
a reasonable facsimile of future structure. The framework that follows
is generally applicable for either estimating present or projecting
future emissions.
INDUSTRIAL EMISSIONS
Combustion and Process Components
Industrial emissions can be separated into combustion and process
loss components. The combustion element can be further divided into
7-13
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heating required for interior space (space heating) and heating necessary
for industrial processes (process heating). A distinction must be made
between the relatively constant level of emissions generated by process -
heating and the highly variable space-heating emissions. In Figure 7-2
14
this variation can be seen over the period of a year.
Process loss emissions result directly from the production of a
good by an industry. For example, aluminum ore reduction produces particu-
lates and fluorides from the chambers in which the aluminum is produced
from bauxite. Also, there are evaporation losses which occur from the
organic solvents in dry-cleaning or surface-covering operations and
from the volatile components in petroleum products. Filling an auto-
mobile gasoline tank, for example, generates approximately twelve pounds
15
of hydrocarbons per 1,000 gallons pumped.
It has been argued that reasonable estimates of future emissions
can be obtained when the space-heating and process-heating components
16
of combustion are combined. One might even argue that it may be
preferable to ignore process loss emissions in certain situations.
Basically, the planner lacks the ability to accurately predict the par-
ticular type of industry which will locate in a given location. The
industrial location literature has simply not provided him with detailed
17
techniques for locating specific industries. Since pollutants gener-
ated by the process loss component of production vary widely by in-
dustry, it becomes extremely difficult to estimate, even crudely, pol-
lutants emitted without a detailed projection of what particular indus-
try will locate in a particular area. Even analysis of process loss
emissions on a highly detailed four-digit SIC classification level,
7-14
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Figure 7-2
Process and Space-Heating Emissions over the Year
Process-Heating
Total
Emissions
From An
Area
January
Month of the Year
'-15
-------
assuming projection ability at this degree of detail, may not always be
18
satisfactory. For example, the manufacture of nitric acid and phos-
phoric acid are both coded SIC 2819. However, while nitric acid pro-
cessing emits nitrogen oxides, phosphoric acid production emits parti-
culates and fluorides.
The planner, then, either needs to have an accurate base upon which
to estimate process loss emissions, or he must attempt to incorporate
the pollutants generated by process losses in another way. One viable
procedure is to adjust the combustion process figures for industrial
uses in order to account for process loss emissions. To the degree
that process loss pollutants are the same as those encompassed by the
combustion emission generation analysis, this can be done. For example,
particulates and hydrocarbons are examined in combustion emission analy-
sis ; hence processes which lose these pollutants are encompassed by a
combustion-specific model of industrial emissions. On the other hand,
fluorides or chlorine are not considered in the combustion analysis
equation, and thus would not be estimated by a combustion-based model.
To illustrate further how one might proceed in estimating emissions
from industrial sources, two basic techniques will be discussed. The
first is combustion-based, and the second is directed towards analyzing
production output. Examination of these two models is useful in pre-
senting alternative ways of generating emissions without using emission
inventory data. The models each contain a set of structural variables
which can be estimated from generally available data. The industrial
emissions projection models are both a derivation of the general equation
cited earlier, which stated that the number of units of a particular
7-16
-------
type of land use activity and the amount of emissions per unit activity
jointly determine the emissions generated by a land use category.
Fuel Input
The generalized model of industrial emissions presented here focuses
on combustion-based pollutants solely, relegating process loss emissions
to a secondary role. Emissions per unit area are considered to be a
function of emissions per unit of heat consumed and the amount of heat
required.
The general equation to perform this calculation is:
EM = EMHT * HEAT (7.3)
Where:
EM: Emissions by weight for a defined unit
area of a particular industrial class
for a defined time period.
EMHT: Emissions by weight per unit of heat.
HEAT: The total amount of heat required for
a facility of a particular industrial
class over some defined time period.
Also, the emissions generated by a unit of heat (EMHT) is a
function of three variables: (1) emissions generated by a unit of fuel,
(2) the amount of heat generated by a unit of fuel, and (3) the propor-
tion of the different kinds of fuels used.
The equation stating this relation is :
EMHT = lPi (Ei * Hj/1) (7.4)
i
Where:
The proportion of the total amount
of fuel supplied by fuel i.
The amount of emissions of a specific
pollutant generated by a unit of fuel i.
7-17
-------
H. : The amount of heat produced by a unit
of fuel where the gross heat production
is modified by the combustion efficiency
of the heating mechanism.
For example, the amount of hydrocarbons emitted yearly by a
one-acre industrial site can be calculated. Certain assumptions
about the type and size of the industry and the emission data utilized
must be made. Using the equations above, the units of heat required
yearly for a unit area --in this case one acre -- can be calculated.
Assuming that an industrial structure will cover approximately 40 per-
cent of the site with a floor area ratio of 1.0 and that space-heating
demand is 27.5 BTU per square foot per hour, then one acre (43,560
square feet) of industrial land yields the following BTU per acre per
19
hour :
BTU/acre/hour = 27.5* 1.0* .40* 43,560 = 479,160
Two classes of industry can be analyzed -- light and heavy. Heavy
industry is assumed to operate year-round continously or for a total
of 8,760 hours. Hence:
9
BTU/acre/year = 479,160* 8,760 = 4.2 x 10
At this point, our earlier discussion about space-heating and
process combustion emissions becomes important. Basically, the strategy
is to estimate space-heating requirements and then add on a propor-
tional amount to the estimate to cover the process heating component.,
For example, since it has been estimated that roughly only ten percent
of total combustion needs are for space-heating in heavy industry, then
total heat requirements are ten times the amount required for space
20
heating alone. Thus, the total amount of heat required per acre of
21
heavy industry on a yearly basis would be the following:
HEAT = 4.2 x 1010 BTU/acre/year
7-18
-------
The calculation of the amount of emissions per unit heat (EMHT)
requires information about these proportions of different fuels used
and the emissions and heat generated by these fuels. It will be assumed
in this example that heavy industry uses residual oil 75 percent of the
time and natural gas the remainder. Equation 7.4 will be used to develop
estimates of emissions per unit of heat. The following values for
calculating residual oil emissions per unit of heat can be determined:
Pi = -75
22
E-, = 24 pounds S09 per 1,000 gallons
Z 23
F^ = 84,286 net BTU per gallon
For natural gas the following values will be used:
P2 - .25
E = .6 pounds per 10 cubic feet ^
H = 788 BTU per cubic feet25
Thus, substitution in equation 7.4 yields the following value
for emissions generated per unit of heat:
EMHT = 2.1 x 10~7 pounds SO per BTU
Li
Further substitution of the emissions generated by each unit of heat
and the amount of heat required per acre of heavy industry into Equation
7.3 yields the following estimates of total emissions of sulfur dioxide
per acre:
EM = (4.2 x 1010) * (2.1 x 10"7)
EM = 8,800 pounds SCU per acre per year
The technique just outlined moves from heat consumption data and
emission factors to an estimate of the amount of pollutants generated
by a land use category. The specific example focused on heavy industry
where assumptions had to be made about the amount of square footage
7-19
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Table 7-1 Pollutant Emissions by Land Use
Category and Transportation Activity
Land Use Category
Pollutant Emissions9
(I b/y ear/acre)
Residential
10 Dwelling units/acre
20 Dwelling units/acre
30 Dwelling units/acre
50 Dwelling units/acre
80 Dwelling units/acre
Commercial & Industrial
Commercial
Manufacturing
Light
Heavy
Research
Distribution
Open Space
Other
Highway (lb/106 vehicle-miles)
Parking Lots (lb/1Q3 hrs idling
TSP
25
180
180
250
200
60
1100
5400
2
60
0
so2
1
120
120
160
140
45
1100
5400
15
45
0
CO
35
4
4
5
4
1
10
60
1
1
0
HC
12
54
54
75
63
12
140
900
5
12
0
NO
X
7
85
85
120
100
95
850
5400
35
95
0
Emission Factors
700
400
4
11000
12
1000
3
1500
1
aThe pollutants in the table are: total suspended particulates (TSP), sulfur dioxide (SO2>, carbon monoxide
(CO), hydrocarbons (HC), and oxides of nitrogen (HOX).
Source: Byron H. Willis and James R. Mahoney, "Planning For Air Quality," paper presented at annual
meetings of American Insitute of Planners, Boston, Massachusetts, November 1972.
7-20
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contained in a structure located on an acre of land. In Table 7-1 the
amount of pollutants generated by different land use categories can be
26
seen. The values, developed by Environmental Research and Technology,
Inc., are estimates for 1990 based on certain assumptions about fuel
utilization, emission controls and physical characteristics of the
structures located on the land. Most importantly, the values are
generated by a technique, similar to the one above, developed to esti-
mate heavy industrial emissions of sulfur oxides on an areal basis.
Note that the 8,800 pounds of sulfur dioxide estimated in the analysis
above is greater than the 5,400 pounds found in Table 7-1 for the heavy
manufacturing land use, reflecting differences in the numeric values
utilized.
A note of caution is important. The figures in Table 7-1 are
specific to the Hackensack Meadowlands project for which they were
developed. They are illustrative only and should not be used in other
applications without a careful assessment of how the values might vary.
In particular, the kind of fuel utilized in an area is a critical determi-
nant of emissions generated.
Production Output Analysis
The distinction between combustion and process emissions can be
viewed somewhat differently when one examines production outputs rather
than heat inputs. In the heat-based technique, the focus was on fuel emis-
sions as a function of both process heating and space-heating. The space-
heating requirements were calculated initially and then process-heating
requirements added on in a simple multiplicative operation. Process
emissions per se_ could not be directly handled in the heat-based analysis.
7-21
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In production output analysis, a relationship is established between
the amount of output generated by an industry and the process emissions
which occur. Obviously, production output analysis focuses on the neglec-
ted component of a heat-based framework process emissions. Utilizing
available research findings, the analyst can estimate emissions provided
27
that outputs can be ascertained.
The basic equation for estimating emissions from an industrial
source is:
EM = (OUTPUT * EMOUT) + EMSPCE (7.5)
Where:
EM : The emissions of a particular pollutant
generated by both process and process-
heating activities as well as by space-
heating needs from an industrial facility
over some time period.
OUTPUT : The estimated output of the facility
over some time period.
EMOUT : The amount of emissions of a pollutant
generated by a unit of output.
EMSPCE : The emissions generated from the space-
heating needs of the facility over a
defined time period.
The emissions generated by space-heating (EMSPCE) can be developed
from a combustion-based analysis such as outlined in the preceding
section. The emissions generated for a unit of output (EMOUT) is
developed from an equation similar to the one utilized earlier, Equation
7.4, in estimating emissions per unit heat. In order to use Equation
7.5, it must be assumed that the process and process-heating emissions
can be separated from the strictly space-heating requirements. Even
more, the role of control technology in reducing emissions must be
7-22
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onderstood and the necessary data available.
For example, hydrofluoric acid manufacture produces fluorides
and particulates as emissions. One ton of manufactured acid will
produce 50 pounds of fluorides if the process has no emission controls,
and only 0.2 pounds per ton when controlled. Hence, knowledge of the
number of tons produced during some defined time period will allow
the estimation of the amount of fluorides emitted under different control
levels.
There are several problems in the output analysis approach. The
first of these refers to the assumption just made about the separation
of process and space-heating components. The emission factors contained
in EPA's Compilation of Air Pollutant Emission Factors are not sufficiently
differentiated in terms of whether they are combustion-based or process -
based. For example, the manufacturer of brick involves both process -
heating emissions from the drying and firing of bricks in ovens and
process emissions from the brick itself. Process-heating emissions vary
according to the kind of fuel used in the heating of the ovens. Gas-
fired ovens emit .6 pounds of nitrogen dioxides per ton of bricks manu-
factured, while oil-fired furnaces emit 1.3 pounds. In the heating
of the bricks, the clay will give off process emissions of 0.8 pounds
28
of fluorides per ton of bricks.
The analyst, then, is faced with a difficult estimation task. The
earlier distinction between combustion emissions, including both space-
heating and process-heating components, and process emissions breaks
down in this production output framework. If one could be certain to
include both process and process-heating emissions in a production
7-23
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output analysis, then either the heat-based strategy outlined earlier
could be utilized to cover the space heating component or through the
monitoring of fuel records actual estimates of space heating requirements
and corollary emissions could be made directly. The process-heating com-
ponent derived from fuel record examination would only be utilized in
the emission estimates if it were determined that they were not included
as a component of the emission factors.
Beyond this initial problem with production output analysis there
is the further one with the usefulness of the technique to the urban planner.
The problems inherent in forecasting industrial development at a detailed
enough level for accurate assessment of emissions has already been dis-
cussed. Consider, however, the difficulty in estimating process and
space-heating emissions across the full set of industries found in any
metropolitan area.
Equation 7.5 describes the emissions generated by a single facility.
To fully describe the emissions generated by a defined area, the entire
set of polluting industries would have to be examined. In determining
the present level of emissions, industrial sources can be treated as
individual point sources and the output of Equation 7.5 directly fed
into the atmospheric dispersion model. The planner can seldom be so
specific about the location of future industrial facilities. Hence,
the planner requires areal approximations of potential emissions akin
to those found in Table 7-1.
A strategy for projecting emissions for defined areas can be
sketched out. First, current industrial development is studied and
emissions data generated either through direct stack monitoring or
7-24
-------
th oueh a versi°n °f the production output analysis outlined above. Then
the fuel input analysis technique is utilized for potential industrial
development, where emissions are estimated on an areal basis. This stra-
tegy can provide an initial approximation of emissions at some future point
in time.
With continuing research it may be possible to use an aggregative
form of production output analysis to refine the approximations generated
by a combustion-based analytic framework. In particular, it seems likely
that more refined estimates of industrial emissions on an areal basis
can be developed than those outlined in Table 7-1. Location theoretic
considerations, including agglomeration effects, dictate that there are
differing propensities for the development of a specific industry or
29
groups of industrial classes in particular localities. The coupling,
then, of the examination of existing industries to the locational be-
havior of firms can act as a base to improve future approximations of
emissions from a defined area.
RESIDENTIAL EMISSIONS
Residential land use is considered as an area source, treated in
a dispersion model as if the defined area were emitting at a constant
rate across its surface. The basic residential emission model is an
extrapolation of the earlier generalized equation. The residential
model is as follows:
EM = 1.1 (EMHT * HTDU * DUAREA) (7.6)
Where: EM : Emissions of a pollutant for a defined
time period for an area of residential
land at a specified number of dwelling
units per area.
7-25
-------
EMHT: Emissions of a pollutant per unit of heat.
HTDU: Amount of heat required for a dwelling
unit for some defined time period
DUAREA: The number of dwelling units per unit
area.
The equation is a straightforward multiplicative function. The
factor of 1.1 above increases the figure for space-heating
emissions by 10 percent to encompass process-heating emissions for
cooking and other household activities.
The amount of heat required for a dwelling unit over some time
period (HTDU) can be ascertained in a number of different ways. First,
current data available from fuel records and engineering data can be
used to establish a fixed value of heat for dwelling units of a par-
ticular class. For example, estimates have been made of the total
yearly requirements for heat of a typical single-family unit. The
6 30
value calculated is 70 x 10 BTU's.
Other researchers have estimated an hourly requirement for a single-
31
family unit at 18,750 BTU's. These basic figures, modified by room--
size variations and the degree-day differences, provide a basic frame-
work which can be used.
A more general approach to estimating the amount of heat required
for a dwelling unit (HTDU) is the following:
HTDU = S*Q*T (7.7)
Where:
S : The average amount of square footage
in a dwelling unit.
Q : The amount of heat required per square
foot of the dwelling unit for some
defined time period.
7-26
-------
T : An adjustment factor to take into account
the differences between temperature in the
region of study and temperatures in the
region where the measurements of heat
required per square foot of dwelling unit
space were developed. On a yearly basis,
the ratio can be conceived of in terms of
annual degree-days.
The amount of sulfur dioxide emissions generated by an acre of
residential land use containing 10 single-family dwelling units can be
calculated. This density approximates an older suburb where lots are
3,000 to 4,000 square feet. It will be assumed that these residences
average 1,200 square feet, or six rooms, and that the square foot values
are directly applicable without adjustment to the region in which the
dwelling units are located. This implies the following values:
S = 1,200 square feet
3 32
Q = 113 x 10 BTU per square foot yearly
T = 1
and therefore:
HTDU = 135.6 x 106 BTU per dwelling unit
Also, since it will be assumed in this example that half of the
total BTU's are produced by distillate oil and half by natural gas, then
for particulate emissions:
EI = 10 pounds of particulates per 1,000 gallons
of oi!33
H1 = 84,286 net BTU per gallon.34
For natural gas:
PI = .50
E2 = 19 pounds of particulates per 106 cubic feet^S
H2 = 788 net BTU per cubic foot36
P2 = .50
7-27
-------
To determine the amount of emissions of particulates per BTU
averaged over the proportional mixture of fuel types used, Equation 7.4
will be used. Hence:
EMHT = 7.1 x 10"8 pounds of particulates per BTU for
ten dwelling units per acre. The general equation (7.6) becomes, when
estimating yearly emissions:
EM = 1.1 (7.1 x 1CT8) * (135.6 x 106) * 10
EM = 106 pounds of particulates per acre per year
A re-calculation of this emission estimate, using only natural
gas as a fuel, indicates that emissions dropped to 36 pounds per year
of particulates. Examining Table 7-1, it can be seen that emissions from
a residential land use category of 10 dwelling units per acre is included.
According to Table 7-1, this land use category will generate 25 pounds of
particulates per year, where natural gas is assumed to be used exclusively.
The 25 pound figure approximates the estimate of 36 pounds of particulates
per year from natural gas heating derived above.
COMMERCIAL AND INSTITUTIONAL EMISSIONS
Commercial and institutional emissions estimates are a straight
extrapolation of the earlier discussions. Basically,
EM = EMHT * HTFT * FT (7.8)
Where:
EM : Emissions of a pollutant for a defined
time period for an acre of commercial
or institutional land use.
EMHT: Emission of a pollutant per unit of heat.
HTFT: Amount of heat required per square foot of
commercial or institutional space for some
defined time period.
7-28
-------
FT : The amount of square footage.
Once again, the emissions of a pollutant per unit of heat (EMHT)
is a joint function of the proportion of different fuels used, the
emissions per unit of fuel, and the heat generated by a unit of fuel, as
outlined in Equation 7.4. Given an estimate of the square footage of
interior space and the amount of heat required per square foot for the
time period in question, then emissions of a pollutant can be estimated.
The time period to be used must be clearly specified. The yearly esti-
mate of pollutants generated by a land use category, of course, includes
both winter and summer seasons. Since space-heating requirements are
usually confined to winter time, any yearly estimate of emissions will,
of necessity, average both winter and summer use. An hourly estimate of
BTU's needed per square foot must take into account the hours during the
year when space-heating is required. In Equation 7.8 the amount of heat
required per square foot of commercial or institutional space for the
period of a year is an average combining both winter and summer needs.
On a yearly basis, the equation for estimating the amount of heat
required for a square foot of space can be written thus:
HTFT = HTFTU * T (7.9)
Where:
HTFTU: Heat required per square foot unadjusted
for the differences between the region
in which the heat requirements were deter-
mined and the region for which the ini-
tial estimates are being generated.
T: Adjustment factor, which on a yearly
basis can be conceived of in terms of
annual degree-days.
For example, the amount of particulates emitted by a commercial
7-29
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facility of 10,000 square feet located on 1 acre of land can be calculated.
It will be assumed that the yearly amount of heat required (HTFTU) unadjusted
for degree-day differences between regions is 48,750 BTU's per square foot.37
Assuming that there is no adjustment required for temperature differ-
ences between regions, then
T = 1
And: HTFT = 48,750
It follows, then, that for a commercial facility using only distillate
oil, the emissions per unit of heat can be calculated using Equation 7.4:
E = 15 pounds of particulates per 1,000 gallons
1 of oil38
EI = 84,286 BTU's per gallon39
P = 1.0
Thus:
EMHT = 17.8 x 10~8 pounds particulates per BTU
If, for example, it was assumed that a 10,000 square foot facility
would be constructed on 1 acre, then the emissions of particulates
from this acre of land is:
EM = (17.8 x 10"8 * 48,750 * 10,000
EM =87 pounds particulates
Obviously, such an analysis of emissions from commercial or in-
stitutional land uses assumes knowledge of heating requirements and the
size of the various facilities. The analyst would necessarily have to
have reasonable estimates of future developments in order to accurately
assess the emission generation potential. Hence, the estimation of the
heating requirements of schools would have to be cognizant of the res-
ponse of educational planners to the community's needs for classroom
7-30
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space. It becomes immediately obvious that one cannot separate the
land use planning process from air quality considerations. Indeed, the
planners' inputs in terms of community needs are essential to the devel-
opment of emission estimates.
TRANSPORTATION EMISSIONS
The technique for estimating emissions from automobiles, trucks,
and buses focuses directly on the best single measure of travel activity,
vehicle miles occurring over a defined length of roadway for some time
period. Since vehicles traveling at different speeds have different
emission rates, ideally one would like to know the vehicle miles
travelled over a length of roadway or various speeds as well as the
40
mix of idling, acceleration, deceleration, and cruising. Since
transportation sources emit pollutants continuously over a finite stretch
of roadway of relatively small width, then the term, "line source," is
generally used. The basic equation for estimating the emissions gener-
ated by a known volume of traffic for a length of roadway is:
EMLT = VHMI * EMSP (7.10)
Where:
EMLT: Total emissions generated over
a defined length of roadway for
some time.
VHMI: The vehicle-miles traveled over
the length of roadway at an average
speed.
EMSP: The amount of emissions per vehicle-
mile at the average speed designated.
This basic equation assumes one average speed for the finite length
of roadway and presumes that the emission factor used (EMSP) takes
7-31
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Table 7-2 Motor Vehicle Emission Factors
(grams per vehicle mile)
By Speed
15 mph
Cars
Trucks
Diesels
25 mph
Cars
Trucks
Diesels
50 mph
Cars
Trucks
Diesels
All Speeds
Cars
Trucks
Diesels
1976
Carbon
Monoxide
80.32
131.00
12.39
49.19
81.40
12.39
29.40
38.10
12.39
Hydrocarbon
8.80
18.50
1.75
6.96
13.79
1.75
5.28
11.34
1.75
Nitrogen
Oxides (NO2)
4.52
6.33
27.74
4.52
6.33
27.44
4.52
6.33
27.44
1990
Carbon
Monoxide
5.00
6.70
3.62
Hydrocarbon
0.454
0.907
0.399
Nitroger.
Oxides (NC-2)
0.688
0.998
0.770
Source: Environmental Research and Technology, Inc. , Environmental
Impact Statement, Governor Alfred E. Discroll Expressway,
prepared for the New Jersey Turnpike Authority, September 1972.
7-32
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into account a mixture of automobiles, trucks, and buses traveling the
roadway. In Table 7-2 there are listed illustrative emission factors
for cars, gasoline-powered trucks, and diesel trucks and buses for 1976
and 1990 at different speeds. The differences between 1976 and 1990
reflect the influence of current federal emission standards on new ve-
hicles mandated for the years up to 1976.41
For example, 100,000 vehicles traveling over the period of a day
on an expressway at an average speed of 50 miles per hour will contain
some mix of cars, trucks and buses. A general equation to calculate an
average emission rate can be developed:
EMSP = I(pi * EMSP^ (7.11)
i
Where:
P_^ : The percentage of total vehicle-miles attributed to the
ith kind of vehicle
EMSP. : The emission factor of the ith kind of vehicle at a specified
average speed.
Assuming that there are 94 percent cars, 3 percent gasoline trucks,
and 3 percent diesel trucks and buses traveling at an average 50 MPH
speed, then 1976 daily carbon monoxide emissions can be calculated.
EMSP = .94(29.40) + .03(38.10) + .03(12.39)
EMSP = 29.15 grams per vehicle mile
The total daily emissions in 1976 for a mile of expressway with an
average speed of 50 miles per hour is:
EMLT = 100,000 * 29.15 = 2.9 x 106 grams
Depending on the exact problem on hand, the equations above can
be enriched on a number of different levels. For example, to determine
the total emissions generated over an area the emissions from each of
7-33
-------
the lengths of roadway in the area can be summed. Or, the equations can
be made more realistic by including the changes in emission rates which
occur as vehicles move through the different stages of the traffic cycle.
Whatever the detail or scale of the study, the -importance of the trans-
portation sector in generating emissions cannot be underestimated.
PLANNING IMPLICATIONS
The planner interested in estimating future emissions from a region
is faced with a number of problems. Not only must he be able to generate
the necessary information but must also be assured that the data and
models utilized are relatively error-free, not overly expensive, and
relevant to the problems at hand. What follows is an examination of the
current state of the art and suggestions for appropriate strategies.
Following on the earlier discussions, it should become apparent
that the planner must be able to appropriately specify what future land
use and transportation patterns are likely to occur. This task is one
of the primary responsibilities of the urban planner. He can rely on
air pollution control specialists to provide emission data and the po-
tential level of pollutant control. The planner, however, is left with
estimating the nature and extent of the land use structures and trans-
portation systems which will act as a base to the emissions generation
phase. Two issues become important at this point: (1) the scale of
the study, and (2) the use to which the analyses will be put in the con-
text of validity and measurement questions.
7-34
-------
The Scale of the Study
The methodology examined earlier is generally applicable to any size
study area. However, the scale of the investigation does affect the
treatment of the different variables in terms of the level of detail re-
quired and the anticipated impact on the environment. On the one extreme
there is the focus on regional air quality. In this case, the concen-
tration is on the long-term average air quality in a region generated by
a web of land use structures and travel patterns. The Environmental
Research and Technology, Inc. study of the Hackensack Meadowlands devel-
opment in northern New Jersey examined both land use and transportation
systems for their effects upon air quality. Other investigators have
examined sub-systems of the regional air quality question. Kurtzweg
and Weig studied the transportation systems in the Seattle, Washington
area,43 while researchers at the Argonne National Laboratory have examined
the future growth of the industrial sector in St. Louis.44 The planner
interested in focusing on the regional scale air quality problem has a
basic reference set of already-existing studies.
Of primary importance to the planner is the land use and transpor-
tation system which forms the basis of emissions generacion. Unfortu-
nately, in the studies to date, this is exactly the area which has not
been emphasized. Examination of these studies indicates the relative
primitiveness with which the dynamics of urban spatial structure have
been treated. Little of the extensive work in urban development models,
specifically designed to forecast future land use patterns and transpor-
tation system requirements, has been utilized in air quality investi-
gations. The earlier discussion of complex models of urban structure
7-35
-------
is, at this point, only a harbinger of the research which can be expected
in future years.
Of course, in all of this discussion of regional air quality an
emphasis has been placed upon forecasting to expected future states.
It is suggested here, and emphasized by other Investigators, that the
urban planner should not take on the task of attempting to alleviate
short-term air quality problems. •> This is the primary responsibility
of the air pollution control agency. Rather, the planner will need to
carefully assess the variety of direct and indirect controls which
potentially can shape land use and transportation configurations in
the long run. The viability of the long-range development plan for the
region may be a critical determinant in the ability of the planner to
estimate future air quality. If the plan is incapable of being imple-
mented, then air quality projections based on the plan may be in serious
error. As previously suggested, some combination of public policy
directives and the modeling of market dynamics may have to be undertaken
in order to reasonably approximate future emissions.
The degree of accuracy of the emissions projection is less important
for the regional case than for the examination of local conditions. The
proposed location of a particular land use or transportation structure and
the localized effects of the emissions generated is a very different
problem than the study of long-term regional air quality. On the one
hand, the analysis of the air quality effects of a single source is sim-
pler than the examination of the regional case. A single source will
emit an identifiable amount of pollutants. Reasonable approximations
of the amount of emissions occurring at some distance from the source
7-36
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can be estimated through the use of an atmospheric dispersion model.
For localized effects, the techniques outlined earlier for estimating
emissions are applicable. In particular, the emission factors dis-
cussed with regard to process emissions are useful in estimating pollu-
tants generated by an industrial source. Also, the generalized trans-
portation source equations can be used quite readily for a single line
source, such as a stretch of proposed expressway.
On the other hand, since one is dealing with only a single source
and examining its localized effects, the question of model validity and
of measurement error are of overriding importance. The inaccurate esti-
mation of pollutant concentrations from a single source, such as a new
industrial plant or highway, can have grave consequences for the health
and well-being of local residents. In a regional situation, the same
inaccuracy in the estimation of pollutant concentrations from any single
source will not dramatically affect regional air quality. It must be
noted, however, that the question of error in measurement and in models
must be examined for both the local and regional case.
Utility and Imperfect Data
The proper utilization of a procedure^ f°r determining the nature
and sources of emissions on the local or regional levels depends on
an understanding of data limitations. In the following chapter a de-
tailed analysis will be undertaken of the error propagation potential
inherent in models which predict the dispersion of pollutants. For
purposes here, it is more important to examine the kinds of errors which
can occur in emission generation estimation and the potential ways by
which the data utilized can be improved.
7-37
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There are a number of sources of potential error in estimating present
and future emissions from the different sources found in a region. Present
emission estimates are at best rough approximations of what exactly is
going into the air at any given time. There are three basic sources of
error in the determination of present emission levels. These are: (1)
incorrectly locating the source in space; (2) underestimating the total
amount of pollutant emitted over an area because sources are missed; and
(3) incorrectly estimating the amount of pollutant emitted over some
defined time.
A source location may be incorrect if the grid coordinates describ-
ing the location are erroneous. The model which disperses pollutants
across a region requires a locational fix on the emitting sources. Thus,
incorrect source location will affect the concentrations calculated to
occur at a different receptor point. A second kind of error centers
on the systematic underestimation of emissions generated because sources
46
are missed. One can easily conceive of situations where an industrial
process is missed or residences not enumerated. There is a systematic
bias in this type of error. While sources may easily be overlooked,
seldom are they created where none exist.
These two types of error can be minimized through appropriate data-
handling procedures. Error-checking routines, common in the social
science research literature, are easily adapted to emissions generation
data collection. However, the third type of error cited above is a
more difficult case. The estimation of the amount of pollutants emitted
by a source is a major measurement problem. The virtual impossibility of
actually measuring even a major portion of the sources through field
7-38
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visits means that estimation procedures must be employed. The equations
described earlier which estimate the amount of pollutants emitted by a
particular kind of source through the use of emission factors are examples
of such estimation methods.
Emission factors are developed through a sampling of sources. From
this sample, an anticipated expected value of the amount of pollutant
emitted by a unit of production output or heat input can be developed.
These factors are averages and,since they are based on sample data,
contain sampling error. Fortunately, the data used to develop emission
factors is continually improving. However, at the current time, emission
factor data are barely adequate for the tasks assigned to them. The most
recent comprehensive document on emission factors, Compilation of Air
Pollutant Fjnission Factors, includes a rating of the quality of the
emission factors contained, based on the amount of sampling and
analysis undertaken. The highest ratings have been given to the data
and analysis used in the development of emission factors for such activities
as coal and fuel oil combustion, and iron and steel mills. Unfortunately,
the overall rating of other emission factors is not as satisfactory.^
Granting that industrial processes about which a great deal is known
are often major polluters, it is still true that in selected areas agglomer-
ation effects and resource constraints are such that industrial processes
about which little is known may be significant contributors to air quality
degradation. The continued development of more accurate factors is critical
to the increased reliability of source emission estimates.
An important problem with the current status of emission factor data
is that the sampling procedures utilized are not fully described nor are
7-39
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estimates of the deviations in data observations about the estimated
average values supplied. Assuming that sampling procedures are used
in the collection of emission factors from a series of sources in order
to develop an average value, then information about the statistical
variance and sample size of the data would be useful. In particular,
given certain statistical assumptions, particularly normality, the
analyst could place confidence intervals about the estimates of an
emission factor. A range of values could be developed within which any
particular source would be expected some defined proportion of the time.
When one realizes that the estimation of a particular source may
be in error by some percentage, and also realizes that there are a
multiple number of sources within any defined area,, then the error
potential of the emissions estimation procedure can be seen even on a
purely qualitative level. Assuming that the errors in emissions genera-
ted by different sources in some area are randomly distributed, then the
error attached to the total estimate of a pollutant from all sources is
effectively dampened. An acre containing residences, a small grocery
store, and streets, will emit a defined amount of nitrogen oxides. The
calculation of the amount of nitrogen dioxides emitted by residences and
the . ommercial activities might be an over-estimation while the model of
automobile emissions might yield an underestimate. In this case, there
would be an effective reduction in the amount of total error generated
when residences, grocery stores and streets are combined. In point of
fact, an additive model such as was just described does not produce a
larger percentage error in the total than can be found for each of the
component variables. However, a larger numeric error value can be ex-
pected. The error propagation potential of various models is discussed
7-40
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in detail in the next chapter.
Thus far, the extended discussion of errors in emission generation
estimates has focused on the present. Two of the potential errors in
emission estimates, under-estimation and mis-location of sources, are
controllable through careful enumeration of sources and continual checks
to insure data integrity. The other kind of error, inaccurate estimates
of the amount of pollutants emitted, is not so easily handled. There is
an obvious need to continually refine the emission factor data. However,
the inability to check on emission factors by means other than examination
of the processes themselves is a serious dilemma. Exactly because gener-
ated pollutants are immediately dispersed into the atmosphere, it is
difficult to differentiate errors in the emission generation models from
errors found in the dispersion analysis. The errors which occur in the
estimates of the pollutant concentrations calculated to exist at a recep-
tor point in the region are a function of both the emissions generation
and dispersion models.
Beyond the concern with the kinds of errors attributable to esti-
mates of emissions from present land use and transportation configuration
is the further interest in future land use and transportation structures
and the resultant air quality. Not only must the planner face the problem
of developing reasonable emission estimates from an already-existing regional
structure, but his necessary concern with the future dynamics of land use
and transportation systems also requires that he be able to generate
reasonable estimates of how the r^ion '-.all appear some years hence. The
kinds of estimation techniques described earlier, including urban devel-
opment models and a guidance system framework focusing on legal and
administrative tools for shaping land use, are important elements in
approaching this task.
7-41
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The planner should realize that there are available techniques for
developing reasonable estimates of future emissions. However, the
question remains: Can a study of future air quality in a region be under-
taken within the resource constraints of many agencies? Before answering
this question, it will be necessary for us to move to a discussion of
another part of the land use and air quality interface - - dispersion
analysis.
7-42
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NOTES
1. In particular the work done by Argonne National Laboratory, Air
Pollution-Land Use Planning Project, and Environmental Research
and Technology, Hackensack Meadowlands Air Pollution Study are
two recent attempts at examining the land use planning and air
quality management interface. Specific documents coming out of
these research efforts will be cited where appropriate.
2. See Office of Air Programs, U.S. Environmental Protection Agency,
Compilation of Air Pollutant Emission Factors (Publication No. AP-
42 1972) [Hereafter cited as Compilation of Air Pollutant Emission
Factors].
3. See Guntis Ozolins and Raymond Smith, A Rapid Survey Technique
for Estimating Community Air Pollution Emissions (U.S. Public
Health Service Publication No. 999-AP-29 1966) [Hereafter cited
as Ozolins and Smith], and Compilation of Air Pollutant Emission
Factors.
4. The seminal piece is by Stuart Chapin, Jr., Taking Stock of
Techniques for Shaping Urban Growth, 29 J. Amer. Inst. of Planners
76-87 (No. 23 May 1963). See also David Heeter, Toward a More
Effective Land Use Guidance System: A Summary and Analysis of
Five Major Reports, Planning Advisory Service, Amer. Soc. of
Planning Officials (No. 250 1969).
5. See the multi-volume research investigation by Environmental
Research and Technology, Inc. on the Hackensack Meadowlands
Development Plans.
6. Allan S. Kennedy et al., Air Pollution-Land Use Planning Project
Phase I-Final Report 15-8 (Publication No. ANL/ES-7 1971).
7. Alan S. Cohen, The Use of Three Growth Models to Evaluate the
Future Effectiveness of Air Pollution Control Regulations, a
paper presented at the annual meeting of the Air Pollution
Control Association (June 1972), or Alan S. Cohen et al.,
Growth Analysis Report for the Illinois Implementation Plan-
ning Program (Publication No. IIPP-7 1972).
8. See F. Stuart Chapin, Jr., Urban Land Use Planning (1965), and
Donald A. Krueckeberg and Arthur Silvers, Urban Planning
Analysis: Methods and Models (forthcoming).
7-43
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9. See, in particular, Michael Greenberg, A Test of Alternative Models
for Projecting County Industrial Employment at the 2,3,4-Digit
Standard Industrial Code Levels, Regional and Urban Economics
397-417 (February 1972) [Hereafter cited as Greenberg]. See also,
Edward L. Ullman et al., The Economic Base of American Cities
(1971), on the extrapolation and minimum base requirements, and,
of course, Charles Tiebout, The Community Economic Base Study
(Paper No. 16 1962), on economic base studies.
10. Greenberg.
11. ^n extension of this discussion can be found in
Richard K. Brail, Modelling the Interface Between Land Use,
Transportation and Air Pollution, in The Relationship of Land Use
and Transportation Planning to Air Quality Management (G. Hagevik
ed. 1972) Hereafter cited as Brail.
12. For an excellent discussion of urban development models see H.
James Brown et al., Empirical Models of Urban Land Use: Sugges-
tions on Research Objectives and Organization (1972). For an
example of an extensive effort in urban modeling, see Jobs,
People and Land: Bay Area Simulations Study (1968). Transporta-
tion planning methodology is discussed in Roger Creighton, Urban
Transportation Planning (1970), and W.R. Blunden, The Land Use/
Transport System (1971). For a general discussion of the models
required and their relation both to each other and other elements
in the regional system see Brail.
13. The urban planning research literature contains pieces which
exhibit both the euphoria and the despair with which complex
simulation models have been viewed. One need only read Britton
Harris, Quantitative Models of Urban Development: Their Role in
Metropolitan Policy Making, in Issues in Urban Economics (H.
Perloff and L. Wingo ed. 1968), and more recently William Goldner,
The Lowry Model Heritage, 37 J. Amer. Inst. of Planners 100-10
(No. 2 March 1971), on the optimistic side. For comparison, see
Richard Bolan, New Rules for Judging Analytical Techniques in
Urban Planning, in Analytical Techniques (1969), and particularly,
Douglass B. Lee, Jr., Requiem for Large-Scale Models, 39 J. Amer.
Inst. of Planners 163-78 (No. 3 May 1973).
14. Figure 7-2 is extrapolated from Ozolins and Smith 9.
15. Compilation of Air Pollutant Emission Factors 4-5.
16. John C. Goodrich, Task 1-Emission Projection Methodology and
Its Application to the Hackensack Meadowlands Development Plans-
Part 1: Emissions Projection Methodology (Document No. P-244-1
(1972) [Hereafter cited as Goodrich].
7-44
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17. See Greenberg and Jobs, People and Land: Bay Area Simulation
Study for attempts at using detailed industrial codes in projections.
18. Goodrich, Task 1 Part 1.
19. These figures are drawn from Goodrich, Task 1 Part 2.
20. Goodrich, Task 1 Part 1.
21. An important variable in the determination of the amount of heat
required for a particular facility is the number of degree days
occurring over the year. On any given day the number of degree days
is determined by subtracting the mean temperature of the day
from 65 degrees. Thus, an average temperature on a winter day
of 30 degrees would mean a total of 35 degree days occurring.
See Ozolins and Smith for a further discussion, and see the
succeeding section on residential emissions for an analysis of
how to introduce degree-day estimates into the heat requirements
needed for a facility.
22. Compilation of Air Pollutant Emission Factors 1-7.
23. Assumes 150,000 BTU's per gallon gross thermal value and a 60
percent efficient heating system. See Compilation of Air Pollutant
Emission Factors A-6, for thermal equivalents, and Ozolins and
Smith for the suggested efficiency of different heating systems.
24. Compilation of Air Pollutant Emission Factors 1-9.
25. Assumes 1,050 BTU's per cubic foot gross heating value and a 75
percent efficient heating system, supra note 24.
26. See the five-task research document on the Hackensack Meadowlands
by Environmental Research and Technology Inc., or Byron H. Willis
and James R. Mahoney, Planning for Air Quality, paper presented
at the annual Meeting of the Amer. Inst. of Planners (November 1972).
27. In particular, see Compilation of Air Pollutant Emission Factors.
28. Compilation of Air Pollutant Emission Factors 8-3,4.
29. For an example of where basic locational factors were utilized in
an applied simulation model to locate groups of industrial classes,
see Jobs, People and Land: Bay Area Simulation Study.
30. Ozolins and Smith 43.
31. Goodrich, Task 1 Part 1 106-7.
32. Extrapolated from the value used by Goodrich, Task 1 Part 2. The
estimate has been changed from an hourly to a yearly value.
7-45
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33. Compilation of Air Pollutant Emission Factors 1-7.
34. Derived in the same manner as shown in note 23 except that the
gross heating value of distillate oil is 140,476 BTU's per gallon.
35. Compilation of Air Pollutant Emission Factors 1-9.
36. Supra note 25.
37. This 48,750 BTU's per square foot used by Goodrich, Task 1 Part 2
107-8. It is assumed that commercial facilities operate 3,000
hours a year.
38. Compilation of Air Pollutant Emission Factors 1-7.
39. Supra note 34.
40. See J.A. Kurtzweg and D.W. Weig, Determining Mr Pollution Emissions
from Transportation Systems, paper presented at the Association for
Computing Machinery meetings (October 1969), for one interesting
example of a methodological framework. [Hereafter cited as Kurtzweg
and Weig].
-1. See F. Reg. July 7, 1971.
42. See the five-task report by Environmental Research and Technology
Inc. on the Hackensack Meadowlands.
43. Kurtzweg and Weig.
44. A.S. Cohen, L.J. Hoover and J.E. Norco, The Impact of Economic Growth
on Air Quality in the St. Louis Region, paper presented at the Amer.
Inst. of Chemical Engineers meetings (May 1972).
45. See Willis and Mahoney, Planning for Air Quality, paper presented
at the annual meeting of the Amer. Inst. of Planners (November 1972).
46. Glenn R. Hilst, Sensitivities of Air Quality Prediction to Errors and
Uncertainties, Proceedings of Symposium on Multiple-Source Urban
Diffusion Models (Arthur C. Stern ed. 1970).
47. For example, simple error checks such as are described in Charles
H. Backstrom and Gerald D. Hursh, Survey Research (1963), are
often useful. Also, simple computer programs can be developed
which check for consistencies in the data. For example, a pro-
gram can be written to check if the grid coordinates specified in.
the data set which identify polluting sources spatially are within
appropriate numerical limits and seem reasonable in the context
of land use patterns existing. Is an industrial establishment
located in the center of a residential area, or is that an error?
For some uses, computer mapping procedures are especially valuable.
7-46
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48. The ratings are on a five-point scale. If "5" is designated to
mean excellent data and "1" to mean poor data, with "3" as an
average, then the overall rating is not impressive. Examining
63 industrial processes and combustion activities from six SIC
two digit codes the overall average is 3.2, slightly above the
numeric designation for average. Clearly, the rather subjective
nature of the rating system, as discussed in the Compilation of
Air Pollutant Emission Factors 1-2, can only contribute to the
belief that better measurement is important. The sources of this
analysis are Compilation of Air Pollutant Emission Factors, and
H.C. Wohlers et al., A Rapid Emission Survey Procedure for In-
dustrial Air Pollutants, 19 J. Air Pollution Control Ass'n.
309-14 (No. 15 1969).
7-47
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CHAPTER EIGHT
THE DISPERSION OF POLLUTANTS*
The pollutants generated by a land use and transportation configur-
ation are dispersed into the atmosphere and carried to the receptor popu-
lation through meteorological influences. Dispersion models which pre-
dict pollutant concentrations resulting from a defined set of sources
are available to the urban planner and policy-maker. This chapter is
directed toward: (1) explaining meteorological variables that affect the
transport and diffusion of pollutants, (2) developing an understanding
of applied dispersion models, and (3) discussing the validity and
measurement problems that circumscribe model utilization and create
the need to examine alternative strategies. The critical question cen-
ters on the appropriate role of dispersion modeling, given resource
constraints and the nature of available data, in the context of a legal
and administrative framework for managing air quality.
METEOROLOGY AND DISPERSION
A detailed examination of the complex process of pollutant dispersion
is beyond the scope of the presentation here. Researchers in the field
of micrometeorology have developed analytic descriptions of the disper-
sion process. The currently popular applied modeling approach to
*This chapter was written prior to EPA's publication of the Guidelines for
Air Quality Maintenance Planning and Analyses (12 volumes); volumes 4, 6,
and 12 would be particularly relevant to this subject. The intent of the
guidelines is to provide State and local agencies with information and
guidance for the preparation of Air Quality Maintenance Plans required under
40 CFR 51.
8-1
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the atmospheric dispersion process utilizes the Gaussian distribution
equation, discussed in the next section. The discussion of meteorological
variables which affect dispersion will be confined to elements recogniz-
able in the Gaussian-based equation. Fortunately, an understanding of
these model-based meteorological variables can act as a suitable founda-
tion for an understanding of the dispersion process.
Among the meteorological variables that affect the dispersion of
a pollutant from a generating source are: (1) wind direction, (2) wind
speed, and (3) atmospheric stability and turbulence. Wind direction is a
basic variable affecting pollutant dispersion. If the mean wind direc-
tion measured occurs at the height at which pollutant is released, the
pollutant will be in the direction of the observed wind. Wind speed also
affects the dispersion of a pollutant. A wind traveling at twice a cer-
tain speed past an emitting source will only carry half the mass of the
pollutant downwind for any fixed period of time. For example, if a
source such as a smoke stack emits a pollutant continuously at 20 grams
per second and the wind is traveling at one meter per second, then each
meter of plume downwind contains 20 grams of the pollutant. However,
with a five meter per second wind, each meter of plume only contains
four grams. On a general level, pollutant concentration is inversely
proportional to wind speed.
The third variable cited, atmospheric stability and turbulence, is
in reality a descriptive term encompassing a complex set of micrometeoro-
logical forces. There are both vertical and horizontal movements of air
operating as a function of a host of variables: the confluence of these
motions at some point in time is called atmospheric turbulence.
8-2
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Mechanical turbulence refers to those motions of the atmosphere
which result from the roughness of the surface over which the air passes.
Generally, the greater the amount of roughness the greater the mechani-
cal turbulence. In turn, the greater the turbulence the greater the
dispersion of the pollutant. It has been suggested that one of the
objectives of the planner interested in shaping urban structure to mini-
2
mize air pollution effects is to increase wind turbulence. Increasing
the roughness of urban structure might mean, for example, the utilization
of uneven roof lines. It is argued that uneven roof lines would cause a
complex structure of eddy currents to be developed. Uneven roof lines,
"rougher" than roof lines all the same height, would cause greater mech-
anical turbulence.
Unfortunately, it has also been suggested that uneven city roof lines
do more than to increase turbulence. They also increase frictional drag
3
on the flowing air beyond what occurs with even roof lines. This
increased drag reduces wind speed which in turn has the effect of reduc-
ing turbulence. Thus, the joint effects of increased turbulence and
increased frictional drag may well be that uneven roof lines are no
better or worse than even roof lines. This illustration points out that
roughness of surface per se is no guarantee of increased turbulence.
The frictional properties of air must also be considered. The illustration
also indicates some of the complexity involved in examining urban micro-
meteorological conditions.
Thermal turbulence relates to the level of atmospheric stability.
Solar radiation heats the earth's surface during the day. Depending on
the time of year and wind conditions, vertical motions in the air will
occur. If, as occurs on clear summer days, a parcel of warm air at the
5-3
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earth's surface rises because the parcel is warmer than the ambient
air surrounding it, strong vertical motions take place. In this situ-
ation, the air is said to be unstable and thermal turbulence occurs.
At night, however, the earth gives off heat. Without solar radiation
to replace the lost heat, the air at the earth's surface cools resulting
in a stable atmospheric condition. There is little thermal-induced
turbulence and much stability in this situation.
The role of wind speed and wind direction in the dispersion process
are easily understood. However, the relationship between turbulence
and stability, and the complex forces operating, are not so easily
comprehended. Pasquill developed a set of stability categories for
different atmospheric conditions which can aid in illuminating these
4
complex relationships. In Table 8-1, six stability categories, from
stable to very unstable, are related to two variables which are prime
determinants of the stability class of the surface ground layer at any
particular time. The most unstable conditions, where strong vertical
motions of the air occur, are found during daylight hours on a bright
summer day with low wind speeds. Correspondingly, the most stable
conditions exist on cloudy nights of very low wind speed.
Atmospheric stability, then, is a function of wind speed and the
amount of solar radiation present. In turn, atmospheric stability
affects the mixing height, which refers to the distance from the ground
within which pollutants are confined. In Figure 8-1, a graphic presen-
tation of the "box" model can be seen.^ Conceptually simple, the box
model highlights the important fact that pollutants cannot migrate up-
ward for an infinite distance. A temperature inversion occurs when
8-4
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Table 8-1 Stability Classes
Surface wind
speed at 10m
(m/sec)
2
2-3
3-5
5-6
6
Day
Incoming solar radiation
Strong Moderate Slight
A
A-B
B
C
C
A-B
B
B-C
C-D
D
B
C
C
D
D
Night
Thinly overcast or 3/8
4/8 low cloud cloud
E F
D E
D D
D D
A: very unstable
B: moderately unstable
C: weakly unstable
D: neutral
E: weakly stable
F: stable
The neutral class, D, should be assumed for overcast conditions during
day or night.
SOURCE: L. T. Fan and Y. Horie, Review of Atmospheric Dispersion and
Urban Air Pollution Models, CRC Critical Reviews in
Environmental Control 434 (October 1971).
8-5
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Figure 8-1
'Box" Diffusion Model
Wind velocity u
/
Top of mixing layer
Equilibrium
concentration X
Area source strength Q
Ground
mass
time
^_x area
SOURCE: Robert J. Bibbero, Systems Approach Toward Nationwide
Air Pollution Control, Mathematical Models. 8 IEEE Spectrum
48 (No. 12 December 1971).
-------
cool air at the surface is trapped below warmer air above and cannot rise.
While mixing height will be, under unstable conditions, quite high,
stable nighttime conditions can produce a low mixing height, thus con-
fining pollutants generated within a small volume of air above a city.
MODELING ATMOSPHERIC DISPERSION
There are a. set of techniques which have been developed to calcu-
late the amount of pollutant at a receptor point dispersed by various
sources. Our purpose here is not to develop a detailed examination of
this complex area. Rather, the focus will be on a particular dis-
persion model most widely used currently for policy and programing pur-
poses. This model is based on the Gaussian diffusion equation. The
term "Gaussian" is applied to the model because of the assumption that
a pollutant mass emitted from an elevated source will distribute itself
according to the normal, or "bell-shaped," distribution in the vertical
and horizontal directions about the mean wind direction. As can be seen
in Figure 8-2, a stack emitting a gaseous pollutant, such as sulfur
dioxide, will affect an area downwind of some considerable size.
The basic equation for a single continuous-emitting elevated source,
where concentrations will be estimated at ground level, is:
C = 2 exP - H2 - y2 (8.1)
iryOyOz ^ 2
2a 2oy
Li
where:
C: Concentration of pollutant in weight per volume
Q: Quantity emitted by the source per time period
p: Mean wind speed in a specific direction area in
a time period
3-7
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Figure 8-2
Gaussian Diffusion from a Point Source
-x Wind
H
Plume "''*•-•'.»;.:{,..
SOURCE: Robert J. Bibbero, Systems Approach Toward Nationwide
Air Pollution Control, Mathematical Models, 8 IEEE Spectrum
49 (No. 12 December 1971).
-------
H: The effective height of the emission at the source
y: The perpendicular distance from the centerline of
the downwind plume spread to the receptor
az,°y: The dispersion of the pollutant in vertical and
horizontal directions at the distance downwind
between the source and the receptor
Basically, a concentration of a pollutant, in terms of a specific
amount of a gas or aerosol (particles less than about 1000 microns in dia-
meter) per unit volume, at a point directly downwind is a function of:
(1) quantity emitted, (2) wind speed, (3) the effective height of emission,
and (4) the dispersion of the pollutant in vertical and horizontal direc-
tions. As discussed earlier, wind speed and atmospheric stability, the
essential elements of the transport and diffusion process, are embodied
in Equation 8.1. Examining these four variables in greater detail will
allow a deeper understanding of the Gaussian-based ecruation.
The quantity emitted during some time period (Q) must be properly
estimated. In Chapter Seven there was an extended discussion of the
potential errors attached to emissions generation analysis from land use
and transportation system configurations. In the multiple-source dis-
persion models of interest on a regional level, there is the likelihood
of a systematic under-estimation of pollutants generated as well as ran-
8
dom measurement error. It will also be recalled that there are three
basic types of pollutant sources -- point, line, and area. The neces-
sary dispersion equations for all three types of sources are readily
9
available.
The typical regional multiple-source dispersion model will include
procedures to separate sources into point, line and area sources. For
example, the Martin-Tikvart multiple-source dispersion model treats
sources generating more than 100 tons of total pollutants as point
8-9
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10
sources. Other relatively low-level emitters, such as residential
and commercial areas, are treated as area sources, where emissions
are assumed to be generated at a constant rate across the surface of
the defined parcel. Finally, highways are treated as line sources, where
emissions are assumed to be a function of both a -tine period and a
length of the line segment. For example, the number of grams of carbon
monoxide generated by cars, trucks and buses per second per meter of
roadway length would be a typical input.
To utilize the appropriate type of dispersion model -- point, line
or area -- the emissions data collected will have to meet the criteria re-
quired by each of the models. For example, to know how many pounds of
sulfur dioxide are emitted yearly by a single-family oil-heated resi-
dence is not sufficient for an area source calculation. Rather, these
emissions per residence would have to be introduced into an equation
which includes the number of residences within the defined area in order
to calculate the pounds emitted yearly by the defined area as a total.
This example, of course, relates back to the chapter on emissions gener-
ation. Estimates of the quantities of the pollutants emitted must be of
sufficient quality and must be specified in the appropriate manner. One can
easily see that the amount of pollutants emitted will effect the quality of
air downwind. In point of fact, with everything else held constant in
Equation 8.1, twice the quantity emitted will produce twice the concentration
at the receptor point downwind.
The second variable affecting the concentration at a receptor point
is '-.and speed in a particular direction averaged over sore time period.
The relationships between wind speeds and concentrations are not straight-
forward. The wind speed variable is built directly into the denominator
8-10
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of the Gaussian equation, implying an inverse correlation between wind
speed and concentration levels. However, wind speed is also a variable
in the smoke rise equations which relate to the effective height of
the emission (H). If the source is at ground level, then the calculations
do not include the exponential calculation involving the effective
height variable. In this case, concentration at a receptor point down-
wind is inversely proportional to wind speed, as was suggested in an
earlier section on meteorology. Examples of ground-level emitting sources
are highways and burning dumps.
There are two other variables which are also important in the calcu-
lation of pollutant concentrations using the Gaussian dispersion equation.
These variables are the effective height of the emission at the source (H)
and the dispersion of the pollutant in the vertical and horizontal direc-
tions (a , az). The effective height of the emission for an elevated
source is not the height of the stack itself. Equations, such as developed
11
by Holland, will calculate the rise of the plume above the stack. The
dispersion of pollutants in the vertical and horizontal directions has been
analyzed with the result that if atmospheric stability can be classified,
12
the dispersions can be easily calculated.
The Gaussian equation contains many of the variables which affect
the transport and diffusion of pollutants in the atmosphere. Models
based on the Gaussian framework are currently the most popular in the
13
air quality management field. The continuing hints in the literature
that the Gaussian model will be replaced by a better model has not yet
been accompanied by widely-used operational models of a "better" non-
Gaussian variety. Since the focus is on operational modeling as it
relates to urban planning and programmingrthere is a justifiable need to
8-11
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concentrate on the Gaussian-based models. The next section pursues
the question of the ability of dispersion models to predict pollutant
concentrations accurately focusing on the Gaussian-based dispersion
model, although the methodology utilized and the general conclusions
can be extended to the full spectrum of complex models of atmospheric
dispersion.
VALIDITY AND MEASUREMENT PROBLEMS
The extent to which a dispersion model will be utilized in an urban
planning context depends largely on how well the model can operate as
a basis for decision-making. Since resources expended to develop the
data base and to operate the model will be justified in terms of results,
then validity of the model and the measurement of the data utilized be-
come critical issues. Questions can be asked about the accuracy and
relevancy of dispersion models for use in planning for improvement or
maintenance of air quality. An attempt to answer these questions will
form the basis of the discussion which follows.
A planner only needs to purchase the level of accuracy in the model
which is necessary for the use to which the model will be put. For
example, to know that a model may be accurate within a factor of two
15
is unimportant in itself. However, if the Gaussian dispersion model
estimates of a proposed highway extension are used to indicate whether
or not the additional carbon monoxide concentrations, when summed with
existing background concentrations, will or will not exceed Federal
standards of 15 parts per million for an 8 hour average at a receptor near
the roadway, then the question of accuracy takes on more flavor. If the
background level is 4 parts per million and the estimated addition from
-------
the highway is 9 parts per million, then the total is 13 parts per million
within the 8 hour standard. If, however, the model under-estimated by
a factor of two and the addition were really on the order of 18 parts per
million, then the background level plus the additional monoxide concen-
tration would total 22 parts per million. This is well over the Federal
standard for an 8 hour average.
This hypothetical example about the accuracy of dispersion models
in, determining violations of Federal air quality standards can be further
illuminated by empirical studies in the area. Generally, the amount of
variation explained in the correlation of observed to calculated annual
values of sulfur dioxides and particulates range from between 30 percent
16
and 90 percent. On a different level, recent work has indicated that
monitoring station data may not be reflective of actual concentrations
1 reathed by urban populations. Wayne Ott and Rolf Eliassen found that
carbon monoxide concentrations on downtown sidewalks were anywhere from
1.4 to 3.0 times higher than concentrations measured at a downtown moni-
17
toring station. Thus, while monitoring station data may indicate
that a particular location meets air quality standards, it may indeed be
the case that the population is breathing air that is in violation of
federal regulations.
Types of Error
Errors in the outputs from dispersion modeling are a joint function of
the quality of both the data and the model. Basically, there are two
general kinds of error involved in the data collection process -- sampling
error and non-sampling error. Whenever data are collected on only a por-
tion of all potential objects in some universe, there is the possibility
that the sample drawn is not representative. Sampling error, then, occurs
J-13
-------
because of the variability inherent in the selection of a group from a
larger universe: the sample mean of some variable will not always be
equal to the universe mean of that variable. Probability theory, how-
ever, allows us to make certain statements about the nature and distri-
bution of repeated sample values about a universe parameter.
Non-sampling errors occur because of the imperfection of the data
gathering and handling process. Measurements are only accurate to a
specific level. Whether one samples a fraction of a universe, or calcu-
lates a parameter using all the elements in the universe, non-sampling
error will still exist. Unfortunately, it is not easy to separate sam-
pling error from non-sampling error in the typical situation where sample
surveys are taken. As was already discussed in Chapter Seven, quantities
emitted from the stacks of plants of a particular industrial class are
sampled and averaged. The emission factors generated are then extra-
polated to the entire class. Does one attribute any divergence between
quantities emitted by two different stacks of the same industrial class
to sample variability or to measurement error, or to both?
The discussion of error becomes more complex when one realizes
that there are two types of sampling errors -- random and systematic.
The random errors are those encompassed by the process of statistical
inference, where it is assumed that samples will exhibit characteristics
that can be handled through the use of the appropriate statistical dis-
tribution. For example, repeated samples taken of the quantities of
pollutants emitted by a number of stacks randomly selected and repre-
sentative of a particular industry and manufacturing process can be
expected to distribute themselves in some known form about the mean of
the entire universe of stacks for that industry and manufacturing process.
8-14
-------
Through the utilization of appropriate statistical procedures, the
necessary conceptual and methodological tools can be brought to bear
on this problem of random errors. The use of statistical techniques,
however, does require that measurements be made of both central ten-
dency -- usually, the mean -- and dispersion -- for example, the
standard deviation. Unfortunately, as was suggested in Chapter Seven,
much air quality management data is not presented with both estimates
of the mean and standard deviation.
Systematic errors, on the other hand, occur when there are biases
in sample selection. These biases will virtually insure that the sample
was drawn. As already suggested, emissions inventories are systematically
biased and underestimate emissions in the real world because some emitting
18
sources inevitably will be missed. While random errors can be handled
through the use of the appropriate statistical technique, systematic errors
are not so easily overcome. Only careful and continuous monitoring of
sampling procedures can reduce the effect of systematic errors on air
quality management data.
Both sampling and non-sampling errors will be designated as measure-
ment error in this study. Thus, any error associated with the generation
of air quality data, whether the error be a function of the sample, the
measurement instrument, or the data handling process, will be considered
as a measurement error. In mathematical terms, measurement error will
be incorporated in our analysis by placing an interval about the point
estimate of the variable under examination. For example, a stack emitting
25 tons of sulfur dioxide a year would be said to really be emitting
19
25 (±5) tons yearly. By broadening the definition of measurement error,
8-15
-------
a distinction can be made between errors associated with the data (measure-
ment errors) and errors related to the model into which the data are placed
(specification errors). Hence, specification errors do not refer to the
collection and manipulation process itself. Rather., specification errors
refer to the quality of the model in which the data will be utilized. A
model is not properly specified if significant explanatory variables have
been either omitted or not placed into the equations in the appropriate way.
For example, a model of industrial location might be improperly specified
if a variable describing the access to the raw materials required for pro-
duction were not included somewhere in the model equations. Improper
specification might also occur if the access variable was included but
placed in an equation as straight numeric values rather than in its more
appropriate logarithmic form.
Operationally, specification error is only determined by the running
of the model with empirical data. The properly specified model is one
that will explain a significant amount of variation in real world data.
For purposes here, a significant amount of variation, conceived in terms
2 20
of the coefficient of determination (R ), is 80 or 90 percent. As
suggested earlier, values of 30 to 90 percent explained variation have
been calculated for atmospheric dispersion models. Thus, while some
empirical validations of dispersion models approach the 80 or 90
percent criterion suggested here, other validations have produced ex-
planatory powers far below the criterion level.
There are two reasons why models of complex phenomena, such as the
atmospheric dispersion process, seldom yield explanatory power at the
80 or 90 percent level. First, the researcher often has great difficulty
-------
in developing a properly specified model which can handle the richness
and complexity of real world systems. Second, measurement error in
the data collection and analysis phase will contribute to the problem of
correctly estimating real world data. For example, a researcher develop-
ing a dispersion model which estimates the pollutant concentrations at
a receptor point has to deal with both appropriate specification of com-
plex meteorological phenomena and measurement error in input variables.
If certain of the input variables are systematically biased, the task
of the researcher in developing an adequate model is made more difficult.
Error Propagation: Single Sources
The continual development of atmospheric dispersion models will
probably mean a corollary reduction in specification error. The develop-
ment of the instantaneous puff Gaussian dispersion model for short-term
pollutant concentration estimates is a logical outgrowth of earlier work
and an example of how research can reduce specification error in a basic
21
model framework. However, there is the continuing problem with measure-
ment error. Assuming a model is perfectly specified, where the model
is an exact predictor of the real world values taken by some variable,
then measurement error in the input variable will produce error in the
output variable.
For a single equation model relating a dependent, or output, variable
to a set of independent, or input variables,
y = f (x , x , x , ,x )
123 n
there exists a well-known error propagation formula. Of course, models
are seldom perfectly specified and thus measurement error is only part of
the total error potential in model calculations. The measurement error
-------
propagation formula is of the following form:
I fx, ^ ^ ^ r- (8.2)
7
Where:
e2 : The square of the error associated with the output variable y.
f , f : The partial derivative of the function with respect to
•&- * J\. •
ex-, ex- : The errors associated with the x^, x^ parameters.
TJ_. : The simple product-moment correlation coefficient.
This model is based on the notation of William Alonso, but is not the
9 "7
Alonso model as presented. The correlation coefficient in the equation
is utilized as an indicator of the amount of linear correlation between
independent variables. As such, the use of the equation should be limited
to linear equations, but Alonso claims that the equation contains a degree
of robustness that makes the equation useful in the analysis on any single-
equation model.
One can see that where there is no correlation between the indepen-
dent variables,
r- =0 for i ^ j
XJ
and, of course,
r^ - = 1.0 for i = j
then the Equation (8.2) above reduces to:
e2 = y ŁY 2 eY 2 (8.3)
y i xi xi
Utilizing Equations 8.2 and 8.3, a simple example can indicate the
magnitude of error generated in the output of a single-source Gaussian
equation dispersion model from preordained estimates of measurement
error in the input variables. A burning dump emits oxides of nitrogen,
-------
and an estimate of the ground-level concentrations three kilometers
2 T
directly downwind is sought. This is a particularly simple example,
with no elevated source and the receptor at ground level directly in the
center of the wind vector. The dispersion equation, then, is simply
C = Q (8.4)
TT 0y 0Z P
The following values and associated errors are placed in the
equation:
Q = 3 (+.3) grams per second
ay = 190 (+19) meters
az = 65 (+6.5) meters
M = 7 (+.7) meters per second
Through substitution in the dispersion equation,
C = 5
IT (190) (65) (7)
then the point estimate of the amount of oxides of nitrogen found 3
kilometers downwind is
C = 1.1 x 10*5 grams per cubic meter
The error attached to the four variables in the equation are each ten
percent of the point estimates in the example. These errors may be
thought of as standard deviations about the variable mean. In the long
run, assuming that the measurements taken of a variable are normally
distributed, two-thirds of the measurements will be located within the
interval defined by the error estimate. Hence, in repeatedly sampling
the quantity of oxides of nitrogen emitted by the burning dump one would
expect to find a mean value of 3 grams per second, with two-thirds of the
measured quantities between 2.7 and 3.3 grams per second.
-------
In the single-source case, the error propagation Equation 8.2 will
be utilized because of the correlation between independent variables.
More specifically, there is a very strong positive correlation (r =.998)
between the horizontal (oy) and the vertical (az) dispersion estimates.
It is assumed that the other variables are not correlated. Taking the
appropriate partial derivatives with respect to each of the parameters
and utilizing ten percent error values for each of four independent vari-
ables, then substituting into the following equation:
4 4
e
i Xj
Where:
r-j_. = 1.0 for i = j
= .998
and all other correlation coefficients are zero means that:
e^ = .71 x 10"11
e = .27 x 1(T5
c
Recalling that
C = 1.1 x 10"5
then the percentage of error in the output is:
er .27 x 10"5
-C- = - r - = -24
1.1 x 10"b
Roughly, then, ten per cent error estimates about the central values of
the four independent variables of the single-equation model generates
24 per cent error in the output variable, the concentration of pollutants
downwind .
8-20
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Consider the case where errors are on the order of 50 per cent of
the values in the dump-burning example. Then, using the same formula,
e = 1.3 x 10~5
c
Here it can be seen that the error associated with the output variable
is larger than the output itself. Hence
6c _ 1.3 x 10'5 _ -j 71
___ - - ±.Z.L
L 1.1 x 10"b
There is about 120 per cent error in the measure of pollutant concentrations
if each input variable has an error attached of 50 per cent. Thus, stan-
dard deviations half the size of the mean value of the independent vari-
able will generate a standard deviation in the output larger than the ex-
pected value itself.
In choosing a relatively simple case, certain complexities have been
left out which suggest that measurement error is even a more serious
problem than has been shown here. For the typical single-source calcu-
lation exponential elements must be included to account for an elevated
source and to permit calculations for receptors not directly downwind.
These added variables will increase the potential arv;v;it of error in the
output exactly because each variable will itself contribute some amount
of error.
Error Propagation: Multiple Sources
As contrasted with the single-source models which calculate the
dispersion of pollutants from only one source, multiple-source dispersion
models estimate pollutant concentrations from a series of point, line and
area sources. The error propagation potential of multiple-source models
is best examined through an example. The problem is to determine the
-------
concentration of oxides of nitrogen at a receptor point in a region
from all significant point sources. Assuming that there are only three
sources, then the error associated with the estimate of concentration
can be determined.
The calculation of concentrations at the receptor point basically
followed the logical structure of multiple-source dispersion models.
Additivity of the concentration levels at the receptor contributed by
each of the sources is assumed. Furthermore, it is assumed that the back-
ground level of oxides of nitrogen is negligible. It follows then that:
Cm = C^ + CT> + Cp (8.5)
where:
Gj> : Concentration from all sources at a receptor
point
C., CB, Cp : Concentrations contributed respectively
by sources A, B, and C at receptor point.
The burning dump will be designated as source A. The same amount
of absolute error occurring in the calculation of the concentration of
oxides of nitrogen from the dump when the input variables were assumed
to each have 10 percent measurement error will be used. Hence, our source
concentrations are:
C. = 1.1 (±.27) x 10~5 grains per cubic meter (gm"3)
CB = 3.0 (+.27) x 10"5 gnf3
CG = 4.0 (+.27) x 10"5 gnf3
Assuming that:
r- =0 for i j- j
then Equation (8.3) will be used:
ey2 = I fx.2 ex.2
8-22
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The partial derivatives of Equation (8-5) are all unity. Hence the error
propagation formula (8.3) becomes
e2 = [(.27)2 + (.27)2 + (.27)2] x 10~5
dc = .47 x 10"5 gm
From Equation (8.5) the total concentration at the receptor point from
the sources A, B, and C can be calculated:
CT = 8.1 x 10"5 gm"3
The calculation of the per cent error in the output from three sources,
ec
T = .47 x 10"b
CT 8.1 x 10-b ~ -06
shows the relative benionness, to use William Alonso's lanouaae with
which the error propagation formula treats additive equations. The
relatively small measurement errors in the input variables, 10 percent
for the burning dump source and less than 10 percent for the other two
unspecified sources, has produced a relatively small error in the
output variable. Note, however, that the absolute magnitude of error
for total concentration does increase. We shall see the implications of
this increase in an analysis of larger values of measurement error.
When the input variables have measurement errors of 50 percent of
the central values, then it will be recalled that the absolute amount
of error in the concentrations of oxides of nitrogen was 1.3 x 10"-3
grams per cubic meter. Utilizing this amount of error about each of the
three sources of oxides of nitrogen, then
e2 = [(1.3)2 + (1.3)2 + (1.3)2] x ID'5
er = 2.4 x 10"5 gm"3
\_JT~1
8-23
-------
Hence, the estimate of nitrogen oxide concentrations at the receptor point
is:
CT = 8.1 (+2.4) x 1(T5 gm"3)
Assuming that this concentration is a yearly average, then how does
it relate to national ambient air quality standards? The federal primary
standard for nitrogen dioxide for an annual average (arithmetic mean) is
100 micrograms per cubic meter: this is equivalent: to .05 parts per
9 f\
million. Re-writing the federal standard for comparability, then:
Federal standard = 10 x 10"° gm~3
The estimate of concentrations at the receptor point from the three
sources,
CT = 8.1 x 10~5 gm"3
does not exceed the federal standard.
However, if the error estimate about the expected concentration
level at the receptor is a standard deviation and normality of error
distribution about the central value is assumed, "then there is a 21
27
percent chance that the federal standard is being exceeded. Basically,
there is one chance in five that the federal standard is being exceeded,
even though the concentration at the receptor point is below the federal
standard. Granting that this is an artificial example, it is entirely
plausible that one could attach the error value of 1.3 x 10 gm to
each of the three sources. Given the error propagation formula and a
calculated concentration of 8.1 x gm" , the potential of exceeding the
federal standard is one chance in five.
The Implications of Measurement Error
There are a number of implications of this analysis of measurement
error propagation. The planner or air pollution specialist must recognize
8-24
-------
the problem of measurement error in dispersion calculations. This means
that the quality of the data utilized in dispersion equations must be of
sufficient caliber to generate estimates of concentrations at a receptor
point which do not have error intervals so large as to make the expected
central values relatively meaningless. As was shown, federal air quality
standards may be exceeded even when comparisons of the expected value
with the standard seemingly indicate no violation.
In estimating current emissions, an initial step in improving
decision-making would be the publication of emission factors with sample
size and estimates of variance about expected values included. This
beginning step could be followed by the development of a more comprehen-
sive set of emission factors which would be useful to the planner who
is accustomed to dealing with land use categories. Thus, the development
of emission factors directly keyed to residential, commerical and institu-
tional square footage estimates would be an aid to the land use planner.
In projecting future emissions from a land use and transportation
system, the question of measurement error becomes even more critical.
Not only do emission factors require estimates of variance, but the like-
lihood of the expected future land use and transportation system config-
uration must also be estimated. Obviously, the estimates of measurement
error for quantities of pollutants emitted from expected future land use
and transportation configurations would be quite large. This suggests that
simple models of dispersion may be better suited to projecting future
emissions than more complex versions.
Alonso has noted, and it has been reaffirmed here, that additive
models are superior to multiplicative models in terms of dampening error
28
about output estimates. The single-source and multiple-source examples
presented earlier point out the advantages of additive models. Alonso has
8-25
-------
also suggested, and similarly emphasized here, that simple models with
relatively few variables are often preferable to complex models with
many variables when there is the potential for significant measurement
error. Basically, every additive variable entered into a model will in-
crease the potential for error in the output estimates.
The model-builder, then, faces a difficult balancing task. While
increasing model complexity by using more variables may increase error
in the output variable, it is also true that the more complex model may
better represent the real world phenomena under study. Thus, a more
complex model may have less specification error. In the final analysis,
the quality of the data must be balanced off against the quality of the
model. In some situations, the benefits gained in using a more complex
model outweigh the error propagation potential of utilizing additional
variables. For example, a mathematically more complex dispersion
model for estimating pollutant concentrations on a short-term basis
(daily periods or less), the "instantaneous puff" Gaussian Model, has
been shown to predict better than the "steady-state" version.^ On the
other hand, it has been argued that a very simple area source dispersion
model can be constructed which is comparable in prediction ability to
the area source version of the Gaussian equation."
The modeler is faced with balancing out the effects of specification
and measurement error. If two models appear to do an equal job of pre-
dicting the output variable, then the simpler model should be chosen
to reduce measurement error. This obvious tenet is only true, however,
if the validity of the models have been checked across a set of situations.
To claim that a model explains 75 percent of total variation in the data
-------
based on only one case study is totally inappropriate. That 75 percent
figure is a function of both measurement and specification error. Rather,
a group of studies should be done before a decision about the validity
of the model is reached. Through repeated sampling of the data by per-
forming many validation experiments, the randomness of parameter values
resulting from measurement error is dampened. This dampening insures
that the model's specification error can be evaluated more successfully.
In conclusion, it should be obvious by this point that there is an
important link between the quality of the emissions generation data
available and the appropriate complexity of the dispersion equations
utilized to estimate air quality. The urban planner, faced with the
difficult task of estimating future land use patterns and transportation
system developments as a base to emissions estimates, must be particu-
larly sensitive to the problems incurred in utilizing imperfect data.
In the concluding section of this chapter, a set of guidelines will be
developed which will be directed toward the urban planner who must
place quantitative estimates of future air quality within the appropriate
legal and administrative framework.
STRATEGIES FOR PROJECTING AIR QUALITY
An Alternative to Dispersion Modeling
To this date, dispersion modeling to estimate future air quality
has not received universal acceptance. A well-known alternative to dis-
persion modeling is the "rollback" technique. A rollback strategy in-
volves the use of a proportional model which calculates the degree of im-
provement needed in current or projected air quality over a region so
-------
that federal air quality standards are not exceeded.^1 The proportional
model equation is:
p = 4^j- x 10°
where:
P: Percent reduction in pollutant emissions
required to meet air quality standard for a pollutant
A: Existing or projected air quality as measured or
estimated for the location (usually a monitoring
station) with the highest concentration in the region
B: Background concentration of the pollutant
C: The federal standard for the pollutant
The simplicity of the analytic structure of the proportional model is
evident. Aggregate current or future emissions are rolled back on a
percentage basis across the entire region without regard for long-term
average meteorological conditions.
An example taken from the Connecticut Air Quality Implementation
TO
Plan shows how the proportional model could be used. In the Eastern
Connecticut Interstate Air Quality Control Region, the Putnam monitoring
station has the highest annual suspended particulate concentration, 35
micrograms per cubic meter (annual geometric mean). Assuming that the
annual geometric mean of 36 micrograms per cubic meter represents the
background level as measured at Mansfield, and the federal primary
standard is 75 micrograms per cubic meter, then the proportional model
would be calculated as follows:
P = 85 _ 55 x 10° = 20-4 percent
Thus, particulate emissions would have to be rolled back by 20.4
percent. In the region in 1969 it was estimated that 13,702 tons of
8-28
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suspended particulates were emitted. By 1975 it was estimated that
emissions would be reduced through control measures to 4,115 tons.
By 1975, then, there would be a 70 percent reduction in particulate
concentrations, which far exceed?the required rollback of 20.4 percent.
The underlying assumption of the proportional model is that a
percentage rollback from the maximum concentration in a region to the
federal standard requires only that the same percentage reduction
occur for all sources in the region. Obviously, cutting back of sta-
tionary and mobile source emissions will improve air quality, given
relatively fixed meteorological conditions in the long run. However,
depending on the location of the sources which are reduced, air quality
at the maximum concentration monitoring station may or may not be im-
proved enough to meet federal standards. In the Connecticut example,
there are no assurances that a rollback strategy dictating a 20 percent
reduction in total regional emissions would mean a 20 percent reduction
at the Putnam monitoring station. If all the source reductions take
place downwind of the monitoring station, Putnam may still record con-
centrations exceeding the federal standards. In the example, of course,
it was estimated that a 70 percent reduction would be effectuated for
particulates by 1975. It could be easily assumed that an actual 70 per-
cent reduction, when 20 percent is mandated, would probably guarantee
that Putnam would meet the standards. However, without some estimate
of the atmospheric dispersion of pollutants resulting from source location
and meteorological conditions, any conclusions would be somewhat speculative
In spite of the inherent inability of the proportional model to deal
analytically with meteorological conditions, it has received a good deal
of attention in air quality implementation plans of different states.
8-29
-------
The reasons for this utilization are obvious. The proportional model
does not require the monitoring data, meteorological information, or
economic and human resources required in the atmospheric dispersion
models. The field-level engineer and planner often has a good sense
of the usefulness of a methodology.-^ Resistance to more complex
methodologies can often be based in more than just a preference for the
status quo. In the case of dispersion modeling versus proportional
modeling, data availability and a resource base are crucial determinates
in methodology selection.
This is not to say that dispersion modeling has not been performed
in state implementation plans. Dispersion modeling has been used for
sulfur oxides and particulates by several states. Both Connecticut and
Illinois, for example, use the Air Quality Display Model (AQDM) which is
based on the Gaussian diffusion equation. The reason why the use of
dispersion modeling has been confined to these; pollutants is data
availability. While monitoring has been carried on extensively for
sulfur oxides and particulates, this is not genera], ly the case for carbon
monoxide, photochemical oxidants, hydrocarbons, and nitrogen dioxide.
While Connecticut and Illinois, for example, utilized dispersion
modeling satisfactorily, Maryland had a different experience. Attempts
at using the AQDM model in the Baltimore region were not satisfactory.
The correlations between the observed and expected pollutant concentrations
were low.
Guidelines for Utilization of Techniques
General Observations - In summarizing the discussions there are
8-30
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four general observations which can be made. First, the time frame
upon which the study should focus must be clearly specified. It has
been generally assumed that urban planners will focus on long-term
averages, such as yearly or seasonal. At the same time, certain
federal primary or secondary standards may be couched in hourly averages
and have to be translated in long-term averages. Larsen has developed
a model for converting concentration levels from one averaging period to
37
another which may prove useful.
Second, the resource question must be squarely faced. Assuming
that the planner has already available a plan or set of alternative plans
which he would like evaluated in terms of air quality, then the resources
will be directed toward the generation, dispersion and evaluation phase.
Since the Air Quality Display Model (AQDM) is widely available as a
computer package, then it or a similar dispersion model can be used.
The main resource sink, then, will be the estimation of future emissions
from land use data and available current emission inventories. Depend-
ing on resource availability, it may be that while estimates of aggregate
emissions for the region can be calculated, the allocation of these
emissions to areal grids within the region may not be feasible. In this
case, proportional modeling suggests itself as a necessary alternative
to dispersion modeling.
Third, the measurement and validity problems must not be overlooked.
Projecting future land use and transportation system development is a
difficult task, and air quality estimates based on these projections po-
tentially are error-prone. This implies that a systems approach, involving
continual feedback of changes in urban structure as the region moves for-
•7O
ward in time, should form a basic part of the planning process.
-------
Geocoding of current and expected future land uses in the region
should be an integral component of such a systems approach. By con-
tinually updating a computerized land use file and running air quality
models, monitoring station data can be compared with estimated pollutant
concentrations from the models. Continual evaluation of the generation
and dispersion models in this manner, when coupled with continually up-
dated land use data, should do much to dampen the error potential in
39
the models and data utilized.
Finally, the legal and administrative framework within which air
quality management is undertaken must be cognizant of the potential
problems of estimating future pollutant concentrations. This means
that any system of controls directed at improving or maintaining air
quality must take into account the relationships between the different
land uses and how a particular urban configuration jointly emits pollu-
tants. For example, stationary source control, such as through a
permit system, does not really tell the planner the expected quality of
40
the air. Only when the emissions generated by the source are added
to the emissions from other existing sources, and the emissions then
dispersed, is one able to estimate concentrations at selected receptor
points.
Consider, also, the situation of estimating future emissions. A
reasonably accurate development plan for a region will enable the
planner to ascertain where future pollutant concentrations could occur.
The appropriate legal and administrative machinery can be established
to hopefully avoid the development of these pollution "hot spots."
Coordination between the estimation of future air quality from land use
8-32
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and transportation systems and the legal and administrative mechanisms
to insure compliance with federal mandates is a necessary step in sys-
temizing an approach to the air quality problem.
Specific Analytic Alternatives - Depending on available resources,
the study of the air quality impact of a source or set of sources can be
done on a number of levels. For the single-source situation, where the
localized impact of a particular source, such as a new industry, power
plant, or highway, is being examined, there are two basic analytic al-
ternatives. First, the amount of emissions to be generated can be
calculated. If regional air quality, as measured at monitoring stations,
is already in violation of federal standards, then there would be grounds
for denying the source permission to be constructed. It is not possible
to determine, however, from only estimating emissions generated, the
contribution of the source to existing concentrations as measured at
selected receptor points. The second alternative would be, of course,
41
to both generate and disperse the pollutants. It seems particularly
important when analyzing localized concentrations to use a dispersion
model.
For the multiple-source case, where regional air quality is the
focus, three alternative approaches appear reasonable. First, a simple
trend extrapolation can be performed. Population, employment and
vehicle-mile estimates can be extrapolated into the future in terms of
percentage change. These percentage changes in pollution parameters
can then be modified by the projected influence of pollution abatement
technology. Current estimates of air quality, as measured by monitoring
station data, can then be extrapolated into future years as a function of
8-33
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the pollution surrogates, such as population and technology.
A second approach would be to use the proportional model, as earlier
outlined. For this alternative, aggregate future emissions would have
to be estimated for the region, combining current inventory data
with future land use and transportation development. Since emissions
would not have to be estimated on a regional basis, considerable savings
in resources could be expected over the full-blown generation and dis-
persion approach.
The third approach, then, is to estimate future emissions on a sub-
regional basis within the region and disperse the pollutants using
seasonal or annual average meteorological data. This approach utilizes
the most resources of the three alternatives. However, it is the most
powerful in aiding the planner. In particular, the air quality impact of
specific projects can be analyzed in the context, of existing and pro-
posed future land use configurations. Given that the problems of validity
and measurement are squarely faced, the planner can utilize the results
of generation and dispersion analysis as approximations of what could
happen in future years in terms of air quality. Viewed as an approxi-
mating device, generation and dispersion analysis could form the basis
for the development of a legal and administrative framework for managing
air quality.
PUTTING THE STRATEGIES TO WORK
The strategies suggested above have received only limited applica-
tion. One attempt, utilizing the multiple-source, proportional model,
42
was carried out in Middlesex County, New Jersey. An industrialized,
8-34
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rapidly growing county in the center of the State, Middlesex has a pre-
sent population of approximately 600,000. In very much of a pilot
study, it was concluded that none of the secondary air quality standards
would be met in the year 2000 under either the County's "trend plan"
or its alternative plan. Although the study would have to be redone on
a more comprehensive scale before the analysis could become the basis
for governmental policy, it is not hard to imagine that the tentative
conclusions will be replicated in other rapidly growing parts of the
country. The following chapter looks at some of the first attempts to
come to grips with this problem.
8-35
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NOTES
1. See, in particular, the classic text by O.G. Sutton, Micrometeorology
(1953).
2. Thomas R. McCurdy, Vehicular Emissions and the Location of Highways
in Urban Areas (University Park, Pa.; _1he Center for environmental
Studies, 1969).
3. Peter Rydell and Gretchen Schwarz, Air Pollution and Urban Form:
A Review of Current Literature, 34 J. Amer. Inst. of Planners
115-20 (No. 2 March 1968).
4. See F. Pasquill, Atmospheric Diffusion (1962).
5. For further discussion, see Robert J. Bibbero, Systems Approach
Toward Nationwide Air Pollution Control, Mathematical Models, 8
IEEE Spectrum 47-58 (No. 12 December 1971).
6. For a further discussion of mixing heights, see George C. Holzworth,
Mixing Heights, Wind Speeds, and Potential for Urban Air Pollution
Throughout the Contiguous United States, particularly 3-7 (1972),
7. A basic reference outlining the Gaussian model is D. Bruce Turner,
Workbook of Atmospheric Dispersion Estimates (revised 1970) [Here-
after cited as Turner].
8. An excellent synopsis of the development of the multiple-source
dispersion model can be found in Arthur C. Stem ed., Proceedings
of Symposium of Multiple-Source Urban Diffusion Models (AP-42
1970) [Hereafter cited as Stern].
9. See Turner 39-41, for an introduction to area and line source
pollutant calculations.
10. D.O. Martin, An Urban Diffusion Model for Estimating Long-Term
Average Values of Air Quality, 21 J. Air Pollution Control Ass'n.
16-9 (No. 1 January 1971).
11. See Turner 31-34.
12. See, for example, Turner for an introduction to the concept of
atmospheric stability classes and their relationship to vertical and
horizontal dispersion of pollutants.
13. The most widely used dispersion model of atmospheric dispersion is
based on the structure developed by D.O. Martin supra note 10.
The Air Quality Display Model (AQDM) is a computerized version of
the Gaussian-based model developed by Martin. This model predicts
long-term average air quality from multiple sources located within
the study area.
-------
14. See L.T. Fan and Y. Horie, Review of Atmospheric Dispersion and Urban
Pollution Models, CRC Critical Reviews in Environmental Control
431-57 (October 1971), for an excellent review of specific
analytic solutions to the generalized equation for diffusion. Much
of the current work centers on modeling the reactive processes which
occur between pollutants.
15. Turner 7-10.
16. See Martin, for example, where the coefficient of determination was
improved from 36 percent to 71 percent by removing five of the 40
data points relating predicted to observed sulfur dioxide concentra-
tions. Unpublished work from the U.S. Environmental Protection Agency
indicates that this 30 to 90 percent range in explained variation,
relating predicted to observed pollutant concentrations at receptor
points, usually monitoring stations, is reasonable.
17. Wayne Ott and Rolf Eliassen, An Urban Survey Technique for Measuring
the Spatial Variation of Carbon Monoxide Concentrations in Cities,
paper presented at the annual meetings of the Air Pollution Control
Ass'n. (June 1972).
18. See Glenn Hilst, Sensitivities of Air Quality Prediction to Input
Errors and Uncertainties, in Stern 8-5.
19. The placing of a numeric interval about a point estimate is not a
standard practice in air quality management literature.
20. See any standard statistical text for a discussion of the coefficient
of determination. Two basic well-known reference works are Frederick
E. Croxton, Dudley J. Cowden and Sidney Klein, Applied General
Statistics (1967), and Hubert M. Blalock, Jr., Social Statistics
(1972). It should be noted that there is no one value of R^ which
can be deemed as the breakpoint between the significant and the
non-significant amounts of variation explained. In the physical
sciences, high R2 values approaching 100 percent are common, while
in the social sciences, value of 20 or 30 percent are often cited
as important. Note, also, that the use of the term "significant"
in the discussion here is not meant to be confused with the more
formal term "statistical significance" found in inferential statistics.
21. See D.M. Rote, J.W. Gudenas and L.A. Conley, studies of the Argonne
Integrated-Puff Model (Publication No. ANL/ES-9 1971) [Hereafter
cited as Rote].
22. William Alonso, Predicting Best with Imperfect Data, 34 J. Amer.
Inst. of Planners 248-55 (No. 4 1968) [Hereafter cited as Alonso].
Note, however, that as presented the Alonso model is incorrect.
In the case where r^- ^ 0, the model as displayed in the Alonso
paper double-counts the contribution to error when i=j. In other
words, fY fv e. e. r.. is squared twice, rather than the correct
' xi xi i i 11 n
8-37
-------
situation where the equation is only squared once. For comparison,
see the presentation in E.B. Wilson, Jr., An Introduction to Scientific
Research 272-4 (1952).
23. This example is drawn from Turner ch. 7.
24. As an illustration of the intercorrelation between the horizontal
and vertical dispersion variables, a correlational analysis was
run using estimates of dispersion from Figures 3-2 and 3-3 in Turner,
pp. 8-9. For stability class D and a sample of 10 observations taken
from .1 kilometer to 1 kilometer by tenths, r = .998,
25. It is readily apparent that there is no correlation between quantity
emitted and the other variables in the equation. Also, for any
particular stability class, there is no correlation between wind
speed and either vertical or horizontal dispersion coefficients.
26. 36 Fed. Reg. 6680 (1971).
27. Using the formula for the calculation of a Z-score,
I = x - x = 10 .-. 8_.JL = 79
s 2.4
then there is a 21 percent chance that the value of 10 is exceeded,
assuming 8.1 as the mean of the distribution.
28. Alonso 250-4.
29. See Rote for a comparison of the integrated-puff model and steady-
state Gaussian-based dispersion models.
30. See the very interesting paper by Stephen R. Hanna, A Simple
Method of Calculating Dispersion from Urban Area Sources, 21 J.
Air Pollution Control Ass'n. 774-7 (No. 12 December 1971).
31. The proportional model is described in the 36 Fed. Reg. 15490
(1971).
32. Department of Environmental Protection, State of Conn., Air
Quality Implementation Plan 150-3, 283.
33. See, for example, the implementation plans of the state of Maryland,
including the Plan for Implementation of the Ambient Air Quality
Standards of the Metropolitan Baltimore Intrastate Air Quality Con-
trol Region (1972).
34. For a devastating critique of the model-building enterprise from
the viewpoint of the consumer, see Richard Bolan, New Rules for
Judging Analytical Techniques in Urban Planning, in Analytical
Techniques 75-89 (1970).
8-38
-------
35. The Connecticut use of the dispersion model is discussed in the
implementation plan by the Department of Environmental Protection,
State of Conn., particularly 79-110. The Illinois use of the dis-
persion model is found in State of Illinois Air Pollution Control
Implementation Plan, particularly Section 4.2. The Air Quality
Display Model is discussed in National Air Pollution Control Admini-
stration, Air Quality Display Model (AQDM) (1969).
36. Plan for Implementation of the Ambient Air Quality Standards of the
Metropolitan Baltimore Intrastate Air Quality Control Region 174-7.
37. Ralph I. Larson, A Mathematical Model for Relating Air Quality Mea-
surements to Air Quality Standards (1971).
38. An interesting recent attempt at systematizing feedback processes
is George Chadwick, A Systems View of Planning (1971). See also,
J. Brian McLoughlin, Urban and Regional Planning: A Systems
Approach (1969).
39. The computerized package developed by Environmental Research and
Technology, Inc. for use in air quality analysis of alternative
land use and transportation system configurations operates on a
geocoded file of emitting sources. See the multi-volume research
effort on the Hackensack Meadowlands of New Jersey (ERT Document
No. P-244).
40. Note, however, that the emission from a stationary source can be
modeled and the concentrations resulting examined to determine
air quality violations. A general reference work in permit processing
is Arnold Stein, Guide to Engineering Permit Processing, Environmental
Protection Agency (APTD-1164 1972).
41. See Turner as a basic reference work for the single-source case.
42. The Relationship Between Land Use and Air Pollution in Middlesex
County, New Jersey, Rutgers University, Department of Urban
Planning and Policy Development, (L973).
8-39
-------
-------
CHAPTER NINE
AIR QUALITY MANAGEMENT IN CALIFORNIA
On a state-wide basis California probably has the worst air
pollution problem of any state in the United States. Because of this,
a great deal of attention has been given to programs to deal with the
air pollution problem, and a review of experience in the state can pro-
1
vide useful lessons for the rest of the country. It is therefore in-
teresting to note that in 1972, the state air pollution control agency,
California Air Resources Board (ARE) was told by its technical advisory
committee that major changes in air pollution control plans were necessary
if levels of pollutants acceptable from a health standpoint were to be
achieved and maintained. The committee stated:
Some or all of the following actions will be necessary
if the air quality of the South Coast Basin (Los Angeles
area) is to meet the proposed air quality standards:
Limit the number and use of automobiles, trucks and
aircraft permitted in the basin and substitute alternate
modes of emission-free transportation; reduce emissions
from these sources to levels below those now proposed;
remove or make essentially emission-free all industries
and fossil-fuel power plants in the basin; develop a
9-1
-------
comprehensive, nonpolluting urban transport system;
limit population growth by sharply restricting sub-
division and residential expansion in the basin;
limit commercial and industrial growth to zero-
emission facilities and restrict emissions from
commercial, agricultural, domestic and recreational
2
sources.
Although the ARE has not accepted the position that all of these
limitations are necessary, it is moving forward with a policy that
markedly changes the approach to air quality management in the State.
This approach, commonly called "emission allocation," is the focus
of most of this chapter. The tentative movements of the Bay Area Air
Pollution Control District in San Francisco towards an official policy
on land use planning is also examined.
GOVERNMENTAL STRUCTURE
In California, ARE has the responsibility for the control of motor
vehicle emissions, for coordinating any statewide air pollution control
effort, and for overseeing the activities of the local air pollution con-
trol districts. ARE establishes emission standards and test procedures
for new and used vehicles, and promulgates statewide ambient air quality
standards which include pollutants that are not covered by the national
standards. Among other duties, ARE also advises and assists the local
districts with their pollution control plans and enforcement activities.
Technical assistance, personnel, and equipment are provided to those dis-
tricts that lack the competence for evaluating specific sources for com-
pliance with state or local regulations. It also reviews and can revise
9-2
-------
basinwide implementation plans and local rules and regulations prepared by
the districts. If a district fails to take what the State considers to
be reasonable enforcement action, ARE can take such action.
California enabling legislation resulted in the formation of local
air pollution control districts in about half of the State by 1969 and all
of the State by 1973. The law provides that such districts can be county
districts, multi-county districts, or regional districts, and created
"Basinwide Coordinating Councils" for any of the 11 air basins that in-
clude two or more districts. These councils, comprised of representatives
of the local districts in the basin, perform planning and coordinating
functions mainly related to the basinwide implementation plan. Thus in
California there are a number of basinwide implementation plans in addi-
tion to the statewide general implementation plan prepared by the ARE.
Legal authority to carry out the basinwide plan remains with the local
districts.
Unlike the air pollution control programs in many other states,
the districts have the primary responsibility for the control of emissions
from stationary sources. They do this through the adoption of rules and
regulations governing stationary source emissions, control new sources
through the permit system, and inspect existing sources periodically
to determine rule violations and equipment changes that would affect
air pollution emissions. The districts also do air quality monitoring,
issue and prosecute citations for rule violations, and hold hearings on
citations, permit denials and variances.
Not to be neglected in this structure is the role of the federal
government, particularly the Environmental Protection Agency (EPA). As
has been noted in Chapter 2, EPA's influence over state and local air
9-3
-------
pollution control programs has increased as a result of the 1970 Amend-
ments to the Clean Air Act. A partial listing of EPA's functions in air
pollution control in California include directly controlling sources within
federal jurisdiction, establishing and implementing national policies
that would assist in reducing air pollution, developing control techno-
logies , recommending control strategies, and setting national emission
and air quality standards applicable in the State.
EPA can also promulgate control strategies for the State if
the ones developed by California are not adequate. Such has been
the case for the transportation control strategies and has resulted in
the expression of a great deal of animosity towards EPA by some air pollu-
tion control officials in the State. Reductions in gasoline consumption
and the institution of parking fees, both aimed at reduced use of the
automobile and advocated by EPA for California air basins with a severe
air pollution problem, have not been well received by California elected
officials.
THE STATE IMPLEMENTATION PLAN
Innovative approaches to air quality management directly or indirectly
resulting from the Clean Air Act evolve in a form of learning process
whereby management procedures are proposed internally within air pollution
control agencies, in interagency committee or by other informal means of
9-4
-------
communication, discussed in public hearings, and adopted. In some cases
EPA might suggest guidelines or procedures while in other cases procedures
originate at the state and local levels. It is also not uncommon to have
an independent consultant assist EPA in developing guidelines, and in some
cases to find a consultant assisting a state agency. After some time
the procedure might be revised based on experience gained in application.
It is too early to tell whether this model will be followed complete-
ly in the process of introducing land use controls as a part of air quality
management nationwide, but California seems to be following the basic
elements. Starting from a position of minimal interest in land use plan-
ning, the Air Resources Board has arrived at a position of advocating
the use of land use controls to maintain air quality standards.
An early version of the State General Plan of the Implementation
Plan for Achieving and Maintaining the National Ambient Air Quality
3
Standards in the State of California suggests the earlier attitude.
The Plan suggests that land use controls are a "long term solution"
with "control at the local government level." "Green belts" and "self
contained communities" are mentioned as helpful programs, that are "prob-
5
ably best based on land use decisions at the most local level."
But the Plan also states that "the consideration of air quality as a
factor in land use planning must be made on a regional basis."
A later version of the General Plan still calls for "basic land use
planning at the local level" and land use planning for air pollution
control on the air basin level, but goes on to state that the "carrying
capacity" of air basin needs to be studied and that it may be necessary
to ''limit and regulate" growth patterns, the location of power plants and
9-5
-------
industries, develop a coordinated transportation system, and encourage
o
the preservation of open space. An even later draft version of the
General Plan states that "the Air Resources Board will endeavor to obtain
legislation in 1972 which will require (1) city and county general plans
to include an air quality element, and (2) review of that element at the
state level." The final version concludes that:
"Present state law does not specifically direct planning
agencies to include air pollution in the land use planning
process. Legislation will be needed if local planning
agencies are required to develop land use plans which
include measures to prevent, minimize and reduce air
pollution. The State will adopt criteria for local
agencies to follow and will need authority to review
the local plans. Coupled with the stringent measures
that will be taken to control air pollution from existing
sources, these land use policies further will add to the
State's capability for attaining and maintaining satis-
factory air quality in the metropolitan areas and to
preventing air pollution from becoming a problem in
10
areas where there is a potential but not yet a problem."
These excerpts suggest ARB's seemingly contradictory attitude
that air pollution is a regional problem but that land use control is
a local prerogative -- that is fairly common among air pollution control
personnel. By and large, engineers and scientists, ha,ve little in-
sight into the nature of land use planning and are naturally somewhat
unwilling to disturb what they interpret to be the status quo in a
field that is outside their professional competence. Thus we find that
9-6
-------
in January 1973 the California Legislature enacted Senate Bill 981
(SB 981), which, charged ARB with preparing a report to the Legislature
on proposed guidelines for focusing local land use planning on the abate-
ment of air pollution, and specified that the report be completed by
July 1, 1973.
This approach had some logic since it was very much in keeping with
the way the State has dealt with land use planning during the last decade.
Under State mandate7 California cities and counties are required to develop
a long range general plan composed of seven mandatory elements. Land use,
circulation, housing, and open space elements were to be adopted by
June 30, 1973, and seismic safety, noise, safety, and scenic highway
elements were due in late 1974. Since, as in other parts of the country,
local zoning ordinances and subdivision regulations in California often
have little relation to adopted general plans, the Legislature in 1972
enacted Assembly Bill 1725 requiring zoning ordinances "to be consistent"
with the local general plan by July 1, 1973. In addition, no tentative
or final subdivision map can be approved by a city or county unless it
conforms to the local general plan. Thus, the general plan is an impor-
tant document in the land use planning process in California and is
therefore a seemingly convenient place to introduce air quality consider-
ations. As we will soon find, however, this has not entirely proved to
be the case.
STATE LAND USE PLANNING IN CALIFORNIA
In 1970 the California Legislature enacted legislation estab-
lishing an Office of Planning and Research in the Governor's Office.
The Office is to advise the Governor and the Legislature on matters
9-7
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concerning land use policy and is charged with the task of preparing
a statewide plan and implementation program for the protection of the
State's land and water resources. In cooperation with various State
agencies the Office of Planning and Research has completed a three -
phase study of land use planning in the State. Phase one identified
areas of the State where land use problems have occurred or where there
is a potential for their occurence. Phase two involved the projection
of development trends through the analyses of population growth and
migration patterns. Phase three, completed in 1973, examined alter-
native population and land use policies and their social, environmental
and economic implications. In essence, scenarios were developed of
various possible development patterns. The next step is for the Office
to make proposals with respect to population growth, transportation
policy, urbanization, and the location of polluting industries in the
State. Due in part to budget and staff limitations, this planning
effort cannot be viewed as the basis for a comprehensive state planning
11
effort. Indeed, the various State agencies with functional respon-
sibilities have and are continuing to make decisions that have a con-
siderable land use planning dimension in the absence of a comprehen-
sive state planning process. This is, of course, common in the United
States, but most likely cannot continue to be the case in California
because of the increasingly pervasive set of State environmental regula-
tions impacting land use.
One such regulation is the requirement contained in the California
Environmental Quality Act (CEQA) passed by the legislature in September
12
1970 and patterned after the National Environmental Policy Act. CEQA
9-8
-------
requires all state agencies to prepare Environmental Impact Reports
(EIRs) on their own projects and on federal projects on which state
agencies comment. The requirements of CEQA were expanded, clarified,
and made applicable to local governments by an amendment adopted in 1972.
The changes made in 1972 largely were a result of the "Friends of
Mammoth" decision. Mannoth Lakes are a group of lakes in sparsely
populated Mono County on the Nevada border. The lakes were the site
of a proposed condominium project which many local residents thought
would overload sewage and water supply facilities. Despite their
opposition, the Mono County Planning Commission approved the project
and the County Board of Supervisors upheld the decision.
The citizens who opposed the project formed an association called
"The Friends of Mammoth" and sought a Writ of Mandamus to invalidate the
use permit granted to the developers. The citizen group argued that the
permit was invalid because CEQA's requirement for an environmental impact
report (EIR) had not been met, and argued that CEQA should apply not
only to projects sponsored by government agencies, but also to private
projects requiring governmental approval. The Court of Appeals and the
Superior Court both denied the writ and the case was taken to the Supreme
Court in the Summer of 1972. In its decision the Court stated:
In this instance our task has been considerably
simplified because the Legislature has expressly
set forth its intent in sections 21000 and 21001 of
the act. These two provisions captioned, 'Legislative
Intent' and 'Additional Legislative Intent' contain no
less than 14 references to the concern of the Legis-
9-9
-------
lature with the current deterioration of the environment
...an analytical reading of these sections leads to the
ineluctable conclusion that the Legislature intended to
include within the panoply of the act's provisions,
private activities for which a permit, lease or other
14
entitlement is necessary.
With this decision almost all development in the state fell under
the environmental impact report requirement while prior to this time
public works projects received the most attention. With the decision, the
court threw the construction industry into turmoil and local government
found itself unprepared for a deluge of EIRs. To bring some order to this
confusion, the State Resources Agency hastily developed guidelines for
the preparation and processing of EIRs. The guidelines, issued in Feb-
ruary 1973, summarize the CEQA and cover the two topics of primary concern
15
to local government, the contents and processing of EIRs. While clearly
specifying the decisions and tasks that are to be included in the pro-
cessing of EIRs, the guidelines allowed considerable flexibility for
local governments to devise procedures suited to their own needs. The
result has been a proliferation of new job titles, special committees and,
in some cases, inconsistent procedures in county and municipal government.
The EIR requirement, of course, is in addition to such other requirements
as a sewer permit, a grading permit, a subdivision permit, a business
license tax permit measured by number of dwelling units built, an
16
occupancy permit, and any other special purpose permits.
Ad hoc regulation of land use in the absence of a comprehensive
17
state plan can, of course, continue as it has in the past. But one
9-10
-------
sees in the State an increasing concern with establishing a baseline for
making decisions on environmental management issues that maintains the
tradition of local control but at the same time increases the involvement
of the State in land use decisions. The example that best demonstrates
this trend is the emission allocation procedures proposed by the Air
Resources Board.
EMISSION ALLOCATION
With the passage of Senate Bill 981 the staff of ARB began to
address itself to the question of how air pollution control could be
introduced into local planning activities. It was initially thought that
the air pollution control element and the general plan should be sub-
mitted to air pollution control districts that had a regional jurisdic-
tion or basinwide coordinating councils and should be amended and adopted
by July 1, 1975. The councils and districts were to evaluate the element
and the plan for their air pollution potential by January 1, 1975, and
"he city and county zoning was to be consistent with the adopted air
18
pollution control element by October 1, 1975. Discussjon within ARB
produced three possible procedures for focusing land use planning on
the abatement of air pollution. The first procedure was a qualitative
one in which the air pollution control district in a given region would
provide a qualitative report for the use of county and city planners as
to the possibility of achieving and maintaining federal and state air
quality standards.
A descriptive bulletin was to be issued by the ARB for use by city
and county planners in order to provide information on:
9-11
-------
1) The primary and secondary effects on ambient air quality of
major commercial and residential developments;
2) The secondary effects of proposed freeways and mass transit
corridors; and
3) The effects on ambient air quality of other elements in the
19
general plan.
The U.S. Environmental Protection Agency's reports on air pollution
control and urban planning were to provide the basis for this bulletin.
From this combination of information the planners would develop or modi-
fy their city or county general plan and include a statement that they
had considered air quality in the land use, circulation, and other ele-
ments of the plan as would be desirable.
The second procedure was a quantitative approach in which planning
projections of emissions would be made using currently available techniques
and utilizing allowable emissions from the State's implementation plan as
desirable basinwide goals. Emission goals on a local level would be deter-
mined by the county APCD in conjunction with basinwide council. There
would be no attempt to evaluate localized air quality and there would not
be a mandatory requirement for revision of the general plans within the
air basin. The procedure would have been advisory only. ARE would provd.de
planners with readily usable emission factors for ten- and twenty-year
periods.
Both the first and second procedures would make the planner aware
of the emissions which result from different plans for local areas. The
second procedure would allow the state government to consider restrictions
on the allocation of state funds utilized for development projects to air
9-12
-------
basins that exhibited poor long term relationships between projected and
allowable emissions.
The third procedure discussed would have been a quantitative system
in which the ARJB would develop an air quality model or a variety of models
applicable to different air basins. Emission allocations would be assigned
to the cities and counties within each air basin by the basinwide coordina-
ting councils. Planners could plan within these emission allocations using
emission factors. A map of "distributed emissions" would be produced and
plugged into a model that would determine basinwide air quality concentra-
tions. If the air quality is predicted to be in excess of that mandated
by federal and state standards, a change in the emission allocation and
consequently in the planning process would be mandated. This approach
would attempt to set up a system which would provide for measurement of
plans against emission goals, modification of plans to meet goals, and
a "fair" method of resolving problems generated by the intercity and inter-
20
regional transport of pollutants.
In summary the three alternative procedures were not viewed as
mutually exclusive, but as stages of development and sophistication.
The first procedure was purely qualitative, mandating cor si.deration of
air quality criteria in the preparation of the general plan. The second
procedure was quantitative, allocating emissions in an advisory capa-
city only but with some possible sanctions in terms of state funding,
while the third procedure was quantitative, based on the development
of a modelling technology that could measure emissions and predict air
quality and which by implication would give the basinwide coordinating
councils the authority to allocate emissions.
9-13
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During the course of this discussion AKB requested that an urban
planning consulting firm submit a proposal to ARB to prepare a report for
ARE on proposed guidelines for the preparation of an air pollution control
element in general plans as required by SB 981. The report was to be pre-
pared in collaboration with ARB. According to a March 1973 discussion
paper prepared by the consultant, the primary purposes of the proposed
air pollution control element were to educate the planner and the public
to the air quality effects of the general plan, to provide data to the
local APCD and the basinwide coordinating council, and to establish pro-
cedures and controls in land use planning and development to assess and
21
limit future emissions by regulating proposed development projects.
According to the consultant, the proposed components of the air
pollution control element were:
1) a description of existing air quality standards applicable
to the city or county and a comparison of the city or county's air
quality with air quality standards,
2) mapping of emissions of air pollutants generated by existing
land uses,
3) mapping of projected emissions to be discharged by potential
sources of air pollutants proposed by the general plan,
4) a listing of air pollution control orders in effect,
5) emission performance standards for incorporation into the
zoning ordinance, and
6) criteria for estimating emissions of air pollutants from
22
proposed developments.
It is interesting to note the emphasis on mapping data by the consultant.
9-14
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Planners traditionally gather data on maps, but it is difficult to see how
air pollution data could be gathered and analyzed in this fashion. In
any case, subsequent work by the consultant does not mention a mapping
technique.
The final study, completed in July 1973, reached the conclusion
that a local air pollution control element could not meet the requirements
of SB 981, although it emphasized that general plans can serve as impor-
23
tant instruments to help maintain air quality standards. The study
examined the relationships between land use and transportation planning
on the local and regional level and concluded that local planning has
traditionally neglected air quality considerations in the land use and
circulation elements of general plans, but that local planners are
realizing the need to guide growth through land use and transportation
planning in order to meet air quality standards. Los Angeles, Marin
County, San Diego and the San Francisco Bay Area were mentioned as
having devoted some attention to the relationship between land use and
transportation planning and air pollution. In San Diego and San Fran-
cisco an air basin approach was used as the basis for study.
The study emphasizes that, although air pollution is a regional
problem ^regional planning is mainly advisory in nature, particularly
when carried out by councils of government which only have the A-95
review power, and that local plans have generally been "upheld" over
regional plans in matters of conflict. Existing regional plans also
seldom do much more than mention air pollution. The one exception to
this conclusion was found in the San Francisco Bay Area where the Metro-
politan Transportation Commission, the agency responsible for the
preparation of a regional transportation plan, provisionally adopted two
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policies in 1973:
1) All transportation program designs and plans shall be
coordinated in cooperation with regulatory agencies to achieve present
and future air and water qualify standards.
2) Transportation program designs and plans shall include
estimates of air polluting emissions, so that these plans can be
24
evaluated by air quality standards.
The consultant pointed out that there are over two thousand
special districts not subject to the control of city councils and not
fully integrated into the system of county and city governments in
California. These districts can make decisions without consulting
cities and counties and can have significant effects on growth. For
example, if a district can sell a bond issue to finance utilities which
will make land in their jurisdiction more developable, then population
growth becomes necessary to pay off the bonds. The special districts
do not consider the air quality impacts of growth except for the prep-
aration of an impact report. Once the utilities are installed, a county
has no choice but to approve the development unless it wants to bankrupt
the district. The California Legislature has passed the Knox-Nisbet Act
crating local agency formation commissions to approve or disapprove
proposals for the formation of special districts and to regulate the
powers of special districts, but the commissions have not fully exercised
their authority.
The consultant's report also examined the utility of the California
Environmental Quality Act and found that reports prepared under the
Act are mainly informational documents which discuss air quality in
qualitative terms. Air quality impacts cannot be evaluated in these
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reports because they concentrate on incremental impacts of particular
projects and neither consider the cumulative effects of several projects
25
nor require consideration of air quality standards.
The study emphasizes the problems of introducing an air pollution
control element at the local level. First, photochemical oxidant is an
areawide pollutant and no model is presently available to relate emissions
to air quality concentrations. Second, the impact of local land use on
local air quality cannot be determined by a local agency because it cannot
determine background concentrations from other portions of the air basin.
Third, it is beyond the abilities of local planning agencies to evaluate
the impact of local land use on air quality for the rest of the same air
basin without operational basinwide models. Fourth, the impact of local
land use plans on traffic volumes cannot be evaluated without regional
multi-model traffic models which are the responsibility of a regional
transportation agency. And fifth, local efforts cannot improve air
26
quality without comparable efforts basinwide.
Besides these five technical problems the study found three adminis-
trative problems that would limit the value of a local air pollution con-
trol element. First, no effective machinery exists presently to resolve
inter-jurisdictional conflicts. Second, an inadequate relationship among
local general plan air pollution control elements, the regional transportation
plan, and transportation projects could result in violations of air quality
standards. Third, where there is insufficient coordination between local
planning agencies and local agency formation commissions, there may not
be adequate analysis of the air quality impacts of proposed incorporations,
annexations, special district formations, or extension of special district
27
areas.
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The study therefore proposes an alternative procedure to integrate
air quality considerations into the land use and transportation planning
process that would utilize existing plans, air quality standards and
emission inventories. The California Implementation Plan has set allow-
able emissions for each air basin and an emission inventory was compiled
for each basin in 1970 and is updated every two years. Six steps are
proposed:
1) Compile detailed inventories of air polluting emissions in
planning sub-areas of air basins. Planning sub-areas will have to be
chosen to conform as far as possible to the boundaries of political-
subdivisions , census tracts and existing planning sectors. The present
inventories for counties and air basins are too general for detailed
air quality planning.
2) Designate maximum emissions allowable in each planning
sub-area to achieve and maintain air quality standards, based on an
analysis of present air quality and the environmental capacity of the
atmosphere. Maximum allowable emissions can be calculated by two
alternative methods: a proportional method and a validated air qua]ity
model.
3) Project planning sub-area emissions likely to be generated by
sources indicated in land use and transportation plans for designated
future time periods, (e.g. 1985 and 1995) and compare these emissions
with allowable limits.
4) Evaluate and revise land use and transportation plans so that
prescribed emission limits would not be exceeded.
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5) Adopt and implement land use and transportation plans
which will meet air quality goals.
6) Monitor public and private development through a refined
environmental impact assessment process in which emissions projected
directly or indirectly by projects are accounted for in environmental im-
28
pact reports.
These six steps are designed to overcome the technical and adminis-
trative limitations of the local air pollution control element and is
called "emission allocation."
The application of such a procedure will require changes in the
existing governmental framework. The choice is between strengthening
the existing councils of government or utilizing single purpose air basin-
wide agencies. Under the first proposal existing councils of govern-
ment would be strengthened to include the six step process in their
comprehensive planning programs. Implementation would be carried out
jointly with the basinwide coordinating councils who would compile a
planning sub-area emissions inventory and set planning sub-area emission
limits. The regional land use and transportation plan would be revised
so that projected emissions do not exceed the allowable emission limits.
Cities and counties would be required to make their plans conform with the
regional plan. Prior to construction, individual projects with significant
air pollution potential would be subject to review in the air quality section
of a revised environmental impact report and to a permit review by the
air pollution control district.
Under the second proposal a single purpose air basinwide agency
would be established to set planning sub-area emissions limits and to
evaluate the impact of local general plans and the regional transportation
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plan on air quality. The basinwide coordinating councils could be
authorized to function as the air basinwide agency. Cities and
counties would cooperate with the agency in the preparation of the
emissions inventory and would project emissions from proposed general
plans. The regional transportation agency would be responsible for
estimating future emissions from its proposed transportation plan.
These emissions projections would be submitted to the basinwide air
pollution agency for evaluation. If necessary, local planning agencies
or the regional transportation agency would be required to revise their
plans to meet emission limits. Responsibility for enforcement of
emission limits would rest with the air pollution control districts.
The impact of new projects would be monitored through the revised envir-
30
onmental impact assessment report.
The report concludes that using the existing councils of governments
would have a number of advantages. Some have large technical staffs ,
experienced in land use and transportation planning, who have prepared
numerous regional plans. Except in the San Francisco Bay Region, they
are responsible for preparing the state-mandated regional transportation
plan. They conduct the A-95 review process and act as a clearinghouse
for environmental impact statements.
However, it is pointed out that the councils of governments are
voluntary organizations and their functions are only advisory. Except
for their veto power over federal grants, councils of governments are not
empowered to implement plans or policies. Legislative efforts to vest
governmental powers in multi-purpose regional agencies have consistently
been defeated in California. It is noted that councils of governments
are not directly accountable to the public and their policies sometimes
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reflect local perspective or tend to be based on compromises among local
views. The regional plans prepared by councils of governments also
typically lack the detail necessary to project emissions. Except for
those of the San Francisco Bay Area and San Diego County, the councils
31
of governments' jurisdictional boundaries do not conform with air basins.
The study therefore favors the utilization of a single purpose air
basinwide agency which would supposedly offer the following advantages.
Most important, the agency would possess the statutory powers necessary
to implement its programs. Its boundaries would coincide exactly with
those of the air basin throughout the State. By concentrating its efforts
on air quality and its relationship to land use and transportation planning,
an air basinwide agency could achieve the objective of meeting air quality
goals significantly earlier than the councils of government with their
multiplicity of planning responsibilities. As a resource center to evalu-
ate land use and transportation plans only for their impact on air quality,
it is argued that the single purpose air basinwide agency probably would
be more efficient, as well as more effective, provided that it keeps the
32
councils of governments continuously advised of its activities and decisions.
To implement the first proposal, statutory authority to implement and
enforce regional plans would have to be given to councils of government.
If regional planning were to become a reality in California, the report
states that the councils of government would have been the logical choice.
But since it is unlikely that such authority will be given to the councils
and the second proposal would require less extreme changes, the study
33
recommended a single purpose air basinwide agency.
It recommends strengthening existing basin coordinating councils
rather than creating a new single purpose agency in order to capitalize
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on their experience and to avoid creating a new layer of government.
New legislation will be required to expand the powers of the basin
coordinating councils. Laws relating to local planning and to environ-
mental impact reports would have to include requirements that emission
limits be respected and that plans be submitted to the basin coordinating
council. Local agency formation commissions would have to consider
the air quality effects of proposals for annexation, incorporation, and
the formation or expansion of special districts. Mr pollution control
districts would be required to amend their permit procedures to be con-
34
sistent with the emissions allocations.
At the time of this writing, it seems likely that some form of
emission allocation will be implemented in the State of California.
The consultant's report has been accepted by the Air Resources Board
and a formal proposal is to be made to the Legislature in 1974. Already,
however, the ARE is moving to implement aspects of the program and is
building up a land use planning capability within the agency. The proposed
indirect source regulations demonstrate one use of emission allocation.
INDIRECT SOURCE REGULATIONS
The Air Resources Board has proposed a two level program for re-
viewing and regulating indirect sources in response to the regulations
promulgated by the Environmental Protection Agency. The first level,
what is called the "Basic Program," is aimed at the localized impact of
sources which would be evaluated by local air pollution control districts
on an individual source by source basis. The districts would be required
to deny an authorization to construct if they found that the source would
prevent the attainment or maintenance of any national ambient air quality
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standard. This Basic Program relies on the expansion of the existing
districts' permit systems to provide for the review and regula-
tions of new indirect sources and would be applicable all over the state.
It is therefore similar to indirect source reoulations nronosed in other
states.
As noted earlier, as a result of the California Environmental Quality
Act of 1970 and 1972 amendments to the Act, EIR's are required for all
projects, both public and private, that would have a "significant" impact
on the environment. The Air Resources Board has suggested that the EIRs
could serve as possible sources of information to monitor indirect sources
to determine if a permit to construct from an air pollution control dis-
trict is required. Additional information would be requested from the
project proponents by the districts if necessary and local and state
planning agencies would provide data on traffic generation.
In addition to the Basic Program, a "Supplemental Program" was
proposed for the parts of the state with serious air pollution problems
- the San Diego, South Coast, San Joaquin Valley, San Francisco Bay Area
and Sacramento Valley Air Basins. This supplemental program would be in-
tegrated into the emission allocation program and thereby provide a
regional framework for the review of individual indirect sources. Devel-
opers of major projects which would qualify as indirect sources would
have to apply to the APCDs for authority to construct or modify the in-
direct source. No authority would be issued by the APCD if the projected
emissions would cause the allocated limits of the affected subdivisions to
be exceeded. This requirement would be in addition to the review process
required by the Basic Program.
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A proposed new indirect source will be subject to indirect source
review if any one of the following criteria would be exceeded:
1) the associated motor vehicle miles traveled (VMT) would
be greater than 30 million miles per year,
2) it would have a VMT greater than 100,000 miles during any
twenty-four hour period, or
3) it would have more than 1500 new parking spaces available
to users of the project.
Indirect sources include, but are not limited to:
1) Highways and roads
2) Parking lots and garages
3) Shopping centers and other retail facilities
4) Recreational centers and amusement parks
5) Sports stadiums
6) Airports
7) Commercial or industrial developments
8) Metropolitan redevelopment projects
9) Governmental buildings
10) Hospitals and other medical facilities
11) Educational institutions
12) Hotels and motels
13) Office buildings
14) Restaurants
15) Theaters
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AIR QUALITY MANAGEMENT IN THE SAN FRANCISCO BAY AREA
Since World War II, the San Francisco Bay area has experienced
tremendous urban growth which has served to steadily increase air
pollution levels. Realizing that the continuance of this trend would
engulf the basin in air pollution, and noting the failure of direct
regulation of source emissions to be 100 percent effective, the Bay
Area Air Pollution Control District has increasingly paid attention to
the question of regional growth controls, and has concluded that land
use controls are necessary to complement emission regulations in an effec-
tive air quality management system. In July 1972 the District adopted
a permit system requiring a permit of any person intending to construct
a new source or to modify an existing source. The permit system, dis-
cussed in chapter four, is the means by which the District plans to con-
trol new sources emitting air pollutants, and for all practical purposes
gives the District an indirect control over land use.
Topography and Meteorology
The San Francisco Bay area, containing well over four million
inhabitants, is a large, shallow basin surrounded by hills. Thus its
topography alone gives it a great potential for trapping air pollutants.
Concentrations are determined by the interaction of circulations around
the great high and low pressure areas, the continental and maritime air
masses. The continental air mass centered over the Great Basin to the
east is cold and dry in the winter and warm and dry in summer. The Pac-
ific air mass is more moist, denser and less given to temperature ex-
35
tremes.
The amount of air available to dilute pollutants depends primarily
on the character of the inversion layer and the amount of wind flow.
9-25
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Inversion layers, which are characterized by a blanket of warm air over-
lying cool air immediately below, are naturally formed when high pressure
dominates the weather, causing a "subsidence" inversion, and when clear
nights accelerate nighttime cooling, thereby lowering the temperature of
the lower layer. In the Bay area, temperature inversions occur about.
two out of every three days of the year. Temperature inversions can
prevent vertical dispersion, because colder .air cannot rise through the
warmer air, trapping pollutants in the colder air closer to the ground.
When the inversion layer is lower than the Mils surrounding the Bay Area,
it becomes a lid, sealing the low-lying, pollutant bearing air into the
Bay Area Basin.
The other factor influencing the build-up of pollutants is wind
speed. Together, these two factors determine the ventilation factor,
which in the San Francisco Bay Area Basin is normally adequate to dis-
perse most pollutants. However, during the"smog season," the warm, sunny
months between May and October, more photochemical oxidants are formed.
Strong inversions and stagnant air conditions are also regularly
experienced during the summer and early fall. Poor ventilation leads
to build-up of smog and other pollutants.
California's meteorological and geographic characteristics, among
other factors, have established a general need for controls more stringent
than is necessary for the rest of the Nation. It is the only state
allowed to conduct its own program on automobiles, establish and enforce
3R
its own standards. The state program is administered by the ARE.
Under the Clean Air Act Amendments of 1970, as noted earlier,
states were required to submit a plan providing for the inplementatiori,
maintenance and enforcement of federal ambient air quality standards with
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the state. California law requires the Bay Area Air Pollution Control
District to supply that portion of the plan dealing with the control of
stationary sources in the San Francisco Bay Area Basin.
The Administrative Framework of the Bay Area Air Pollution Control District
The Bay Area Air Pollution Control District was created by the
California Legislature in 1955. Its jurisdiction is limited primarily
to stationary sources of air pollution within the Bay Area plus rail and
sea transportation. Gasoline and diesel powered motor vehicles are con-
39
trolled by the state, and aircraft by the federal government.
The District encompasses all of seven counties: Alameda, Contra
Costa, Marin, San Francisco, San Mateo, Santa Clara, and Napa, and
portions of two others -- southwestern Solano and southern Sonoma—and
is governed by an eighteen-member Board of Directors. Each county is
represented by two members, One selected by each County Board of Super-
visors from among their number, and the other a mayor or city councilman
selected by the City Selection Committee. The Board has the power to
develop and enforce regulations for the control of air pollution within
the District.
To advise the Board and to assist it in developing regulations
is a 20-member Advisory Council appointed by the Board. Members of
the Advisory Council represent special interest groups and must include
three representatives of public health agencies, four representatives
from environmental protection groups, as well as single representatives
from the areas of agriculture, architecture, labor, industry, mass public
transportation, education, community planning, general contractors,
engineers, regional park districts, park and recreation commissions and
universities.
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The District has an independent Hearing Board to consider and
when necessary, grant variances from regulations, since it is impossible
to adopt regulations which will in all cases accomplish the purpose of
equitable control. It has the power to make special provisions in
unusual cases. The Hearing Board is also the District's judicial body.
The law requires that most enforcement cases be heard first by the Hearing
Board. The Hearing Board makes findings of fact and can issue orders
for abatement which are then enforced under the injunctive power of the
Supreme Court. The Hearing Board was made independent of the Board of
Directors to separate the legislative and judicial powers.
40
The following regulations have been passed by the District:
1. Open burning is either prohibited outright or limited by
meteorological conditions under Regulation 1. As originally
adopted in 1957, Regulation 1 was enforceable through civil
injunction. When it was demonstrated to the legislature that
this was impractical in some cases, misdemeanor power was
given to the District in 1965.
2. Regulation 2 instituted direct controls on particulate matter,
sulfur dioxide, sulfuric acid from industrial and commercial
sources, and particulate matter and organic gases from incin-
erators. On November 3, 1971, the Board adopted a regulation
governing the emission of lead particles from stationary sources.
3. Direct controls on the emission of certain kinds of organic
gases are exercised through Regulation 3. The measure describes
these gases to be controlled as reactive, that is, relatively
quick in reacting with nitrogen dioxide in the atmosphere to
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form oxidant. Regulation 3 affects the formulation,
storage, shipment and use of such materials as solvents,
paint, gasoline and ink.
Other requirements of Regulation 3 are designed to compel
the use of submerged fill pipes, vapor recovery systems,
and floating roof tanks for the transfer and storage of large
quantities of reactive materials, so that evaporation loss
to the atmosphere is minimized.
4. Regulation 4 directly controls some of the organic compounds
from used automobiles. It was originally passed to require
residents of Contra Costa County to install crankcase ventila-
tion devices on cars upon transfer of ownership, or re-registra-
tion of a car from outside the state. The other counties in the
District were already required to do this by state law.
Regulation 4 was expanded to include Napa County and the
residents of Solano and Sonoma Counties that are within the
District.
The crankcase ventilation device recirculates gases into the
combustion chamber of the automobile engine so that the
emission of unburned hydrocarbons is reduced.
Field inspectors are responsible for checking whether or not sources
are complying with these regulations. Inspection is part of the En-
forcement Division. The enforcement effort of the District is based
on performance standards. The District establishes emission limits for
contaminants,and sources may use whatever means necessary to come into
compliance with these limits. Although the District engineers may review
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company plans, the staff cannot specify any particular process or equip-
ment to bring the company into compliance. Howevei, the District can
make recommendations to the Hearing Board which are considered alorg
41
with alternatives presented by the company.
The first step in enforcement of the District's regulations is to
advise the offending party of the nature of its violation. Most of the
time the District receives a satisfactory explanation and either immediate
compliance results or the company presents acceptable plans for com-
pliance. The District requires the attendance of company officials at an.
office conference when an unsatisfactory reply to a violation notice is
received, or if no reply is forthcoming within ten days. If the company
is unwilling or unable to present any alternatives to continuing viola-
42
tions, abatement actions or penalties may result.
The Permit System
In 1971, the Board, in formulating the long-term goals of air pollu-
tion control in the District included a new concept: "The incorporation
of air quality standards in the development of a regional land use plan
which includes decisions concerning the location and size of subdivisions,
industrial and commercial expansion, transportation systems, high rise
43
developments, new power plants, as well as other relevant planning decisions."
This marked the beginning of a new approach to air pollution control in the
Bay area.
In 1972, amendments to the District's Regulation 2 established a
permit system, effective July 1, 1972, for the review of construction of
new facilities, the modification of facilities, tht change of ownership or
location of facilities which may either cause or alter the emission of
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44
air contaminants.
Permits are issued both to construct and operate. The following
information is required:
1. Emission Point Summary Form -- Form should list all
emission points for the equipment in this application.
2. Plot Plan of Facility --To scale, must show location
of all emission points and the nearest street inter-
sections .
3. Topographical Map -- Exact location of facilities should
be shown on a U.S. Geological Survey 7 1/2
minute quadrant map.
4. Process Flow Diagram -- Show process equipment and
pounds per hour of materials flow if continuous, or
batch schedule and pounds of all material charged to
batch.
5. Description of Operation and Facilities -- Name all
ingredients used, and list particle sizes of all bulk
solids involved. Describe control procedures and
equipment in sufficient detail to show degree of ex-
45
pected air contaminant control.
The Permit Services Group was created to handle inquiries and
initial application processing. The Group receives and logs all permit
applications and then sends them to proper quarters for evaluation.
After making sure that all pertinent information has accompanied the
application, the Group places the appropriate data in computer memory
banks. The application will then be sent to an engineering specialty
group for evaluation and to the Research and Planning Section for their
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46
evaluation if needed.
The Permit System is based on three criteria:
1. As designed, will this operation meet District emission
standards?
2. Will its operation cause any air quality standards to be
exceeded anywhere in the District?
3. Will the operation result in a significant quantity of
emissions in an area where the air quality standards are
already exceeded?
If the answer to any of these questions is yes, then a permit to construct
must be denied.
The implications of the permit criteria are significant. Anyone
wishing to build in an area where air quality is near or at unacceptable
levels will have to develop methods of operation which will safeguard
air quality, or go elsewhere. Section 1311 of the Permit Regulations,
which governs improvements of source emissions by replacing equipment,
will perform a similar service. Under its provisions, existing plants
that wish to expand or refurbish their operations must achieve a reduction
47
in emissions at the source in question.
The permit regulation (Section 1315) also requires a permit for
construction and operation of the following sources:
1. All stationary sources causing emissions in excess of
100 tons per year of any pollutant for which there is a
National or State of California air quality standard.
2. Without regard to the amount of emission, stationary'
sources listed in the Appendix C of the Federal
Register, Saturday, August 14, 1971, Volume 36,
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48
Number 158, Part 11, Page 15497.
There are over 100 sources on this list. Exemptions are listed in
Section 1316 of the permit regulations and include such sources as homes,
49
apartments and office buildings. The applicant is responsible for
conpliance with these regulations.
During the first four years, after adoption of the permit system,
none of the operations listed in Section 1316 would be required to obtain
permits for construction or operation. After four years, the exemptions
would expire, to enable the District to review the impact of emissions
from these exemptions in the light of air quality levels.
Sections 1308 and 1309 of the permit regulations deal with the
denial of construction authorization by the District if emissions from the
facility or the use of the facility would cause air quality standards to
be exceeded or if air quality standards are already exceeded. A four
year period, originally proposed before Sections 1308 and 1309 were to
become effective because of the need for the District to develop an
acceptable air pollution model to determine the impact of specific source
emissions on air quality, was subsequently dropped.
The authority of the Board of Directors to require permits prior to
construction is based on the following sections of the Clean Air Act,
discussed in chapter two. Section 110 provides that States shall submit
plans for implementation, maintenance and enforcement of national ambient
air quality standards in each air quality control region, or portion thereof,
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within the state. Section 110 (a) (2) (B) states that the plan should
include "emission limitations, schedules, and timetables for compliance
with such limitations, and other such measures as may be necessary to
insure attainment and maintenance of such primary or secondary standards,
including but not limited to land use and transportation controls."
Section 110 (a) (2) (D) states that the plan should provide for "...
a procedure... for review (prior to construction or modification) of the
i
location of new sources to which a standard of performance will apply."
Such procedure must provide (1) adequate authority to prevent or modify
any new source to which a standard of performance will apply at any
location within the state where the state determines that otherwise fed-
eral standards will not be attained or maintained, and (2) that prior
to the construction or modification of any such source of pollution, the
owner or operator thereof shall submit to the state such information as
may be necessary to permit the state to determine whether the construc-
tion or modification will in fact prevent the attainment or continuance
52
of such standards.
The Bay Area Air Pollution Control Law, contained in the California
Health & Safety Code Sections 24345 through 24374,53 gives the Board power
to adopt and enforce orders, rules and regulations. Section 24362 pro-
vides that the Board may by resolution declare it necessary that the
District adopt rules and regulations to control the release of air con-
taminants in order to reduce or alleviate air pollution within the Dis-
trict. Section 24362.1 provides that at any time after the resolution
of necessity has been adopted, the Board may make and enforce all nec-
essary orders, rules and regulations to accomplish the purpose of the
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Bay Area Air Pollution Control Law. Section 24362.3 provides that:
Whenever the board finds that the air in the district
is so polluted as to cause discomfort or property
damage at intervals to a substantial number of
inhabitants of the district, the board may make
and enforce such general orders, rules and regu-
lations as will reduce the amount of air contam-
inants released within the district, but no order,
rule or regulation of the board shall specify the
design of equipment, type of construction, or
particular method to be used in reducing the
release of contaminants.
Section 24362.4 provides that the Control Officer of the Board "may
require from any person subject to regulations of the board, such infor-
mation and analysis as will disclose the nature, extent, quantity or
degree of air contaminants which are or may be discharged by such
source." Under this section the Board has the means of obtaining
information prior to construction of the contaminants that may be dis-
charged after the source is constructed and put into operation.
The permit system may be used in connection with performance
standards to control sources of air contamination prior to construction.
This is not merely a permit to construct and operate which would only
specify allowable emissions from a source disregarding the air quality
effects of clustering. This would be a permit to locate as well, be-
cause it is considering the impact of a new source on surrounding air
quality.
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The Effectiveness of the Permit System
On October 27, 1972, the Bay Area Pollution Control District
announced that it had denied authority to construct 18 gas stations.
Under Section 1309 of the permit regulations, the Air Pollution Control
Officer must deny permits to build facilities that emit air pollutants
in areas where air quality standards are exceeded. The air quality
standard for oxidant is currently exceeded over most of the Bay Area.
Oxidant is formed when hydrocarbons and oxides of nitrogen combine
in the atmosphere under the influence of sunlight. Reactive hydrocarbons
evaporate into the atmosphere from filling stations when gasoline is
pumped into cars and when storage tanks are filled. The District's
refusal to grant permits to build service stations marks the first time
in the Bay Area that growth controls have been imposed to prevent the
54
deterioration of local air quality.
On January 3, 1973, the Board lifted the ban on the construction
of new gasoline stations. Oil companies, gas station developers, and
labor unions had protested the ban vehemently, claiming that it created
55
undue economic hardships without reducing smog. However, construction
permits will be issued only to new stations equipped to recover at least
90 per cent of the fumes emitted when underground storage tanks are
filled. Also the stations will have to install, by January 1, 1974,
equipment to control 90 per cent of the vapors emitted when vehicle tanks
are filled with gasoline. The ban on gasoline station construction lasted
only ten weeks. It was originally adopted not with any specific land
use planning goals in mind, but to reduce the emissions of one pollutant
into the atmosphere. The conditions imposed on the granting of the
permit eventually served the same purpose.
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Evaluation
Given the physical nature of the San Francisco Bay Area and its
present rapid growth rate, one can perceive the obvious need for some
form of land use controls that influence urban growth which in turn j_nflu-
Rna=>s i-n tne maintenance of air quality standards. As originally de-
signed, Sections 1308 and 1309 of the permit regulations were not to
take effect for four years in order to allow time for the development of
mathematical dispersion models. These models will allow the District
to isolate the impact of specific sources on the air quality of the
region, thereby providing a verification and legal support for the enforcement
of the permit regulations. However, since the Board decided to make the
regulations apply in 1972 rather than in 1976, the regulations are not operating as
effectively as they will eventually when more effective dispersion modeling
techniques are operational.
Significantly more attention will have to be addressed to air quality
monitoring as an aid in the development and verification of dispersion
56
models. Additional monitoring is also necessary because, without
more adequate observational coverage of the District, air quality data
will only be valid for locations adjacent to existing monitoring stations.
This is a speculative point, however, since mobile monitors can be utilized
as the occasion demands. Still, the processing of a large number of per-
mits would place a severe burden on the District if mobile monitoring
were relied upon.
Like many other agencies in California with functional responsi-
bilities, the BAAPCD has gotten involved in land use controls in a very
ad hoc, incremental fashion. Without conscious design, the District
will increasingly be making land use decisions that some would argue
9-37
-------
should be the responsibility of a land use planning agency. The District
feels it has a mandate to achieve and maintain the ambient air quality
standards applicable in California, and that it will institute whatever
controls -- including land use controls -- that are necessary to achieve
this objective. Although the staff realizes that some of its policies
might eventually run counter to other urban development goals often advo-
cated by planners, it views itself as the only agency presently capable
of implementing stringent, and possibly politically unpopular, decisions
that will restrict the growth of land use types emitting air pollution.
Although these types of land use will be limited for the near future to
industrial and commercial point sources, and special cases like gasoline
stations, the indirect effects on the location and amount of urban growth
clearly will be significant.
The regional agencies in the Bay Area with which the District keeps
closely in touch are the Association of Bay Area Governments (ABAC), a
council of governments operation of the type discussed in chapter four,
and the Metropolitan Transportation Commission (MTC), a unique regional
transportation planning agency set up by the State of California. Because
of a strengthening concern for urban planning in the Bay Area, these two
agencies have a greater impact than metropolitan agencies in other parts
of the country. The District has agreed to assist the MTC and ABAC
in an evaluation of the air pollution emissions associated with ABAG's
regional plan and MTC's transportation plan. The District also maintains
contact with local planning agencies, principally in connection with its
advisory role in reviewing environmental impact reports. The District's
two land use planners also maintain contact with local planning agencies,
principally in connection with its advisory role in reviewing environmental
9-38
-------
impact reports. The District's two land use planners also maintain in-
formal relationships with planning agencies.
CONCLUSION
The California Air Resources Board and the Bay Area Air Pollution
Control District have been examined in this chapter because they have
made more advancement than most air pollution control agencies in
considering land use planning in their decision-making. As is evident,
both agencies are in a very preliminary stage in this process; however,
during 1975 their procedures will be considerably refined. It will not
be surprising to see other states follow California's lead during the
second half of the 1970's.
9-39
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NOTES
1. For an earlier review of experience in California, see; G. Hagevik,
Decision-Making in Air Pollution Control (1970)•
2. Air and Water News, October 26, 1972. The Air Resources Board was
created by the Mulford-Carrell Air Resources Act in 1967. The Act
consolidated the duties of the old Motor Vehicle Pollution Control
Board, the State Vehicular Pollution Laboratory, and the Bureau
of Air Sanitation of the Department of Public Health. Under a re-
organization effective in 1972, the ARB members were reduced in num-
ber from 14 to 5 and the Technical Advisory Committee was abolished.
ARB members are appointed by the Governor with the consent of the
Senate.
3. Staff Memo, November 7, 1971, p. 181.
4. Ibid.
5. Ibid.
6. Ibid.
7. Staff Memo, January 10, 1972, p. 29.
8. Ibid.
9. No date, p. 117.
10. January 30, 1972, pp. 81-82.
11 • In 1971 the Office of Planning and Research produced a "plan"
for the State ahead of the Stage agency. See: Alfred Heller
(ed), The California Ttmorrow Plan (1972).
12. Public Resources Code, §21000.
13. Public Resources Code, §21151, as amended.
14. Friends of Mammoth, et al. v. Board of Supervisors of Mono County,
et al., etc., 8 Cal. 3d. 1(1972).
15. Office of the Secretary of Resources, Guidelines for Implementation
of the California Environmental Quality Act of 1970 (1973).
16. See: Donald Ragman, Ecology v. Building: A Knockout in the Fifth,
Planning (March-April 1973) at 40-1; Gerald Mylroie, California
Environmental Law: A Guide (1973).
9-40
-------
17. One view of land use planning in California that cannot be called
complimentary is that of the Ralph Nader Study Group in: Robert
Fellmeth, Politics of Land (1973).
18. Staff memo entitled SB 981 Program Discussion, January 23, 1973.
In other states the general plan might be called the master or com-
prehensive plan. Few states, however, have such detailed specifications
on the content of the general plan as does California.
19.
20.
21.
22.
23.
24.
25.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
Ibid.
Ibid.
Livingston and Blayney, Concepts of an Air Pollution Control
Element (March 28, 1973), at 4.
Ibid.
Livingston and Blayney, Report on Guidelines for Relating Air
Pollution Control to Land Use and Transportation Planning in the
State of California (1973), at 1.
Ibid.,
Ibid. ,
Ibid.
Ibid. ,
Ibid. ,
Ibid. ,
Ibid.,
Ibid. ,
Ibid. ,
Ibid.,
23.
28-9.
2-3, 30-4.
35.
36.
55-6.
56.
57.
56.
Bay Area Air Pollution Control District, Air Pollution and the San
Francisco Bay Area (1972) , at 8 [Hereafter cited as BAAPCD] .
BAAPCD,
BAAPCD,
BAAPCD,
BAAPCD,
9. The reactive pollutants are the major problem.
10.
18.
19-20.
9-41
-------
40. Bay Area Air Pollution Control District, Summary of District Regu-
lations (1972).
41. BAAPCD, 24-26.
42. Ibid.
43. Bay Area Air Pollution Control District, The Permit System: A
New Direction in Air Pollution Control, 15 Air Currents (June 1972),
at 1.
44. Bay Area Air Pollution Control District, Permit Information (1972),
at 108.
45. Bay Area Air Pollution Control District, General Instructions for
Permit Applications (1972), at 107.
46. Bay Area Air Pollution Control District, supra note 9.
47. Bay Area Air Pollution Control District, supra note 9, 5.
48. Bay Area Air Pollution Control Law, Reg. 2, Div. 13 §1315.
49. Ibid., §1316.
50. Robert Hoyer, letter of general information (May 1, 1972).
51. Personal communication with Ralph Mead (December 4, 1972).
52. Clean Air Act Amendments of 1970, P.L. 91-604 §110 (a) (4).
53. Bay Area Air Pollution Control Law, Health and Safety Codes
§24345-24374.
54. Personal communication with the Bay Area Mr Pollution Control District.
55. New Gas Station Ban is Lifted, Marin Independent Journal (January
4, 1973).
56. Richard Thuiller, Air Monitoring and Its Application to Land Use
Planning (prepared for the 13th Conference on Methods in Air Pollu-
tion and Industrial Hygiene Studies, Berkeley, California 1972).
9-42
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CHAPTER TEN
THE CONTROVERSY OVER NON-DEGRADATION*
This study would not be complete without at least a brief examination
of the issues involved in the debate over "non-degradation." Non-degra-
dation as applied to air quality management is a policy providing that air
quality in certain areas of the country, which if of higher quality than
the federal secondary standards, should not be allowed to significantly
deteriorate. The policy would probably mainly impact rural areas without
concentrations of heavy industry or population.
On June 11, 1973, the United States Supreme Court upheld a lower
court decision in favor of four environmental groups who brought suit
against the federal Environmental Protection Agency concerning the
question of non-degradation. The following is a discussion of the suit
brought by the environmental groups against the administrator of EPA,
the arguments for and against such a policy developed before the Court,
the implications of the decision, and the possible approaches advanced
to implement the Court decision of EPA. At the time of this writing,
EPA has not promulgated final non-degradation regulations. Thus the
following material must be considered an incomplete statement of federal
policy. However, the central issues are raised.
*
This chapter was written prior to EPA's publication of the Guidelines
for Air Quality Maintenance Planning and Analyses (12 volumes). The
intent of the guidelines is to provide State and local agencies with
information and guidance for the preparation of Air Quality Maintenance
Plans required under 40 CFR 51.
10-1
-------
On May 24, 1972, four environmental groups, the Sierra Club, the
Metropolitan Washington Coalition for Clean Air, New Mexico Citizens
for Clean Air and Water, and the Clean Air Council of San Diego County,
brought suit against Mr. William D. Ruckleshaus, administrator of the
Environmental Protection Agency, over the issue of whether the adminis-
trator must disapprove those portions of state implementation plans which
fail to effectively prevent the significant deterioration of existing air
2
quality in any portion of the state.
On May 30, 1972, a preliminary injunction was issued by the U.S.
District Court restraining the Environmental Protection Agency from
approving any state implementation plan unless it did not permit sig-
nificant deterioration of existing air quality in any portion of any
state where the existing air quality is better than the secondary standards,
The administrator of EPA was ordered to complete a review of all state
plans in four months, and to promulgate and publish regulations concerning
state plans which permit significant deterioration in any portion of any
3
state within six months.
On June 2, 1972, Judge Pratt of the U.S. District Court issued a
memorandum stating that the court found that the plaintiffs (Sierra Club
et al.) had standing under the citizen suit provision of the Clean Air
Act and that Section 101 (b) of the Act which states that the Act is de-
4
signed "to protect and enhance the quality of the Nation's air resources,"
"would appear to declare Congress' intent to improve the quality of the
Nation's air and prevent deterioration of that air quality, no matter how
presently pure that quality in some sections of the country happens to
5
be." The court considered the legislative history of the Air Quality
10-2
-------
Act of 1967 and the Clean Air Act of 1970, as well as the administrative
interpretations of those statutes. On the basis of this analysis, the
Court declared:
...it is our judgment that the Clean Air Act of 1970 is based
in important part on a policy of non-degradation of existing
clean air and that 40 C.F.R. 51.12(b), in permitting the states
to submit plans which allow pollution levels of clean air to
rise to the secondary standard level of pollution is contrary
6
to the legislative policy of the Act and is therefore invalid.
On June 5, 1972, the EPA filed an appeal for the reversal
decision. On November 2, 1972, the U.S. Court of Appeals affirmed
7
the lower court decision , and on November 23, EPA disclosed that
8
it was seeking Supreme Court appeal of the District Court decision.
The arguments of the two opposing parties are summarized below.
9
ARGUMENT OF THE SIERRA CLUB
The Sierra Club, et al. argued that the Clean Air Act states as
the first purpose of the statute:
to protect and enhance the quality of the nation'b air resources
so as to promote the public health and welfare and the productive
10
capacity of its population.
Thus the Act was designed to insure that air would not be further
harmed by lowering its quality and it would also be improved. The
national primary and secondary ambient air quality standards adopted
by the administrator of EPA provide that:
The promulgation of national primary and secondary air quality
10-3
-------
standards shall not be considered in any manner to allow signifi-
cant deterioration of existing air quality in any portion of any
11
state.
This regulation provides that air quality which is better than secondary
standards cannot be permitted to deteriorate significantly. However.,
on August 14, 1971, the administrator of EPA adopted Requirements for
Preparation, Adoption and Submittal of Implementation Plans, which pro-
vided that:
In any region where measured or estimated ambient levels of a
pollutant are below the levels specified by an applicable secondary
standard, the[state implementation]plan shall set forth a control
strategy which shall be adequate to prevent such ambient pollu-
12
tion levels from exceeding such secondary standard.
Thus it was made clear that the administrator of EPA would approve state
implementation plans which permit the significant deterioration of air
quality as long as pollution levels do not exceed the secondary standard.
The Sierra Club, et al. argued that this regulation is in direct con-
flict with the provisions of the Clean Air Act and contested the validity
of the regulation.
Most of the state implementation plans filed with EPA did not have
13
provisions prohibiting significant deterioration and approval of these
plans would most likely result in the significant deterioration of air
quality in areas where the air quality is better than secondary standards.
The Sierra Club, et al. maintained that there can be levels below
secondary standards which may produce health hazards. The National Air
Pollution Control Administration (NAPCA) Guidelines for the Development
10-4
-------
of Air Quality Standards and Implementation Plans stated that:
. . .the (air quality) criteria are not an indication of how
much air pollution man and his environment can tolerate without
biological risk. . .air quality criteria cannot be interpreted
as threshold values; indeed for many types of air pollutants,
there may not be a threshold of risk to health and the envir-
14
onment.
The Sierra Club, et al. maintained that the legislative history
of the Clean Air Act is fully consistent with its language. The inter-
pretation of the Act and its predecessor, the Air Quality Act of 1967,
were also consistent with the language of the Act until the administrator
promulgated the regulation allowing the approval of state implementation
programs which permit significant deterioration.
The Clean Air Act was first adopted by Congress in 1963. The Act
provided:
The purposes of this Act are. . .to protect the nation's air
resources so as to promote the public health and welfare and
15
the productive capacity of its population.
The 1963 Act was not specifically designed to improve air quality. In
the Air Quality Act of 1967, Congress strengthened the Act and added the
phrase "and enhance the quality of." Thus the Act was intended to improve,
not just maintain, air quality, the Sierra Club argued. The Senate Re-
port underlying the Air Quality Act of 1967 seems to make clear that the
Act was designed to improve air quality throughout the country, including
areas with relatively clean air:
The prime purpose of the proposed legislation is to strengthen
10-5
-------
the Clean Air Act, to expedite a national program of air quality
16
improvement, and to enhance the quality of the atmosphere.
The National Air Pollution Control Administration was charged with the
responsibility of carrying out the Air Quality Act of 1967. The adminis-
trative interpretation of the Act by NAPCA was not to allow any signifi-
cant deterioration of air quality in any part of the country, Sierra Club
asserted. In 1969, NAPCA promulgated the Guidelines for the Development
of Air Quality Standards and Implementation Plans which stated:
An explicit purpose of the Act is to "protect and enhance the
quality of the Nation's air resources." Air quality standards,
which, even if fully implemented, would result in significant
deterioration of air quality in any substantial portion of an
air quality region clearly would conflict with this expressed
17
purpose of the law.
The Clean Air Act of 1970 retained the language "to protect and enhance
air quality." The Senate Report which preceded the Clean Air Act of
1970 stated that no significant deterioration of air quality would be
permitted under the Act:
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 plan which does not provide, to
the maximum extent practicable, for the continued maintenance
of such ambient air quality. Once such national goals are
established, deterioration of air quality should not be per-
mitted except under circumstances where there is no available
control technology, industrial processes, and operating practices --
and care in the selection of sites for new sources, land use
10-6
-------
18
planning and traffic controls -- deterioration need not occur.
The administrative interpretation of the Clean Air Act by EPA was in-
consistent with this position, Sierra Club suggested. Briefly, on
April 30, 1971, the administrator of the EPA promulgated national
primary and secondary ambient air quality standards which provided
that the "standards shall not be considered In any manner to allow
significant deterioration of existing air quality in any portion of any
19
state." But, on August 14, 1971, the Requirements for Preparation,
Adoption and Submittal of Implementation Plans provided that in areas
where air quality was below the secondary standard, "the control strategy
shall include procedures for preventing such ambinet levels from ex-
20
ceeding such secondary standards." Thus, the air quality could be
degraded to the secondary standard.
21
ARGUMENT OF THE ENVIRONMENTAL PROTECTION AGENCY
EPA argued that 40 C.FJR. 51.12(b), ruled invalid by the District
Court, reflects the administrator's doubts as to his authority to impose
such a policy upon the states in their implementation plans. EPA main-
tained that the words of the operative section of the Clean Air Act
and the relevant legislative history support the administrator's inter-
pretation that he lacks authority to reject a state plan that meets the
specific requirements of Section 110.
According to EPA, the Clean Air Act does not authorize the adminis-
trator to reject a state implementation plan because it fails to prevent
deterioration of air quality in any area where it is better than the
secondary standards. Section 110 requires the Administrator to "approve
10-7
-------
such plan, or any portion thereof, if he determines that it was adopted after
reasonable notice and hearing" and that it fulfills the eight specific
22
criteria set forth in Section 110. The criteria are listed below:
(A) (i)in the case of a plan implementing a national primary
ambient air quality standard, it provides for the attainment
of such primary standard as expeditiously as practicable but
(subject to sub-section (e)) in no case later than three years
from the date of approval of such plan (or any revision thereof
to take account of a revised primary standard); and (ii) in the
case of a plan implementing a national secondary ambient air
quality standard, it specifies a reasonable time at which such
secondary standards will be attained;
(B) it includes emission limitations, schedules, and timetables
for compliance with such limitations, and such other measures as
may be necessary to insure attainment and maintenance of such
primary or secondary standard, including, but not limited to,
land use and transportation controls;
(C) it includes a provision for establishment and operation
of appropriate devices, methods, systems and procedures necessary
to (i) monitor, compile, and analyze data on ambient air quality
and (ii) upon request, make such data available to the administra-
tor;
(D) it includes a procedure, meeting the requirements of paragraph
(4) for review (prior to construction of modification) of the
location of new sources to which a standard of performance will
apply;
10-8
-------
(E) it contains adequate provisions for intergovernmental cooperation,
including measures necessary to insure that emissions of air pollutants
from sources located in any air quality control region will not interfere
with the attainment and maintenance of such primary or secondary standard
in any portion of such region outside of such State or in any other air
quality control region;
(F) it provides (i) necessary assurances that the State will have ade-
quate personnel, funding and authority to carry out such implementation
plan, (ii) requirements for installation of equipment by owners or oper-
ators of stationary sources to monitor emissions from such sources, (iii)
for periodic reports on the nature and amount of such emissions; (iv) that
such reports shall be correlated by the State agency with any emission
limitations or standards established pursuant to this Act, which reports
shall be available at reasonable times for public inspection; and (v)
for authority comparable to that in Section 303, and adequate contingency
plans to implement such authority;
(G) it provides, to the extent necessary and practicable, for periodic
inspection and testing of motor vehicles to enforce compliance with
applicable emission standards; and
(H) it provides for revision, after public hearings, of such plan
(i) from time to time as may be necessary to take account of revisions
of such national primary or secondary ambient air quality standard or
the availability of improved or more expeditious methods of achieving
such primary or secondary standard; or (ii) whenever the administrator
finds on the basis of information available to him that the plan is sub-
stantially inadequate to achieve the national ambient air quality primary
10-9
-------
or secondary standard which it implements..
If a plan meets these requirements which do not mention preventing
deterioration of air quality in clean air areas, the administrator must
approve the plan. EPA thus concluded that nowhere does the Act give
23
him the authority to reject a plan for any other reason.
EPA argued that the aim of the Clean Air Act was to protect the
public health and welfare by establishing the national primary and
secondary standards. The secondary standards are based on the best
technical knowledge below which there are no known or anticipated ad-
verse effects of air pollutants. Section 116 of the Act provides that
any state may adopt stricter standards than those required by the national
secondary standards. Section 116 was designed to leave this type of de-
termination to the states and therefore the administrator's interpretation
of Section 110 is correct. EPA contends that, in an Act drawn with such
care and detail, if Congress has intended that non-deterioration be in-
24
eluded, it would have specifically provided so in Section 110.
EPA said the legislative history of the Act supported the adminis-
trator's interpretation. The Clean Air Act of 1967 provided that states
would have to establish ambient air quality standards for the regions
within each state and submit implementation plans to the Secretary of
HEW which described how the ambient air quality standards would be en-
25
forced. In the 1970 Clean Air Act the administrator of EPA is
required to establish national ambient air quality standards. States
need not set any ambient air quality standards themselves, although they
can set stricter ones. The Clean Air Act of 1970 is more comprehensive
than the 1967 Act or the 1970 Senate bill which was the basis for a large
10-10
-------
portion of the 1970 Act. Federal standards were required to protect public
health and welfare in the 1970 Act, whereas the 1967 Act did not provide for
any federal standards and the 1970 Senate bill provided for only federal
26
primary standards, EPA noted.
Section 110 of the Senate bill provided that the administrator
should set national ambient air quality goals as well as national ambient
air quality standards. The bill did not require the attainment of air
quality goals within a specified time period. The bill was amended to
change goals with their lack of any timetable to the specific secondary
standards which were to be implemented within a reasonable time. The
secondary standards must protect the public from any "known or anticipated
adverse effects" resulting from air pollution. The language used by Con-
gress does not deal with non-degradation or non-deterioration, EPA concluded.
The agency maintained that the language within the Senate Report, relied
upon by the District Court, is irrelevant to the Act as passed, since the
language refers to the Senate bill dealing with the goals and this por-
tion of the bill was never enacted into law. Even in the Senate bill
there was no mention of non-deterioration or non-degradation. Deteriora-
tion of air quality is prohibited by the implementation of standards ex-
27
cept where the existing air quality is better than the secondary standards.
EPA believed that Section 111 of the Act indicated that Congress
intended the new source performance standards to be the place to attack
the deterioration problem, rather than the approval of implementation
plans under Section 110. Section 111 established performance standards
for new stationary sources or modification of existing sources. The
standards are based on the best available technology, taking cost into
10-11
-------
account. States can have stricter standards and are in a better position
to attack the problem since they can weigh their own needs. EPA cited
the Senate Report, which covers the spates' responsibility for construction
28
of new sources:
In addition to direct emission controls, other potential parts of
an implementation plan include land use and air and surface trans-
portation controls. These should insure that any existing or future
stationary source of air pollution will be located, designed, con-
structed, equipped and operated, and that any moving source will
be located and operated so as not to interfere with the implementa-
tion, maintenance, and enforcement of any applicable air quality
standard or goal.
The Committee acknowledges that this would require each region to
make difficult judgments about the siting of facilities which may
emit pollutants, including decisions to prohibit the location
of new sources, which, although in compliance with Section 113,
would contribute to a violation of a regional air quality standard.
These factors would necessitate long-term decisions about the
character of the growth and development of such region.
In air quality control regions where present air quality is
below standard, rigorous restrictions must be placed on existing
sources to provide a margin for future growth, or only pollution-
free growth development will be possible.
EPA also argued that to attack the problem of deterioration at this stage
is logical because the problem does not exist until new sources are
introduced into areas where air quality is better than the secondary
standards.
10-12
-------
EPA also presented problems concerning the interpretation of the
term "significant deterioration" and the feasibility and extreme cost
of implementing the plaintiff's interpretation of the term. The ques-
tion of how much deterioration is significant was raised, since EPA
asserted that national secondary ambient air quality standards are
established at levels below which there are no known or anticipated
effects on public health or welfare. If deterioration is to be measured
in terms of ambient air levels, expansion of monitoring systems would
be required detracting funds from areas which have serious air pollution
problems. A policy of no significant degradation would also have eco-
nomic and social costs. It could stifle economic growth and the
attainment of other national economic goals, prevent the construction of
housing, stores and industrial plants in clean air areas where they are
29
needed, and also deprive heavily polluted areas of clean fuel.
IMPLICATIONS OF THE DECISION
The decision by the U.S. Supreme Court in favor of the Sierra Club
was an extremely important, if controversial, milestone in air quality
management. The decision prohibited EPA from allowing significant de-
terioration of air quality. This meant that air pollution problems could
not be solved entirely at the expense of cleaner areas of the country by
dispersing heavy sources of pollution. This will have the effect of for-
cing industry to direct more attention to the control of pollution problems
at the source. In the absence of this decision, industries would argu-
ably have the incentive to locate in rural areas until all parts of the
country were degraded to the secondary standard. Pure air areas such as
the Grand Canyon, vast areas of Montana and Wyoming were being threatened
10-13
-------
by growth of coal-burning power plants. Without the non-degradation prin-
ciple, it is asserted that the air in areas that now have 100-mile visi-
bility could be legally loaded with new pollutants that could cut visi-
30
bility to 12 miles.
Non-degradation emphasizes ^he importance of considering air quality
in future land use planning. Growth will theuietically not be allowed to
occur haphazardly without regard for air quality, but must be planned so
as not to significantly deteriorate air quality. The decision obviously
will foster long range planning.
The decision provides some degree of uniform regulation for the
entire country with relation to air quality. Leaving the determination
of stricter standards up to the states would not lead to uniform enforce-
ment, putting the state that enforces stricter air quality at a disadvan-
tage in the competition for new industry. This is probably the reason why
twenty states joined the Sierra Club as friends of the Court.
The Supreme Court decision will not go uncontested, however, as
there are those like the National Coal Association, who have called
31
for Congress to rewrite the Clean Air Act in order to modify the decision.
One important issue left unresolved by the Courts was the definition
of the term "significant deterioration." The Supreme Court affirmed the
lower court ruling in a 4-4 decision with Justice Lewis F. Powell not
participating. In accordance with traditional procedures, the tie vote
does not set legal precedent, no opinion was \vritten and the Justices'
32
votes were not disclosed. Due to the nature of the decision, the
Court's interpretation of this important terminology is unknown.
10-14
-------
APPROACHES TO IMPLEMENTING NON-DEGRADATION
EPA was left with the task of formulating a strategy for implementing
non-degradation and defining significant deterioration since it was not
defined by the courts. On July 13, 1973 EPA proposed four possible methods
of defining and preventing deterioration, each considerably different
from the others. One or a combination of the alternatives was to be
33
selected for implementation. Each of the four proposals set forth
would require that best available control technology be applied to certain
categories of new sources of sulfur dioxide, particulate matter, carbon
monoxide, hydrocarbons, and nitrogen oxides. Thus, EPA states, the non-
degradation requirement would apply directly or, in the case of photo-
chemical oxidents, indirectly to all pollutants covered by national am-
bient air quality standards. But this requirement would only apply to
34
16 categories of sources, and significant deterioration would only be
prevented for two pollutants, sulfur dioxide and particulates. The assum-
ption was made that a 90 per cent reduction in auto emissions and the
application of best available technology required by EPA would prevent
the occurence of a degradation problem for the other pollutants.
The first alternative sets a maximum allowable increase in ambient
air concentrations that would be established nation-wide. Measured in
terms of micrograms per cubic meter, particulate matter could increase
over 1972 levels by 10 on an annual average and 30 for a 24 hour average.
SO could raise by 15 on an annual average, 100 for the 24 hour average,
2 35
and 300 for a three hour average.
The second alternative would require a ceiling on increases in total
emissions with SO emissions limited to a 20 percent increase over 1972
2
10-15
-------
levels or 10 tons per year per square mile, whichever is greater. Particu-
lates would be limited to a 20 percent increase or 3 tons per year per
square mile, whichever is greater.
The third possibility would require the states to determine on a case
by case basis whether any new source would cause significant deterioration.
The fourth choice would allow states to identify areas belonging to one
of two allowable zones of degradation. Zone II areas would use ambient air
quality levels established under the first alternative. Zone I areas
would not be allowed to increase emissions of particulates more than 5
micrograms per cubic meter on an annual average or 15 for a 24 hour aver-
age; S0_ would not increase more than 2 on an annual average, 5 on a 24
hour average, or 25 for a three hour average. In Zone II areas, certain
exceptions could be made to allow air pollution levels to rise to the
secondary standards in order to allow certain tradeoffs, such as utilizing
the unusual availability of natural resources, or to lend support to a
comprehensive development plan.
IMPLICATIONS OF THE PROPOSALS
The suit of the Sierra Club, et al. v. William D. Ruckelshaus,
Administrator of the Environmental Protection Agency has determined that
the non-degradation interpretation of the Clean Air Act was intended by
Congress. In response, EPA prepared four proposals. Depending on your
position, each proposal has some merit or deficiency, but there is some
agreement on the impact of the proposals. For example, alternative one
would probably result in a wide dispersion of new sources over a region
with clean air and tend to force much of the new settlement and develop-
ment into the same areas where most of the population now lives! Under
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the second alternative, there is the possibility that the development of
small residential and commercial sources could be restricted if the
available increment were used up by a few large emitters. Under number
three (case-by-case decisions) there would be no control over the degree
of deterioration up to the secondary standards. This alternative is
particularly unpopular with environmental groups. Under the fourth
choice (two zones) Zone I requirements would result in the banning of
even one small power plant or medium scale urban development and would
be applied in very clean areas like national parks and wilderness areas.
At the time of this writing EPA has not selected any of the alter-
natives to promulgate as regulations. It is the authors' feeling that
some combination of alternatives three and four will be selected, since
some degree of local choice would be allowed, but limits would be estab-
lished that would require comprehensive long range planning by the states.
One can be assured, however, that the complex issues raised by a non-
degradation policy will be the subject of extensive litigation. But in
any case it is clear that such a policy places a constraint upon the
use of land and constitutes an interpretation of the Clean Air Act which
commands the consideration of air quality in the land use planning pro-
cess at all levels of government in the United States. In the future,
much more attention will also have to be addressed to monitoring:
monitoring air quality levels throughout the various states and monitoring
changes in land use. It is inevitable that greater knowledge of the inter-
action between land use and air quality will be required.
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NOTES
1. W. Weaver, Court Tells States They Cannot Permit Air Quality to
Drop, New York Times, June 11, 1973.
2. Brief for Appellees, Sierra Club v. Ruckelshaus, U.S. Court of
Appeals for the District of Columbia Circuit (1972').
3. Ibid., at 11-13.
4. Clean Air Act, 42 U.S.C. 1857, 101 (b) (1) (1970).
5. Sierra Club v. Ruckelshaus, supra note 2, at 12.
6. Sierra Club v. Ruckelshaus, supra note 2, at 12.
7. Appeals Court Upholds Non-degradation of Air Quality Ruling,
10 Weekly World Environmental Newsletter, (No. 45, November 6, 1972),
at 441.
8. EPA Asks Justice Department to Appeal Nondegradation Ruling to
High Court, Air/Water Pollution Report, (November 27, 1972), at 474.
9. Sierra Club v. Ruckelshaus, supra note 2.
10. Clean Air Act, ioi, supra note 4.
11. 40 CFR 50.2(c) (1971).
12. 40 CFR 51.12(b) (1970).
13. Sierra Club v. Ruckelshaus, supra note 2, at 5.
14. NAPCA, Guidelines for the Development of Air Quality
Standards and Implementation Plans, 1969, section 2.10.
(NAPCA, a part of HEW, is integrated into EPA).
15. Clean Air Act, SUDra note 4.
16. S. Rep. No. 403, 90th Cong., 1st sess. 2 (1970).
17. NAPCA, supra note 14, Section 1.51.
18. S. Rep. No. 1196, 91st Cong., 2nd sess. 2(1970).
19- 40 HFR S0.2(c) (1971).
20. 40 CFR 51.12(b) (1971).
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21. Brief for Appellant> Sierra Club v. Ruckelshaus, U.S. Court of
Appeals for the District of Columbia Circuit (1972).
22. Clean Air Act, 42 U.S.C. 1857, 110 (A-H) (1970).
23. Sierra Club v. Ruckelshaus, supra note 21, at 13.
24. Sierra Club v. Ruckelshaus, supra note 21, at 14-15.
25. Air Quality Act of 1967, P.L. 90-148, 108.
26. Sierra Club v. Ruckelshaus, supra note 21, at 17.
27. Sierra Club v. Ruckelshaus, supra note 21, at 20-2.
28. S. Rep. No. 91-1196, 91st Cong., 2nd Session 12-13 (1970).
29. Sierra Club v. Ruckelshaus, supra note 21, at 31-2.
30. G. Hill, Supreme Court and Air Pollution, New York Times, January
3, 1972.
31. Weaver, supra note 1.
32. Weaver, supra note 1.
33. 38 Fed. Reg. 18986 (1973).
34. The state of the art technology would also be required for
any other stationary source emitting more than 4,000 tons/
year of any pollutant covered by national ambient air
quality standards. The 16 categories include: fossil fuel-fired
steam electric plants of more than 1 billion BTU/hour heat
input; coal cleaning plants (thermal dryers); kraft
pulp mill recovery furnaces; Portland cement plants; primary
aluminum ore reduction plants; primary copper smelters;
municipal incinerators capable of charging more than
250 tons/day; sulfuric acid plants; petroleum refineries;
lime plants; phosphate rock processing plants;
byproduct coke oven batteries; sulfur recovery plants;
and carbon black plants (furnace process).
35. the primary S02 national ambient air quality standard is 80 micrograms
per cubic meter, annual arithmetic mean; the secondary is none.
The 24 hour maximum not to be exceeded more than once a year
is 365. The 3 hour maximum is only for the secondary standard
and is 1,300. For particulate matter, the annual geometric means
are 75 and 60, the 24 hour maximum is 260 and 150.
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CHAPTER ELEVEN
A PERSPECTIVE ON LAND USE CONTROLS
CONSTITUTIONAL ISSUES
Looking back over this volume, can we say with any optimism that
land use controls will be effective tools to assist in the achievement
and maintenance of air quality standards? More specifically, can we say
that the courts will allow land use controls to be used as an effective
tool? As in any other area of public regulation of economic activity,
land use controls that implement air pollution goals must meet certain
basic constitutional requirements which are aimed at protecting property
interests from unsupportable regulation. It should be noted, however,
that land use controls aimed at achieving air pollution objectives come
to the courts with comparatively strong legal backing. First, the United
States Supreme Court, and to a lesser extent the state supreme courts,
have accorded regulatory controls in the economic area a strong presumption
of constitutionality. Second, this presumption is reinforced when health
or safety objectives are the purpose of the regulation.
The comment, however, does deserve a caveat. In recent years the
courts have become sensitive to the possible exclusionary impact of
local land use controls as they affect housing opportunities, especially
11-1
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minority housing opportunities. So far the application to exclusionary
controls of the traditional presumption of constitutionality is not yet
clear. Some courts have accepted environmental protection objectives
to justify land use controls which exclude housing, and others have not.
As the trend of the law is not yet clear, this discussion will assume that
in the ordinary case the normal presumptions will apply.
Due Process of Law
By Due Process of Law we mean to include what lawyers call "substan-
tive" Due Process of Law. When courts review legislation to determine
whether it is in accord with substantive Due Process of Law they review
to determine whether the content of the legislation is consistent with
constitutionally permissible purposes. In the early part of this century,
the United States Court would often hold legislation unconstitutional if
it did not approve of its purpose. For example, laws prescribing minimum
hours of work were held unconstitutional. This emphasis has now changed
completely. Ordinarily, if the purpose to be served by the legislation
serves objectives which are reasonably debatable, the courts will affirm
the legislation. And in the health and pollution field, courts will
ordinarily accord a strong presumption to the purposes to be served by
the legislation.
The second part of the substantive Due Process of Law requirements
relates to the means which are chosen to achieve the purposes that have
been approved. This part of the Due Process requirement is slightly more
difficult. A law may serve a constitutionally acceptable purpose, but
the means chosen to carry it out may be unconstitutional. For example,
the control of air pollution is a constitutionally acceptable purpose
in land use regulation. But if the legislature attempts to achieve this
11-2
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purpose by restricting the size of all industrial plants to 1500 square
feet or less, the law will probably be held unconstitutional. The court
might find that the method of control -- restricting the size of the
industrial plants --is not related to the objective. Or the court
might find that other suitable alternatives for regulations are possible.
Or it might approve the concept of restricting plant size, but find that
the legislation in question has gone too far, and has over-restricted.
Equal Protection of Law
No law can apply equally to all of the objects which it regulates;
some classification is necessary. The purpose of the constitutional
protection that lawyers call the Equal Protection of the Law is to insure
that classifications among different objects of regulation will be fairly
drawn. If they are not fairly drawn, they will be held unconstitutional.
An example of a classification which the constitution specifically prohibits
is a classification based on race.
In the economic field, once again, the courts have been sympathetic
to classifications selected by the legislative body. But, once again,
the United States Supreme Court tends to be more lenient than the state
courts. The test applied here is roughly similar to the test applied in
the Due Process area. That is: (1) the criteria chosen for making the
classification must be reasonably related to the purpose of the legis-
lation, and (2) the criteria must be reasonably applied to the subject
matter that is being classified.
For example, let us assume a land use control system that decides to
classify various areas of a region for purposes of reducing air pollution.
A basis must be chosen for distinguishing one area of the region from
11-3
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another. Since the aim of the control is tie reduction of air pollution,
it would be reasonable under this system to control land uses in the region
on the basis of the amount of air pollution they generate. It is then
necessary to apply this criteria to different areas. One approach is to
provide by regulation that no additional pollution-generating uses may
be permitted in areas which have passed a defined pollution level, while
land uses be permitted in other areas where this level has not been
reached. Again, this would be a reasonable application of the pollution
criteria under which land use is regulated.
Delegation of Power
A final problem affecting governmental regulation in the land use
control area concerns the delegation of power from legislative to admin-
istrative bodies to apply and enforce the regulations that are enacted.
At the federal level, once more, the courts are fairly lenient about the
nature and content of the standards that are adopted to implement dele-
gations of power. At the state level, the courts are more cautious.
When health and safety factors are used as the basis of the delegation,
the delegation standards present few problems. More problems are pre-
sented when more generalized standards are used that are not related
to health and safety, but to other factors that affect land use and
development. It has proved difficult to develop appropriate standards
for more generalized land use regulation. Some state courts have held
zoning ordinances unconstitutional, for example, when they authorize
administrative decisions based only on "general welfare" and similar
criteria. More specific and less qualitative standards will have to
be worked out to avoid constitutional objections to legislative dele-
gations of power in some jurisdictions.
11-4
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Effective Use of Controls
It seems likely that land use controls to achieve air quality objectives,
if properly administered, will meet little objection from the courts. In-
deed, it seems that legal issues should be considered a relatively minor
matter among the spectrum of problems that must be faced in relating air
quality management to land use planning. Two recent surveys of planning
agencies suggest that the prime problems are more technical and psycho-
logical in nature.
VIEWS OF PLANNING AGENCIES
A recent survey of interagency relationships among state and local
air pollution control agencies and comprehensive planning agencies in the
United States revealed that there is at present little communication be-
1
tween such agencies. There was evidence that the planning agencies went
to air pollution control agencies for advice and counsel, but little
evidence of the converse. Somewhat paradoxically, the planning agencies
feel they have a role in air pollution control, but were unable to clearly
define it. The standard response seems to be that the agencies are inter-
ested in air pollution control, but other work has already established
itself as having a higher priority. As might be expected, the chief
limitations the agencies see are in terms of staff and information.
This emphasis on staff trained in air quality work and this desire
for more technical information is viewed as an expression of a general
uneasiness about moving into a new area of work. Air quality, in par-
2
ticular, seems to create insecurities in terms of methodology.
A somewhat similar survey completed in 1972 concluded that the
extent to which air quality is given consideration in the planning process
11-5
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currently is largely related to the resources available to the planning
agency in terms of staff size, skills, and scope of planning projects,
as well as funds available for inhouse or consultant studies. In most
cases this survey found that where air pollution has been considered,
federal funds have been involved to some extent, and most of the studies
have been undertaken by university resources or by consultants. It was
also noted that attitudes of planners towards the relative inportance of
air pollution as a factor in land use planning varied widely. Most were
sympathetic with air pollution as a problem and as an issue of concern,
but many felt that it was a largely overplayed issue relative to other
planning concerns. As a general rule, it was found that little impor-
tance was attached to air quality as a planning criterion by planning
agencies within regions where air pollution currently is not a problem,
even though it potentially could become a significant, problem because of
expanding population and urban growth. The survey concluded that planning
agencies devote no more than the minimum essential effort to considering
air pollution in their staff efforts, noting that "perhaps the greatest
constraint to the consideration of air pollution is the fact that planning
agencies do not have staff with appropriate background and skills in air
pollution, do not have access to the required analytic tools nor the data
base required to project air quality resulting from proposed future land
use plans, and generally do not have the resources required to develop
4
these capabilities."
Similar surveys have not been made of air pollution control agencies.
It has been our experience, however, that somewhat similar problems
exist in air pollution control agencies. It is only a slight
11-6
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exaggeration to state that urban planners know little about air pollution
control and that air pollution control personnel know little about land
use planning. Clearly there is a need for an educational effort of con-
siderable proportions aimed at the staff level of both air pollution and
land use agencies if land use controls are to effectively aid in the
maintenance of air quality standards. In addition, adequate resources
are going to have to be set aside within these respective types of
agencies if anything more than lip service is to take place.
EDUCATIONAL EFFORTS
These recommendations suggest a strong educational role for the
Environmental Protection Agency and state agencies with land use and
air pollution responsibilities. This role should be effective on two
levels:
1) a general educational effort by EPA on the role of land
use planning in environmental management and an
associated effort by the states, and
2) technical assistance in the form of manuals and guidelines
prepared both by EPA and the states.
EPA does offer short courses on the relations between land use and
air quality which perform a useful function, but since nost are only offered
in EPA's ten regional offices, much of the potential audience is missed.
As the states become more involved in land use planning, it is incumbent
upon them to take on a greater educational role, possibly with the assis-
tance of EPA. In the longer run, the provision of technical assistance
must be given much more attention. State and local agencies will not be
11-7
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able to develop and implement land use programs that meet air quality
objectives unless they are given assistance. One can conclude this from
the two surveys mentioned above. Large and experienced agencies like
the California Air Resources Board can develop effective programs with
federal financial assistance, but the mere provision of funds will not
be adequate for the more typical agency. The preparation of guidelines
and manuals, including a standardized compilation of land use based air
pollution emission factors, will need to be made available to the states.
The states in turn will need to adapt these documents to their own spec-
ific needs.
POLITICAL BARRIERS TO IMPLEMENTATION
Land use controls that relate to air quality management can possibly
achieve the same level of unpopularity that transportation controls have
unless adequate attention is given to procedures that inform the public
of the need for and effectiveness of such controls. During the next, dec-
ade when control over land use will shift perceptibly from the local to
the state level, the issue of citizen participation in environmental man-
agement needs increased attention because of the almost inaccessible na-
ture of many agencies in state capitals. Land use controls that might
mandate changes in lifestyle cannot be announced in the newspaper by a
government bureaucrat. Public involvement., notably lacking in the devel-
opment of the transportation control strategies., will be critical if such
regulations are to become effective.
It seems likely that land use controls will, for the foreseeable
future, be implemented at the option of the states rather than mandated
across the board. This would seem to be desirable since they would
-------
not be viewed as being externally imposed as has been the case of the
transportation controls. But there is no question in the minds of the
authors that the major barrier to effective implementation of land use
controls for air quality management purposes is a political one. A
major recommendation therefore must be that land use controls should
not be viewed by air pollution agency personnel solely as technical
procedures that will yield a clearly specified level of pollution abate-
ment. Land use planning has an impact over the long run as result of a
whole series of major and minor incremental decisions, only some of which
are related to air pollution control. In all of these decisions, however,
there is a political element. For better or worse, air pollution control
agency staffs which become involved in land use decisions must realize
that they are no longer dealing with a strictly scientific issue where
there is a clear cause and effect relationship.
THE DEFICIENCIES OF SINGLE SECTOR PLANNING
It is becoming apparent that land use control programs with air
quality objectives are coming in conflict with other single purpose and
more comprehensive planning efforts. More attention will have to be
given in the future to the coordination of functional environmental pro-
grams and the relationship between environmental programs and other
economic and social decisions that impact on land use. Although there
is a considerable tradition of special purpose planning associated with pub-
lic works agencies in the United States, such planning associated with
regulatory programs has a much more mixed history. This is because
the regulatory programs often have to be implemented by agencies other
11-9
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than those promulgating the regulations. An excellent case in point is
the example of the transportation control strategies which have involved
state highway departments and other similar agencies. Coordination, a
major concern of the urban planner, therefore must receive considerable
attention.
Will the backlash associated with the transportation control
strategies also occur in the area of land use controls? At this time, it
is difficult to say, but it seems that this is unlikely if_ controls are
understood by the general public and rf governmental agencies of various
types build up the capability to develop efficient and equitable programs
that are aimed at long term results. Short term ad hoc_ efforts seemed
doomed to failure. Let us look optimistically to the future, realizing that
the issues to be faced are exceedingly complex, but that the will to face
them exists in American society.
11-10
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NOTES
1. American Society of Planning Officials, Air Cnoality Control and
Comprehensive Planning (1973).
2. Ibid, 6.
3. A survey prepared under contract by Environmental Research and
Technology for the Environmental Protection Agency during 1972.
4. Ibid, 4.
11-11
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Appendix A
Vermont's Land Use and Development Law
Permit Issuance Conditions and Criteria
§6086. Issuance of permit; conditions and criteria
(a) Before granting a permit, the board or district commission
shall find that the subdivision or development:
(1) Will not result in undue water or air pollution. In making
this determination it shall at least consider: the elevation of
land above sea level; and in relation to the flood plains, the
nature of soils and subsoils and their ability to adequately sup-
port waste disposal; the slope of the land and its effect on
effluents; the availability of streams for disposal of effluents;
and the applicable health and water resources department regu-
lations .
(A) Headwaters. A permit will be granted whenever it is
demonstrated by the applicant that, in addition to all other
applicable criteria, the development or subdivision will meet
any applicable health and water resources department regu-
lation regarding reduction of the quality of the ground or
surface waters flowing through or upon land which are not
devoted to intensive developments, and which lands are:
(i) headwaters of watersheds characterized by steep
si opes and shallow soils; or
(ii) drainage areas of 20 square miles or less; or
(iii) above 1,500 feet elevation; or
(iv) watersheds of public water supplies designated
by the Vermont department of health; or
(v) areas supplying significant amounts of recharge
waters to aquifers
(B) Waste disposal. A permit will be granted whenever it
is demonstrated by the applicant that, in addition to all other
applicable criteria, the development or subdivision will meet
any applicable health and water resources department regu-
lations regarding the disposal of wastes, and will not involve
the injection of waste materials or any harmful or toxic sub-
stances ijvto ground water or wells.
A-l
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(C) Water conservation. A permit will be granted whenever
it is demonstrated by the applicant that, in addition to all
other applicable criteria, the design has considered water
conservation, incorporates multiple use or recycling where
technically and economically practical, utilizes the best
available technology for such applications and provides
for continued efficient operation of these systems.
(D) Floodways. A permit will be granted whenever it is
demonstrated by the applicant that, in addition to all other
applicable criteria:
(i) the development or subdivision of lands within a
floodway will not restrict or divert the flow of flood waters,
and endanger the health, safety and welfare of the public
or of riparian owners during flooding; and
(ii) the development or subdivision of lands within a
floodway fringe will not significantly increase the peak
discharge of the river or stream within or down stream for
the area of development and endanger the health, safety,
or welfare of the public or riparian owners during flooding.
(E) Streams. A permit will be granted whenever it is
demonstrated by the applicant that, in addition to all other
applicable criteria, the development or subdivision of lands
on or adjacent to the banks of a stream will, whenever
feasible, maintain the natural condition of the stream, and
will not endanger the health, safety, and welfare of the
public or of adjoining landowners.
(F) Shorelines. A permit will be granted whenever it is
demonstrated by the applicant that, in addition to all other
criteria, the development or subdivision of shorelines must
of necessity be located on a shoreline in order to fulfill the
purpose of the development or subdivision, and the develop-
ment or subdivision will, insofar as possible and reasonable
in light of its purpose:
(i) retain the shoreline and the waters in their natural
condition,
(ii) allow continued access to the waters and the
recreational opportunities provided by the waters,
(iii) retain or provide vegetation which will screen
the development or subdivision from the waters, and
(iv) stabilize the bank from erosion, as necessary,
with vegetation cover.
(2) Does have sufficient water available for the reasonably
foreseeable needs of the subdivision or development.
(3) Will not cause an unreasonable burden on an existing water
supply, if one is to be utilized.
(4) Will not cause unreasonable soil erosion or reduction in
the capacity of the land to hold water so that a dangerous or
unhealthy condition may result.
A-2
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(5) Will not cause unreasonable highway congestion or unsafe
conditions with respect to use of the highways existing or proposed.
(6) Will not cause an unreasonable burden on the ability of
a municipality to provide educational services.
(7) Will not place an unreasonable burden on the ability of
the local governments to provide municipal or governmental services.
(8) Will not have an undue adverse effect on the scenic or
natural beauty of the area, aesthetics, historic sites or rare
and irreplaceable natural areas.
(A) Necessary wildlife habitat and endangered species.
A permit will not be granted if it is demonstrated by any
party opposing the applicant that a development or sub-
division will destroy or significantly imperil necessary
wildlife habitat or any endangered species, and
(i) the economic, social, cultural, recreational, or
other benefit to the public from the development or sub-
division will not outweigh the economic, environmental,
or recreational loss to the public from the destruction or
imperilment of the habitat or species, or
(ii) all feasible and reasonable means of preventing
or lessening the destruction, diminution, or imperilment
of the habitat or species have not been or will not con-
tinue to be applied, or
(iii) a reasonably acceptable alternative site is
owned or controlled by the applicant which would allow
the development or subdivision to fulfill its intended
purpose.
(9) Is in conformance with a duly adopted capability and
development plan, and land use plan when adopted. However,
the legislative findings of sections 6(a)(l) through 6 (a) (19) of
this act shall not be used as criteria in the consideration of
applications by a district commission or the environmental board.
(A) Impact of growth. In considering an application,
the district commission or the board shall take into consider-
ation the growth in population experienced by the town and
region in question and whether or not the proposed develop-
ment would significantly affect their existing and potential
financial capacity to reasonably accommodate both the total
growth and the rate of growth otherwise expected for the town
and region and the total growth and rate of growth which would
result from the development if approved. After considering
anticipated costs for education, highway access and main-
tenance, sewage disposal, water supply, police and fire ser-
vices and other factors relating to the public health, safety
and welfare, the district commission or the board shall
impose conditions which prevent undue burden upon the town
and region in accommodating growth caused by the proposed
development or subdivision. Notwithstanding section 6088
of the act the burden of proof that proposed development
will significantly affect existing or potential financial
A-3
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capacity of the town and region to accommodate such growth
is upon any party opposing an application, excepting how-
ever, where the town has a duly adopted capital improvement
program the burden shall be on the applicant.
(B) Primary agricultural soils. A permit will be granted
for the development or subdivision of primary agricultural
soils only when it is demonstrated by the applicant that,
in addition to all other applicable criteria, either, the
subdivision or development will not significantly reduce
the agricultural potential of the primary agricultural soils;
or,
(i) the applicant can realize a reasonable return on
the fair market value of his land only by devoting the
primary agricultural soils to uses which will signifi-
cantly reduce their agricultural potential; and
(ii) there are no nonagricultural or secondary agri-
cultural soils owned or controlled by the applicant which
are reasonably suited to the purpose; and
(iii) the subdivision or development has been planned
to minimize the reduction of agricultural potential
by providing for reasonable population densities, reason-
able rates of growth, and the use of cluster planning and
new community planning designed to economize on the
cost of roads, utilities and land usage; and
(iv) the development or subdivision will not signi-
ficantly interfere with or jeopardize the continuation of
agriculture or forestry on adjoining lands or reduce their
agricultural or forestry potential.
(C) Forest and secondary agricultural soils. A permit
will be granted for the development or subdivision of forest
or secondary agricultural soils only when it is demonstrated
by the applicant that, in addition to all other applicable
criteria, either, the subdivision or development will not
significantly reduce the potential of those soils for
commercial forestry, including but not limited to specialized
forest uses such as maple production or Christmas tree pro-
duction, of those or adjacent primary agricultural soils for
commercial agriculture; or
(i) the applicant can realize a reasonable return
on the fair market value of his land only by devoting
the forest or secondary agricultural soils to uses which
will significantly reduce their forestry or agricultural
potential; and
(ii) there are no non-forest or secondary agri-
cultural soils owned or controlled by the applicant
which are reasonably suited to the purpose; and
(iii) the subdivision or development has been
planned to minimize the reduction of forestry and agri-
cultural potential by providing for reasonable population
A-4
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densities, reasonable rates of growth, and the use of
cluster planning and new community planning designed
to economize on the cost of roads, utilities and land
usage.
(D) Earth resources. A permit will be granted whenever
it is demonstrated by the applicant, in addition to all other
applicable criteria, that the development or subdivision of
lands with high potential for extraction of mineral or earth
resources, will not prevent or significantly interfere with
the subsequent extraction or processing of the mineral or
earth resources.
(E) Extraction of earth resources. A permit will be
granted for the extraction or processing of mineral and
earth resources:
(i) when it is demonstrated by the applicant that,
in addition to all other applicable criteria, the ex-
traction or processing operation and the disposal of
waste will not have an unduly harmful impact upon the
environment or surrounding land uses and development;
and
(ii) upon approval by the district commission or
the board of a site rehabilitation plan which insures
that upon completion of the extracting or processing
operation the site will be left by the applicant in
a condition suited for an approved alternative use
or development. A permit will not be granted for
the recovery or extraction of mineral or earth
resources from beneath natural water bodies or
impoundments within the state, except that gravel,
silt and sediment may be removed pursuant to
the regulations of the water resources board.
(F) Energy conservation. A permit will be granted when
it has been demonstrated by the applicant that, iu addition
to all other applicable criteria, the planning and design
of the subdivision or development reflect the principles
of energy conservation and incorporate the best available
technology for efficient use or recovery of energy.
(G) Private utility services. A permit will be granted
for a development or subdivision which relies on privately-
owned utility services or facilities, including central
sewage or water facilities and roads, whenever it is dem-
onstrated by the applicant that, in addition to all other
applicable criteria, the privately-owned utility services
or facilities are in conformity with a capital program or
plan of the municipality involved, or adequate surety is
provided to the minicipality and conditioned to protect
the municipality in the svent that thp municipality i<*
required to assume the responsibility for the' sen/ices
or facilities.
A-5
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(H) Costs of scattered development. The district com-
mission or board will grant a permit for a development or
subdivision which is not physically contiguous to an
existing settlement whenever it is demonstrated that, in
addition to all other applicable criteria, the additional
costs of public services and facilities caused directly
or indirectly by the proposed development or subdivision
do not outweigh the tax revenue and other public benefits
of the development or subdivision such as increased em-
ployment opportunities or the provision of needed and
balanced housing accessible to existing or planned em-
ployment centers.
(J) Public utility services. A permit will be granted
for a development or subdivision whenever it is demon-
strated that, in addition to all other applicable cri-
teria, necessary supportive governmental and public utili-
ty facilities and services are available or will be available
when the development is completed under a duly adopted
capital program or plan, an excessive or uneconomic demand
will not be placed on such facilities and services, and
the provision of such facilities and services has been
planned on the basis of a projection of reasonable
population increase and economic growth.
(K) Development affecting public investments. A
permit will be granted for the development or subdivision
of lands adjacent to governmental and public utility
facilities, services, and lands, including, but not
limited to, highways, airports, waste disposal facilities,
office and maintenance buildings, fire and police stations,
universities, schools, hospitals, prisons, jails, electric
generating and transmission facilities, oil and gas pipe
lines, parks, hiking trails and forest and game lands,
when it is demonstrated that, in addition to all other
applicable criteria, the development or subdivision will
not unnecessarily or unreasonably endanger the public
or quasi-public investment in the facility, service, or
lands, or materially jeopardize or interfere with the
function, efficiency, or safety of, or the public's use
or enjoyment of or access to the facility, service, or
lands.
(L) Rural growth areas. A permit will be granted for
the development or subdivision of rural growth areas when
it is demonstrated by the applicant that in addition to
all other applicable criteria provision will be made in
accordance with section 6086(a)(9)(A) "impact of growth",
(G) "private utility service", (H) "costs of scattered
development" and (J) "public utility services" for rea-
sonable population densities, reasonable rates of growth,
and the use of Cluster planning and new community
planning designed to economize on the cost of roads,
utilities and land usage.
(10) Is in conformance with any duly adopted local or
regional plan or capital program under chapter 91 of Title 24.
A-6
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TECHNICAL REPORT DATA
(Please read IUUFIClions on the re\ irsc bciurc completmgl
1 REPORT NO
EPA-450/3-75-038
3 RECIPIENT'S ACCESSION-NO.
4. TITLE AND SUBTITLE
The Contribution of Urban Planning to Air Quality
5. REPORT DATE
February 1974
6. PERFORMING ORGANIZATION CODE
7. AUTHOR(S)
George Hagevik, Daniel Mandelker, Richard Brail
8. PERFORMING ORGANIZATION REPORT MO.
9 PERFORMING ORGANIZATION NAME AND ADDRESS
Center for Urban Policy Research
Rutgers University
New Brunswick, New Jersey 08903
10. PROGRAM ELEMENT NO.
11. CONTRACT/GRANT NO
68-02-0278
12. SPONSORING AGENCY NAME AND ADDRESS
13. TYPE OF RE PORT AND PERIOD COVERED
Environmental Protection Agency
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 277T1
Final
14. SPONSORING AGENCY CODE
15. SUPPLEMENTARY NOTES
16. ABSTRACT
The focus of this study is on how air pollution relates to land use planning.
Of central concern is the land use planning implications of the 1970 Clean Air
Amendments. Major topics are a) the potential role of land use controls under
the Clean Air Act of 1970, b) the Vermont and Maine comprehensive land use statutes--
an analysis of procedures, c) administrative review procedures for relating land
use planning to air quality management, d) buffer zones as a control over air
pollution—an application of the eminent domain and zoning powers, e) selected
local controls, f) the generation of emissions, g) the dispersion of pollutants,
h) air quality management in California, i) the controversy over non-degradation,
and j) a perspective on land use controls.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
b.IDENTIFIERS/OPEN ENDED TERMS C. COSATi field/Group
Clean Air Amendments, 1970
Land Use Planning
Vermont and Maine Land Use Statutes
California air quality management
Buffer zones—eminent domain & zoning power
Pollutants dispersion
Non-degradation
13, DISTRIBUTION STATEMENT
Distribution Unlimited
19. SECURITY CLASS (This Report)
Unclassified
21 NO. OF PAGES
477
20 SECURITY CLASS (This page)
Unclassified
22 PRICE
EPA Form 2220-1 (9-73)
B-10
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